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MARKETING AFFILIATE AGREEMENT

 This Marketing Affiliate Agreement (the “Agreement”) is entered into as of ______________ (the

“Effective Date”) by and between Pompa Program LLC, a Utah limited liability company (the

“Company”), and __________________, a/an ("Affiliate”).

1.                   Services.  The Affiliate will provide to Company the non-exclusive services of referring

Customer traffic to the Company’s website for purchasing (the “Services”), subject to the terms and

conditions contained in this Agreement.  Company and Affiliate may, from time to time, execute

additional addenda to this Agreement describing additional Services, payment terms or Locking Periods

which will be made a part of this Agreement and become subject to its terms. 

2.                   Definitions.  The following definitions apply in this Agreement:

a) “Completed Transaction” means the goods or services of the Company ordered by a Customer

have been delivered, the Locking Period has expired, and the goods or services were paid for

in full.

b) “Locking Period” means the period of time in which the goods or services may be returned by,

cancelled, or refunded to a Customer after a purchase.

c) “Customer” means a person or party who purchases goods or services in accordance with this

Agreement.

d) “Links” means a link from a hypertext document or site to another location, activated by

clicking on a highlighted word or image or banner provided by the Company.

e) “Affiliate Site” means the website or social media channel in which the Affiliate is authorized

by the Company to market the Company’s goods or services.

f) “Net Price” is the value at which goods or service are sold after all taxes and other costs are

added and all discounts subtracted. Net Price is what a Customer pays to the Company. To

calculate the net price, start with the list price and add any taxes and other government-

mandated charges.

3.                   Affiliate Site and Content.  Affiliate has sole responsibility and liability for the preservation,

operation, maintenance and all materials and content that appear on the Affiliate Site. Affiliate shall

manage the Affiliate Site in accordance with all applicable laws, rules, and regulations. Affiliate agrees to

place one of more of the Links on the Affiliate Site, in accordance with this Agreement. Company

reserves the right, at any time, to monitor the Affiliate Site to verify it complies with this Agreement. In

the event Affiliate does not properly use the Links provided by Company, and the traffic cannot be

properly tracked to confirm a Customer and/or Completed Transaction was generated from the Affiliate

Site, Company has no obligation to pay any associated Fees to Affiliate.

4.                   Brand Bidding.  Affiliate shall not bid on any keywords or phrases that contain or are

variations of the Company’s trademarks, trade names, brand names, domain names, or any other

intellectual property rights (collectively, the “Branded Terms”) on any online advertising platform,

including but not limited to Google, Bing, Yahoo, Facebook, Instagram, Twitter, or any other similar

platform (collectively, the “Advertising Platforms”). The Affiliate shall also not use the Branded Terms in

any ad copy, display URL, landing page, or any other promotional material. The Affiliate shall add the

Branded Terms as negative keywords to its paid search campaigns and ensure that its ads do not appear

on any search results or web pages that are related to the Branded Terms. The Affiliate acknowledges and

agrees that the Company has the exclusive right to use and protect the Branded Terms and that any

unauthorized use of the Branded Terms by the Affiliate constitutes a material breach of this Agreement

and violation of the Company’s intellectual property rights.

The Affiliate further acknowledges and agrees that any such breach or violation will cause irreparable

harm and damage to the Company and entitles the Company to seek injunctive relief and/or terminate this

Agreement immediately without prior notice. The Affiliate shall also be liable for any damages, losses,

costs, or expenses incurred by the Company as a result of any violation of this provision and/or its

enforcement.

 5.                   Fees and Payments.  Subject to Affiliate use of the Links in accordance with this Agreement,

Affiliate will be compensated based upon the Net Price from Completed Transactions, as outlined and

calculated on Schedule 1 attached hereto and made a part hereof (the “Fees”). Company retains the right

of setoff with respect to the Fees. The Fees may be offset with respect to each Completed Transaction

for:

a) The Company issuing discounts, credits, or allowances; and

b) Chargebacks issued against the Company.

The Company retains the right at any time to refuse an attempted purchase by any person. Affiliate shall

have no claim to any Fee based upon the Company’s decision to disallow the transaction with any person

who purchased using the Links. The Fees will be paid via direct deposit or PayPal based on Affiliate’s

designation within the Company provided tracking system.

Affiliate may be required to file or provide necessary documents for tax purposes, including, but not

limited to a completed Form W-9. Payments of Fees may be suspended based on Affiliate non-

compliance.

6.                   Fulfillment.  Company is solely responsible for the fulfilment of orders and processing of the

purchase of goods and services offered on Company’s site(s), subject to the Company’s terms and

conditions. All information regarding any Customer orders and Customers is the sole and exclusive

property of the Company. Affiliate agrees that the Company may collect, process, and sell certain

information about Customers and/or Affiliate related to the Services. 

7.                   Limited Revocable License.  Affiliate agrees to place one or more of the Links on the Affiliate

Site(s) identified on Schedule 2 attached hereto and made a part hereof. The Links may contain Company

logos, names, and trademarks (the “Marks”). Pursuant to this Agreement, the Company grants Affiliate a

non-exclusive, limited, non-transferable, and revocable license to display the Links on the Affiliate

Site(s). In no way does this Agreement give the Affiliate permission to post the Links on any other site or

for any other purpose other than as expressly agreed herein unless the Affiliate obtains prior written

consent from the Company. Affiliate may not add, alter, or delete anything from the Links or Marks.

Affiliate further agrees and covenants not to acquire or attempt to acquire, register, or attempt to register,

make a claim to or in any way use domain names, trademarks, keywords, handles, screen names or other

forms of identification incorporating the Marks. All intellectual property rights in the Marks, and any

goodwill generated by Affiliate’s use of the Marks in accordance with this Agreement shall inure solely to

the benefit of the Company. Upon termination of this Agreement, the rights granted in this provision shall

automatically and immediately terminate.

8.                   Representations and Warranties.  Affiliate represents and warrants that they are legally

capable and authorized to enter into this Agreement. Affiliate the sole owner of the Affiliate Site. The

Affiliate Site does not and shall not: i) contain any information which is known to be false, ii) contain or

transmit any apps or programs that can be downloaded or installed by the customer, without their

knowing consent of the exact nature, purpose and function of the app or programs, and iii) not use the

Company’s name in a form of unsolicited communication, including spam. Affiliate represents and

warrants the Services provided shall comply with applicable laws, rules, and regulations, including, but

not limited to US Federal CAN-SPAM Acts and the Federal Trade Commission's Rules and Guides

concerning the Services.

9.                   Limitation of Liability.  Company will not be liable to Affiliate, whether in contract, tort, or

restitution, or breach of statutory duty, or otherwise, for any loss of profit, goodwill, business, business

opportunity, anticipated savings, corruption of data or information, contracts, use of money, actual

savings, revenue, loss of reputation, ex gratia payments, loss of operation time, or special, indirect, or

consequential damage or loss suffered by the Customer, arising under or in connection with this

Agreement. Under no circumstances shall the Company or its members, officers, managers, employees,

affiliates, agents, and representatives be liable for any direct, indirect, incidental, special or consequential

damages that result directly or indirectly from the use or inability to use the Company site(s) or that result

directly or indirectly from mistakes, omissions, interruptions, deletion of files, viruses, errors, defects, or

any failure of performance, communications failure, theft, destruction or unauthorized access with regard

thereto.

10.                   Term and Termination.  This Agreement shall commence upon the Effective Date and shall

continue until terminated by either party as stated herein. Affiliate may terminate this Agreement for any

reason by providing thirty days prior written notice to Company. Company may terminate this

Agreement, in whole or in part, for any reason upon written notice to Affiliate. In the event of a breach of

this Agreement, the non-defaulting party shall give written notice specifying the breach, and if it is not

cured within ten (10) days of such notice, the non-defaulting party may terminate the Agreement. Upon

termination of this Agreement for breach of Affiliate, payment of Fees to the Affiliate shall terminate

immediately. Upon termination for reasons other than Affiliate breach, any fees earned by Affiliate for

the Services through the date of termination shall be paid at a time agreed between Affiliate and the

Company. Upon termination by either party, all rights and licenses granted in this agreement shall

immediately cease, and Affiliate shall immediately remove the Links and Marks from Affiliate Site.

11.                   Independent Contractor.  Affiliate shall perform the Services solely as an independent

contractor. This Agreement does not create any association, partnership, joint venture, employee, or

agency relationship between Affiliate and Company for any purpose. Affiliate has no authority (and will

not hold itself out as having authority) to bind Company and will not make any agreements or

representations on Company’s behalf. The Company is not responsible for withholding or paying any

income, payroll, Social Security, or other taxes, making any insurance contributions, including

unemployment or disability, or obtaining worker's compensation insurance on Affiliate’s behalf. Affiliate

is solely responsible for all such taxes and contributions, including penalties and interest. Affiliate is not

eligible under this Agreement to participate in any Company benefits, such as time off, medical, profit

sharing, or retirement benefits.

12.                   Confidentiality and Nondisclosure.  Affiliate agrees that at no time (either during or

subsequent to the term of this Agreement) will Affiliate disclose or use, except as expressly agreed in this

Agreement, any Proprietary and Confidential Information of Company, acquired during the term of this

Agreement.  The term “Proprietary and Confidential Information” shall mean, but is not limited to, all

information that is known or intended to be known only to Company and its employees, including any

document, record, financial or other information of Company or others in a confidential relationship with

Company, or information related to specific business matters, such as the identity of the Company’s

clients, Customers or the Company’s policies and procedures, fee structures, trade secrets, proprietary

know-how, account information, data, business methods, programs, plans, technologies, products,

techniques or processes and other information held in confidence whether in tangible or intangible form

that is marked or designated as confidential or that, under the circumstances of its disclosure, should be

considered confidential. Affiliate agrees to keep all such information confidential and not share or

reproduce in any way without Company’s advance written permission except as required by law. Affiliate

acknowledges that violation of this Confidentiality and Nondisclosure section will cause irreparable harm

to the Company that may not be adequately compensable by monetary damages, and Company reserves

the right to seek any and all relief available to it under law, contract, or in equity. This Section shall

survive termination or expiration of this Agreement.

13.                   Waiver.  Affiliate hereby expressly waives any and all potential claims against the Company

arising from the following: i) Company site is partially or totally inaccessible and unusable; ii) any bugs,

errors, or viruses affecting Company site; or iii) Affiliate suspension or termination of this Agreement or

any other exercise of a remedy or right by the Company pursuant to this Agreement. A waiver of any right

or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of

any subsequent or other right or remedy. A failure or delay by a party to exercise any right or remedy

provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy.

Affiliate is exclusively responsible for the safekeeping and management of Affiliate Site(s), passwords and

usernames. Any dispute Affiliate may raise shall be as an individual only and not as a part of any class or

group.

14.                   Indemnification. Company and its affiliates, owners, members, managers, officers,

employees, and agents shall be collectively referred to as “the Company Indemnitees”. Affiliate agrees to

indemnify, defend, and hold harmless the Company Indemnitees from any and all actions, suits, claims,

demands, debts, damages, expenses, costs, penalties, injuries incurred by any of them arising from: i)

Affiliate’s misrepresentation; ii) breach of any covenant, warranty, term or condition applicable to

Affiliate in this Agreement; iii) nonfulfillment of any Affiliate obligation under this Agreement; iv) any

suit, proceeding, claim or investigation arising from the performance of the Services; v) defamation,

violation, unfair competition by Affiliate; vi) Affiliate’s failure to pay taxes on its Fees and any resulting

tax exposure to the Company; vii) Affiliate’s violation of any applicable intellectual property laws.

15.                Miscellaneous.

15.1        Attorneys’ Fees.  The prevailing party in any dispute relating to this Agreement shall

be entitled to recover from the non-prevailing party all attorney's fees and costs incurred by the

prevailing party in connection with any litigation or other enforcement of this Agreement. 

15.2            Law and Jurisdiction.  This Agreement is governed by and construed in accordance

with the laws of Utah without giving effect to any conflict of laws provisions that would result in

the application of the laws of a different jurisdiction. Each party agrees to institute any legal suit,

action, or proceeding arising out of this Agreement or the Services in the federal or state courts

in each case located in Park City, Utah.

15.3            Assignment. This agreement is personal to Affiliate. Neither this Agreement nor any of

the rights, interests, or obligations hereunder shall be assigned by the Affiliate (whether by

operation of law or otherwise) without the prior written consent of the Company. Affiliate will

not otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of its

obligations or performance, under this Agreement. Any attempt to assign, delegate, or transfer in

violation of this paragraph is void. Company may freely assign or otherwise transfer all or any of

its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this

Agreement. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of

the parties and their respective permitted successors and assigns.

15.4     Non-Disparagement. Affiliate shall not, at any time during the Term and thereafter,

make statements or representations, or otherwise communicate, directly or indirectly, in writing,

orally, or otherwise, or take any action which may, directly or indirectly, harm or disparage the

reputation, goods or services, or business of the Company or any of its subsidiaries or affiliates

or their respective members, managers, officers, directors, employees, advisors, agents.

Notwithstanding the foregoing, nothing in this Agreement shall preclude Affiliate from making

truthful statements that are required by applicable law, regulation, or legal process. This Section

15.4 shall survive termination or expiration of this Agreement.

15.5 Non-Solicitation/Non-Compete.  During the Term of this Agreement and for a period of

12 months thereafter, Affiliate will not directly or indirectly solicit or seek to procure (other than

by general advertising) the employment of Company’s employees or the business of Company’s

Customers or clients. This Section 15.5 shall survive termination or expiration of this

Agreement.

15.6       Entire Agreement; Amendment; Waiver.  This Agreement constitutes the entire

agreement of the parties regarding the subject matter hereof and supersedes all prior

representations, proposals, discussions, and communications, whether oral or in writing.  This

Agreement may be modified only in a writing signed by the parties.  Either party’s waiver of a

default by the other does not constitute a waiver of future or other defaults.