Before agreeing to participate in the Max Value Affiliate Program (the “Program”), this Max Value Affiliate Program Agreement (the “Agreement”) should be read carefully by the individual or other legal entity that is authorized to execute it the “Affiliate”). This Agreement sets forth all of the terms and conditions that govern the relationship between Max Value Software, LLC, a a Delaware limited liability company limited liability company (“Max Value”) and the Affiliate.
The Affiliate desires to become associated with Max Value so that the Affiliate may market and promote Max Value's software and/or related products and services, all as Max Value may designate during the term of this Agreement (all such products and services are hereinafter, collectively, the “Products”).
By clicking the “I Agree” button below, the Affiliate is executing and consenting to the terms and conditions set forth in this Agreement, as the same may be updated or modified from time to time in accordance with the provisions set forth below and the Affiliate agrees that this Agreement constitutes a legally binding agreement between Max Value and the Affiliate.
Preamble and Definitions
When used in this Agreement, each of the following terms has the meaning attributed to it below:
- “Affiliate Marketing Account(s)” means those email accounts and other social media accounts that are owned and/or controlled by the Affiliate and that are submitted by the Affiliate as marketing accounts that are to be included in the Program.
- “Commission” has the meaning set forth in Section 4.A below.
- “Confidential Information” means any Max Value or Affiliate information disclosed to the other party, whether orally, in writing, in any other medium, however documented (or not documented), by or on behalf of the disclosing party, including, without limitation, Trade Secrets, Max Value’s and Affiliate’s software and other products, any proposed or planned products, any new or proposed functionality, feature, or component of any of either party’s current or future software, actual and proposed business(es); historical and projected financial information; budgets; services; trade secrets; techniques; processes; operations; formulae; product specifications; know‑how; compositions; designs; sketches; drawings; samples; formats; marketing and manufacturing plans and materials; analyses; strategies; forecasts; research and development; concepts; ideas; names, addresses and any other characteristics, identifying information or aspects of existing or potential customers, joint venture partners, employees, vendors or suppliers; or any information derived, summarized or extracted from any of the foregoing. Confidential Information shall be deemed to include any information relating to the existence or proposed creation of any new version or iteration of Max Value’s and Affiliate’s products or services.
- “Effective Date” means the date the Affiliate executes this Agreement by electronically clicking on the “I Agree” button at the end of this Agreement.
- “Link(s)” means the banners, text links, and other links posted on the Website(s) or on or through the Affiliate Marketing Accounts that link to the Max Value website and/or the Products.
- “Products” means Max Value software and/or such other related products and services as designated by Max Value from time to time.
- “Qualified Customer” means an Internet user without a prior account with Max Value who accesses the Max Value website directly through a Link and purchases one or more of the Products.
- “Tracker” means the Post Affiliate Pro tracking server (or similar tracking server) used by Max Value for the purpose of tracking the origin of Qualified Customers and calculating the amount of Commissions owed to the Affiliate.
- “Trademarks” includes but is not limited to any business mark, service mark and/or trade dress created, used, registered, or applied for by Max Value, including, without limitation, the “Max Value” name and logos. Trademarks shall be deemed to include all of the foregoing whether or not registered with any Federal, state or foreign registration office and shall be deemed to include those Max Value marks in which Max Value has common law rights.
- “Trade Secrets” means any know-how, trade secrets, marketing information, business plan, market information, customer lists, network clients list, suppliers’ information, or other related confidential information concerning or relating to the activities of Max Value and any entity with which Max Value is affiliated as an owner, member, partner, or joint venturer.
- “Verified Sales” means the gross sales of the Products that are purchased by Qualified Customers who have used a Link from the Affiliate, as verified by the Tracker; provided, however, that a sale of a Product shall not be included in gross sales if, on or prior to the expiration of the 30-day account review period (“Review Period”), a Qualified Customer requests a refund of the purchase price of such Product; provided further, however, that if a Qualified Customer uses a Link from the Affiliate as well as a link from another affiliate in the Program, the sale of a Product shall not be included in gross sales unless the Affiliate’s Link was the most recent link used by such Qualified Customer.
- “Website(s)” means the website(s) that are owned and/or controlled by the Affiliate and that are submitted by the Affiliate as websites that are to be included in the Program.
- The title headings of the Sections of this Agreement are solely for the sake of convenience and shall bear no weight in the interpretation of this Agreement. The Preamble to this Agreement constitutes an integral part hereof.
- Where the context requires, words importing the singular shall include the plural and vice versa.
- When used in this Agreement, each of the following terms has the meaning attributed to it below:
Application to Join the Program
- In order to become an affiliate of Max Value, the Affiliate must submit a completed Max Value Affiliate Application Form at https://www.pokertracker.com/affiliate/affiliates/signup.php
- Max Value will review the Affiliate’s application and Max Value may then, in its sole discretion, notify the Affiliate that Max Value accepts or rejects the Affiliate’s application to participate in the Program and/or require further information from the Affiliate.
- In the event that Max Value requests additional information from the Affiliate in accordance with Section 2.B above, the Affiliate’s application will, following submission of all requested additional information, be treated as having been resubmitted to, and Max Value will review it in its entirety and notify the Affiliate if Max Value accepts or rejects the Affiliate’s application to participate in the Program. Max Value retains the right to approve or reject any Affiliate applications as determined by Max Value in its sole subjective discretion.
- Without limiting Max Value’s discretion to determine that any Affiliate, Website or Affiliate Marketing Account is not suitable for the Program, Max Value will reject the Affiliate’s application if, in its sole discretion, Max Value determines that any of the content included on a Website or on or through an Affiliate Marketing Account is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, including, without limitation, content that (i) is aimed at minors, (ii) displays sexual, pornographic, or obscene acts, (iii) contains graphic violence, (iv) contains discriminatory content (whether based on race, gender, religion, nationality, ethnicity, sexual preference, physical disability, or otherwise), or (v) violates the intellectual property rights of any other person or entity.
- If Max Value approves the Affiliate’s application to participate in the Program, the Affiliate’s participation in the Program will be subject to all of the terms and conditions set forth in this Agreement.
- Subject to the terms and conditions set forth in this Agreement, Max Value grants to the Affiliate, for the term set in forth in Section 7.A, the non-exclusive and non-transferable right to market and promote the Products solely by means of placing the Link(s) on the Website(s) or on or through the Affiliate Marketing Account(s).
- The Affiliate shall fully comply with Max Value’s most recent guidelines regarding the Link(s). Max Value’s guidelines regarding the Link(s), as such guidelines may be changed by Max Value from time to time in its sole discretion, are incorporated into and form part of this Agreement and are available for review at http://www.pokertracker.com/content/pokertracker-affiliate-program-agreement
- The Affiliate may not assign its rights and/or obligations under this Agreement, in full or in part, to any third party without the prior written consent of Max Value.
- The Affiliate hereby acknowledges that nothing herein shall be deemed to grant it exclusivity in relation to providing services to Max Value, and the Affiliate shall not claim any type of exclusivity in its relationship with Max Value at any time.
- Max Value agrees to pay the Affiliate a commission (the “Commission”) in an amount equal to 30% of all Verified Sales, or such other percentage of Verified Sales as shall be agreed to in writing by Max Value and the Affiliate. All Verified Sales and Commissions are calculated and all payments of Commissions will be made in United States dollars.
- The Affiliate hereby agrees that Max Value’s reasonable determination of Commissions shall be final and not subject to review or appeal, except in the case of manifest error.
- Subject to Section 4.E below, payments pursuant to this Section 4 shall be made by Max Value to the Affiliate on a monthly basis, on or around the fifth (5th) day of each month, based on the Verified Sales from the previous calendar month.
- Max Value shall make payments of the Commissions via PayPal or Neteller; provided, however, that in the event that the Affiliate generates a large volume of Commissions, payment may be made by Max Value to the Affiliate via check or wire transfer upon written request by the Affiliate and agreement in writing by Max Value in its sole discretion.
- In the event that the Commission owed to the Affiliate in respect of any calendar month is less than Fifty and 00/100 dollars ($50) (the “Threshold Commission”), Max Value shall not be required to make such payment until such time as the Commission equals or exceeds the Threshold Commission. The Affiliate may elect to set a higher Threshold Commission by notifying Max Value of such change in writing but in event shall Max Value be deemed to be a fiduciary of Affiliate or otherwise liable to Affiliate for any amount in excess of the Commission due Affiliate. Max Value shall not be required to maintain any withheld Threshold Commission in a segregated or escrow account for the benefit of Affiliate and may commingle Affiliate’s Commission with Max Value’s general business funds.
- Max Value retains the right to review all Commissions for fraud and/or any other irregularities. In the event that Max Value reasonably determines that any fraud has occurred in relation to the generation of a Commission, Max Value shall be entitled to withhold such Commission or set off an appropriate amount from future payments of Commission and may immediately terminate this Agreement.
- Max Value retains the right to cancel any pending sales or exclude sales from Verified Sales in the event of chargebacks or refunds during the Review Period. In the event that a chargeback or refund occurs after a sale is included in Verified Sales and a Commission is paid to the Affiliate with respect thereto, Max Value shall be entitled to set off an appropriate amount from future payments of Commission. Notwithstanding the foregoing, Max Value shall retain all rights to institute any legal action at law or in equity it deems necessary or appropriate to recover any funds paid to Affiliate as a result of fraud or other error.
Representations, Warranties, and Agreements of the Affiliate
- The Affiliate represents and warrants to Max Value that it has the ability, experience, expertise, and resources to perform all of its obligations hereunder.
- The Affiliate agrees to place the Link(s) on its Website(s) or on or through its Affiliate Marketing Account(s) and to ensure that the Link(s) is properly formatted at all times.
- The Affiliate agrees to use its best efforts to market and promote the Products in a manner consistent with good business ethics and in good faith toward Max Value.
- The Affiliate represents and warrants that there is no legal, commercial, contractual, or other restriction that precludes or might preclude it from fully performing its obligations pursuant to this Agreement. The Affiliate covenants that if at any time during the term of this Agreement there is any event or circumstance which may prevent it from fulfilling its obligations hereunder, the Affiliate shall notify Max Value immediately, and Max Value shall be entitled to terminate this Agreement without notice and without the requirement to make any further payments excepting any Commission due and payable to Affiliate. If Max Value terminates this Agreement pursuant to this Section 5.D, it may withhold any Commission due the Affiliate until the end of the Review Period.
- The Affiliate represents and warrants that it has evaluated the laws relating to its activities and obligations hereunder, has consulted with legal and/or other experts of its choosing or has chosen to forego such consultation and it has independently concluded that it can enter into this Agreement and fulfill its obligations hereunder.
- The Affiliate agrees to comply with all reasonable instructions received from Max Value with respect to the Affiliate’s activities in marketing and promoting the Products, including, without limitation, any instruction received from Max Value requesting the Affiliate post on the Website(s) or on or through the Affiliate Marketing Account(s) information regarding new Products features and promotions.
- During the term of this Agreement and at all times thereafter in perpetuity, the parties hereto including but not limited to their executives, owners, members, and partners agree they will not libel, slander, disparage, impugn, denigrate, deprecate, or otherwise slight the other party, their products and/or services or their principals in any manner, including any of the foregoing actions in any electronic format, however transitory including but not limited to electronic forums, any social media platforms (e.g. Facebook), message boards and/or other avenues (e.g. Twitter “tweets”). Affiliate hereby agrees to indemnify Max Value for any loss, cost, expense and/or liability, including reasonable attorney’s fees, arising out of Affiliate’s failure to comply with the provisions of this Section. The foregoing covenants and indemnity shall specifically survive the termination of this Agreement.
- The Affiliate agrees not to modify any of the Link(s) without the prior written consent of Max Value.
- The Affiliate agrees that it is solely responsible for the development, operation and maintenance of the Website(s) and the Affiliate Marketing Account(s) and for all materials that appear on the Website(s) and the Affiliate Marketing Account(s) at any time. The Affiliate shall ensure that no material appears at any time on the Website(s) or on or through the Affiliate Marketing Account(s) that consists of the intellectual property of others which the Affiliate is not properly authorized or licensed to use, information that is scandalous, fraudulent, or offensive, or any other information that may result in a cause of action in law or in equity. The Affiliate indemnifies and agrees to defend and hold harmless Max Value, its members, shareholders, directors, officers, employees, and agents, from and against any damages, losses, costs, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance and content of the Website(s) and the Affiliate Marketing Account(s).
- The Affiliate hereby agrees not to link to or otherwise utilize its own affiliate account to purchase the Products for its own use without the prior written consent of Max Value.
- The Affiliate shall refrain from marketing the Products in any way that might compete with Max Value’s own marketing efforts unless the Affiliate has received prior written consent from Max Value in such regard. A breach by the Affiliate of the foregoing provision will constitute a breach of this Agreement, and Max Value retains full authority to terminate this Agreement immediately in the event of such breach and indefinitely withhold from the Affiliate any commission accrued to its benefit through such competitive activities.
- The Affiliate shall comply with all terms and conditions of third-party websites, email servers, and/or social media outlets through which it promotes the Products. A breach by the Affiliate of the foregoing provision will constitute a breach of this Agreement, and Max Value may terminate this Agreement immediately in the event of such breach and indefinitely withhold from the Affiliate any Commission accrued to its benefit through such activities.
Intellectual Property Rights
- For the sole purpose of the Affiliate performing its duties and obligations hereunder and for the term of this Agreement, Max Value grants to the Affiliate a non-exclusive, non-transferable, and revocable license to use the Trademarks solely in connection with the placing of the Link(s) on the Website(s) or on or through the Affiliate Marketing Account(s). The license granted herein may not be sub-licensed, assigned, or otherwise transferred by the Affiliate.
- The Affiliate agrees not to make use of the Trademarks and Trade Secrets of Max Value except as expressly set forth herein without the prior written consent of Max Value. In particular, the Affiliate is not permitted to register a domain name that includes, incorporates, or consists of the Trademarks or any domain name that is confusingly similar to the Trademarks.
- Upon execution of this Agreement and as a continuing obligation hereunder, the Affiliate shall inform Max Value of any domain names the Affiliate owns that breach Section 6.H hereof. If Max Value becomes aware that the Affiliate has registered a domain name in breach of Section 6.B hereof, Max Value will notify the Affiliate and require the Affiliate to transfer and assign the domain name to Max Value forthwith and free of charge to any company Max Value shall nominate. If the Affiliate does not agree to transfer any domain name identified pursuant to this Section 6.C, Affiliate agrees that it hereby designates and appoints Max Value as its attorney-in-fact to effect such transfer or assignment and Max Value may proceed in the name of Affiliate and take whatever steps (including the execution of any transfer or assignment documents) it deems necessary or desirable to accomplish the intent of this Section. THE AFFILIATE’S OBLIGATION TO TRANSFER DOMAIN NAMES REGISTERED IN BREACH OF SECTION 6.B HEREOF EXTENDS TO DOMAIN NAMES REGISTERED PRIOR TO THE DATE OF EXECUTION OF THIS AGREEMENT. Until the domain name has been transferred to the nominated company, the Affiliate shall not allow the domain name registration to lapse. Max Value may, in its sole discretion, withhold all Commission payments that may be owed to the Affiliate until the domain name is transferred.
- Nothing herein shall be considered or understood to be a transfer by Max Value to the Affiliate of any rights whatsoever in the Trademarks or Trade Secrets or any other intellectual property rights whatsoever, and, in particular, the Affiliate agrees not to submit a trademark application in any jurisdiction that is confusingly similar to the Trademarks.
- The Affiliate hereby acknowledges that all information relating to all of the Qualified Customers is the exclusive and sole property of Max Value and that the Affiliate shall have no rights therein whatsoever.
- Max Value reserves all of its intellectual property rights in the Trademarks and Trade Secrets and may revoke the license granted to the Affiliate at any time in its sole discretion by informing the Affiliate of such revocation in writing. The Affiliate shall not assert the invalidity, unenforceability, or contest the ownership of the Trademarks in any action or proceeding whatsoever and shall not take any action that may prejudice Max Value’s rights in the Trademarks.
Term and Termination
- This Agreement shall commence on the Effective Date and shall continue in full force and effect until it is terminated in accordance with the provisions set forth herein.
- The Affiliate may terminate this Agreement at any time, with or without cause, upon written notice to Max Value.
- Max Value may terminate this Agreement at any time, with or without cause, upon written notice to the Affiliate.
- In the event that the Affiliate suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they become due or admits its inability to pay its debts, is deemed unable to pay its debts within the meaning of United States bankruptcy and insolvency laws, or is deemed either unable to pay its debts or as having no reasonable prospect of so doing, or has any partner to whom any of the foregoing apply, Max Value may terminate this Agreement immediately.
- Termination of this Agreement shall not extinguish either of the parties’ obligations under this Agreement that by their terms or context are intended to survive the termination of the Agreement.
- Notwithstanding Section 7.D above and for the avoidance of doubt, it is hereby clarified that Max Value shall not be liable to pay any Commissions for Verified Sales where such Verified Sales are generated following the termination of this Agreement.
- Following the termination of this Agreement and the payment to the Affiliate of amounts owed to it pursuant to this Agreement as of the termination of this Agreement, Max Value shall have no obligation to make any further Commission payments to the Affiliate.
- Upon termination of this Agreement, the Affiliate shall immediately remove all Links from the Website(s) and cease to use all Link(s), Trademarks, and any other materials in any form provided by or on behalf of Max Value to the Affiliate pursuant to this Agreement, and all licenses and rights granted hereunder to the Affiliate shall immediately terminate. The foregoing shall not prevent the Affiliate from linking to Max Value’s homepage to the extent that it does so for its own personal, non-commercial use. Upon termination of this Agreement, the Affiliate shall promptly return to Max Value any confidential information in its control or possession.
Disclaimer and Limitation of Liability
- Max Value does not warrant that the Products will be error-free or uninterrupted and will not be liable for the consequences of any errors or interruptions. Further, Max Value makes no representation or warranty, express or implied, to the Affiliate as to any matter contemplated by this Agreement, the quality, merchantability, fitness for particular use, or suitability of the Products.
- Under no circumstances shall either party be liable to the other for indirect, incidental, consequential, special, or exemplary damages (including any loss of revenue or profits) arising from any provision of this Agreement or matters related to the provisions contained herein. The Affiliate agrees that Max Value’s aggregate maximum liability arising with respect to this Agreement shall not exceed the total Commissions paid or payable to the Affiliate pursuant to the terms of this Agreement. The term “indirect, incidental, consequential, special, or exemplary damages” as used in this Section 8.2 does not include any additional or increased direct costs of Max Value caused by acts of the Affiliate that constitute a breach of this Agreement.
- The Affiliate hereby represents and warrants that it has independently evaluated the desirability of acting as an affiliate of Max Value and, other than as set forth herein, is not relying on any representation, guarantee, or statement of Max Value.
The Affiliate indemnifies and agrees to defend and hold harmless Max Value, its members, shareholders, directors, officers, employees, and agents, from and against any damages, losses, costs, and expenses (including, without limitation, attorneys’ fees) resulting from, arising out of, or in any way connected with (a) any breach by the Affiliate of any representation, warranty, or agreement of the Affiliate contained in this Agreement; (b) the performance of the Affiliate’s duties and obligations under this Agreement; (c) the Affiliate’s negligence in performing its duties and obligations under this Agreement; or (d) any injury directly or indirectly caused by the Affiliate’s negligence or intentional acts or omissions or the unauthorized use of the Link(s).
All Confidential Information concerning Max Value shall be kept in strict confidence by the Affiliate, whether or not such information includes a mark affirming its confidentiality. All Confidential Information shall remain confidential after the expiration of the term of this Agreement. Max Value may require the Affiliate to execute a separate confidentiality agreement if, in its sole discretion, it determines that the information to be conveyed to the Affiliate warrants such additional covenants of confidentiality.
The Affiliate confirms that it has read this Agreement, has had the opportunity to consult with its own legal advisors if so desired, and agrees to all its terms and conditions. The Affiliate confirms that it has independently evaluated the desirability of participating in the Program and is not relying on any representations, guarantee, or statement from Max Value other than as set forth in this Agreement.
Max Value reserves the right to update or modify this Agreement or any part hereof at any time without notice, and the Affiliate will be bound by such amended Agreement within 14 days of it being posted at http://www.pokertracker.com/content/pokertracker-affiliate-program-agreement. Therefore, Max Value encourages the Affiliate to visit http://www.pokertracker.com/content/pokertracker-affiliate-program-agreement regularly and check the terms and conditions contained in the version of the Agreement in force at such time. The Affiliate’s continued participation in the Program shall be deemed to confirm the Affiliate’s acceptance of any amendments to the Agreement.
Any notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be given by certified prepaid mail, return receipt requested, or by recognized overnight carrier (e.g., FEDEX) which provides for confirmation of receipt, directed to the parties at the addresses first set forth above or at such other address as the parties may from time to time specify by written notice to the other party. If any such notice is directed to Max Value, a required copy shall be simultaneously sent to Max Value’s counsel at:
John M. Erdek, Esq.
603 Cheswold Court
Wayne, PA 19087
- This Agreement shall, upon execution, constitute the entire agreement between the parties with respect to the subject matter hereof and nullifies all previous understandings, both oral and written, between the parties in respect of the subject matter hereof and shall supersede all previous agreements between the parties, whether made orally or in writing.
- It is hereby agreed that neither this Agreement, nor any term or condition contained herein, shall be construed as creating a partnership, joint venture, fiduciary or agency relationship or as granting a franchise between the parties hereto and each of the parties hereto shall in all matters connected herewith be independent contractors.
- If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
- No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
- This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. The Affiliate irrevocably agrees that the courts of the Commonwealth of Pennsylvania, County of Chester, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Pennsylvania, shall have exclusive jurisdiction to hear any claim, dispute, or matter arising out of or in connection with this Agreement, and the Affiliate waives any objection to proceedings in such courts on the grounds that such courts are an inconvenient forum. Notwithstanding the preceding sentence, nothing in this Section 13.F shall prevent Max Value from initiating legal action against the Affiliate in any other court of competent jurisdiction.
- For the avoidance of doubt, it is hereby clarified that under no circumstances shall the Affiliate have the authority to bind, obligate, or commit Max Value in any way whatsoever or to assume debts or obligations on its behalf, nor shall the Affiliate represent itself as having such authority at any time.
- The English language version of this Agreement shall be the prevailing version in the event of any discrepancy between any translated versions of this Agreement.
- Any notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be given by certified prepaid mail, return receipt requested, or by recognized overnight carrier (e.g., FEDEX) which provides for confirmation of receipt, directed to the parties at the addresses first set forth above or at such other address as the parties may from time to time specify by written notice to the other party. If any such notice is directed to Max Value, a required copy shall be simultaneously sent to Max Value’s counsel at:
IF YOU DO NOT UNDERSTAND ANY PORTION OF THIS AGREEMENT, YOU SHOULD HAVE IT REVIEWED BY LEGAL COUNSEL OF YOUR CHOICE.
THIS IS A LEGALLY BINDING AGREEMENT. IF YOU INDICATED YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT BY CHECKING THE “I AGREE” BOX UPON REGISTERING FOR AN AFFILIATE ACCOUNT, YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.