Affiliate Program Agreement

Last Modified: April 1, 2018

This is a contract between you (the "Affiliate") and us ("PATLive"). This Agreement defines how we will work together and applies exclusively to your participation in our Affiliate Program (the "Affiliate Program"). If you are also a customer of PATLive, our relationship is also governed by our Terms of Use and Privacy Policy, available at www.patlive.com. The terms in this Agreement are so important that we cannot have you participate in our Affiliate Program unless you agree to them.

These terms may be updated periodically at our discretion. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes or ends. If we update or replace the terms we will let you know via electronic means, which may include an in-app notification or by email. If you don't agree to the update or replacement, you can choose to terminate as we describe below.

Thank you for your interest in our Affiliate Program. Should you have any questions, please contact [email protected]

  1. Non-Exclusivity

    This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

  2. Affiliate Acceptance

    Once you complete a request to become an Affiliate, we will review your request and notify you whether you have been accepted to participate in the Affiliate Program. We may require additional information or require you to complete a formal application at our discretion. We reserve the right to accept or deny applications for any reason and are not obligated to disclose the basis for any such acceptance or rejection to you or any other third party. If we do not notify you that you are accepted to participate in the Affiliate Program within fourteen (14) days of your request to become an Affiliate, your request is considered to be rejected.

    Upon your request to participate in the Affiliate Program, the terms and conditions of this Agreement shall apply in full force and effect until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrollment criteria as requested by us, within thirty (30) days of your acceptance. At a minimum, you will be required to provide a completed W-9 form for our records. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.

    You will comply with the terms and conditions of this Agreement at all times.

  3. Affiliate Responsibilities

    PATLive seeks to maintain a robust group of affiliates who are actively engaged in promoting the Services. In consideration for the commissions paid to you pursuant to the terms of this Agreement, you agree to use your best efforts to diligently market the Services to potential accounts on a continual basis. To maintain a status as an Active Affiliate, you will need to refer a minimum of six (6) new Eligible Account activations per twelve months. In the event that you are not meeting this criteria, we will notify you that your affiliate account has been set to inactive status. An Inactive Affiliate ("Inactive Affiliate") remains eligible for commission payments, subject to all terms and conditions herein, but will no longer receive referral credit for new signups. Any website links or promotions provided to you will be turned off if you move to an inactive status.

  4. Commissions

    1. Commissionable Revenue

      "Commissionable revenue" will be determined on a monthly basis and is defined as the total amount of recurring Monthly Service Fees for Services collected each month from Eligible Accounts. You shall be entitled to fifteen (15) percent of the Commissionable Revenue. In no event, however, shall Commissionable Revenue include: (i) taxes; (ii) regulatory surcharges, fees and assessments; (iii) credits; (iv) additional minute fees; (v) add-on fees (such as Bilingual Service Charges, vanity phone numbers, etc.); and (vi) unbillable or uncollectible charges.

    2. Eligible Accounts

      To qualify as an Eligible Account, a customer must (i) signup for Services through your custom sign-up website, provided by PATLive, or (ii) if the customer signs up for services via the telephone, notify us that you referred them during the signup process. In addition, for customers who signed up for services on or after April 1, 2018, the customer must be within the first twenty-four months of Services with PATLive. Customers who signed up prior to April 1, 2018 will remain an Eligible Account until they terminate services with PATLive.

      If a customer signs up for Services without notifying PATLive of the referral (e.g., if the customer signs up directly at www.patlive.com), the customer and/or you have up to thirty (30) days to correct the error to qualify as an Eligible Account for commission purposes.

      If you choose to become a customer of PATLive, your account does not qualify as an Eligible Account.

      We retain the right to determine whether an account is an Eligible Account in the event of a dispute.

    3. Rates and Discounts

      PATLive shall set the rates for services. Rates are subject to change at any time without prior consent from you. We will provide you with no less than thirty (30) days notice of any changes in rates in accordance with the notice provisions contained in this Agreement. PATLive will offer any of your referring accounts a discount of five (5) percent off of our Retail Monthly Service Rate, and may round these fees to the nearest dollar. We reserve the right to modify the discounted amount at any time, and will provide notice to you at least thirty (30) days in advance of such change. Retail Monthly Service Rates ("Retail Monthly Service Rates") are defined as the rates available to the general public (not associated with an affiliate) and can be found online at www.patlive.com.

    4. Limitations

      PATLive will only be liable for payment of commissions on full payment from Eligible Accounts. PATLive reserves the right to withhold commissions or charge back commissions on revenue from customers deemed uncollectible by PATLive. You will receive notice in the event of such a withholding or charge back. If you are also a customer of PATLive, commissions can also be withheld if your account is in a past-due status. Commissions may be used to offset any balance owed to PATLive until all such outstanding balances are cleared.

    5. Payment

      On or around the 15th of each month, PATLive will provide you with monthly remittance reports containing itemized information with respect to your accounts, including the revenue attributable to such accounts and a calculation of the commission payment due hereunder for the reported month (the previous month's billing). You shall have a period of sixty (60) days after receipt of monthly reports and payments to challenge or dispute the accuracy of the accounting. If you do not challenge or dispute the accounting within such time period, the payment will be considered final and accepted without recourse or later dispute.

      Commissions will be paid on a monthly basis when they reach a minimum of $25.00.

  5. Term and Termination

    1. Term

      This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.

    2. Termination

      Without Cause. Either party may terminate this Agreement without cause at any time by written notice to the other.

      Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.

      With Cause. We may terminate this Agreement for cause: (i) upon thirty (30) days' notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your Services with us (if you have Services with us), including if you default on your payment obligations, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

    3. Effects of Termination

      If this Agreement is terminated for any reason, you will immediately be deemed an Inactive Affiliate and we will no longer permit any new customers from signing up through your affiliate account. Termination of this Agreement (i) without cause by us, or (ii) by you in response to changes to this Agreement, as outlined herein, shall not affect our obligation to pay you commissions if due. If this Agreement is terminated (i) without cause by you, or (ii) with cause by us, our obligation to pay you and your right to receive any commissions will terminate upon the date f such termination, regardless of whether you would have otherwise been eligible to receive commissions prior to the date of termination. Except as expressly set forth herein, you are not eligible to receive a commission payment after the expiration or termination of this Agreement.

      Upon expiration or termination of this Agreement, you will discontinue use of any signup links, promotional codes, marketing materials or other information we have made available to you in consideration for your participation in the Affiliate Program.

      Upon expiration or termination of this Agreement, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, the termination or expiration of this Agreement shall not cause a customer's subscription to be terminated.

  6. Confidentiality

    As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), (i) whether orally or in writing, that is designated as confidential, and (ii) PATLive customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

  7. Relationship of Parties

    You acknowledge and agree that the relationship arising from this Agreement does not constitute a general agency, joint venture, partnership, employee relationship or franchise between us and that you are an independent contractor with respect to the services you perform pursuant to this Agreement. All expenses incurred by you in connection with your efforts to market the Services offered hereunder will be entirely your responsibility. PATLive will not in any way be responsible or liable for such expenses. You will be responsible for payment of all taxes or other fees due as a result of PATLive's payment of commissions to you.

  8. Sales by PATLive

    This Agreement shall in no way limit our right to sell our Services, directly or indirectly, to any current or prospective customers, including prospective customers via the internet.

  9. Trademarks

    You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos ("Affiliate Marks") in connection with the Affiliate Program and this Agreement.

    During the term of this Agreement, in the event that we make our trademark available to you, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

  10. Limitation of Liability

    In the event of any defect, failure, modification or discontinuation of the Services or the provision thereof, neither PATLive nor its Providers shall be liable to your or any end user for any actual, direct, indirect, special, incidental, consequential, punitive or any other damages, or for any lost revenue, profits or commissions of any kind, whether or not foreseeable, which are claimed to have arisen therefrom. In no event shall either party be liable to the other party for any special, indirect, consequential or punitive damages, whether or not foreseeable, which are claimed to have arisen from any act or omission of either party in connection with its performance under this Agreement.

  11. Indemnification

    You agree to indemnify, defend and hold harmless PATLive, its Providers and their respective officers, directors, employees and affiliates, from and against any loss, claim, action, suit, proceeding, judgment, damage, liability, cost, and expense (including without limitation court costs, legal expenses, reasonable attorney's fees and allocable cost of in-house counsel) which arise from or are claimed to have arisen from, directly or indirectly, breach of this Agreement or any act or omission of you, your employees, officers, affiliates, representatives, third parties authorized by you, subagents or contractors in performing activities related to this Agreement, and you shall receive and respond to all inquiries related thereto.

  12. Assignment

    PATLive reserves the right to assign this Agreement to others without your consent. You may not assign this Agreement to any other without the express written consent of PATLive, which will not be unreasonably withheld.

  13. Notices

    Notices to be given pursuant to this Agreement must be in writing, although electronic means (including email and in-app notifications) are acceptable. If to PATLive, notice shall be provided to:

    PATLive
    ATT: Legal
    2639 North Monroe Street, Suite 200B
    Tallahassee, Fl 32303
    [email protected]
    800-775-7790

    Notices to you shall be given to the address and/or email address you provided during your application or via an update at a later time. You are responsible for notifying PATLive of any changes to your contact information and PATLive shall not be liable for notices delivered to an invalid/old location.

  14. Non-Waiver

    No failure by either party to take action on account of any default by the other will constitute a waiver of any such default or of the performance required of the other.

  15. Arbitration

    Any dispute arising out of or related to this Agreement which cannot be resolved by the parties shall be exclusively submitted for binding arbitration in Tallahassee, Florida in accordance with the Commercial Arbitration Rules of the American Arbitration Association, unless the parties mutually agree otherwise. Notwithstanding the foregoing, should PATLive's Provider(s) also become a party to the dispute, then you agree that PATLive may allow PATLive's Provider(s) to dictate the location and arbitrator of the dispute and you agree to submit to the jurisdiction of the forum chosen by PATLive's Provider(s).

  16. Legal Fees and Expenses

    If any legal action is brought by either party against the other in connection with a dispute arising under this Agreement, the party in whose favor final judgment is entered shall be entitled to recover from the other party all reasonable attorney's fees and costs of suit incurred in connection with the action in addition to any other relief that may be allowed pursuant to this Agreement or by law.

  17. Controlling Law; Entire Agreement

    This Agreement will be governed by and construed in accordance with the domestic laws of the state of Florida. This Agreement is the entire Agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in a purchase order, acceptance, website or correspondence.

  18. Severability

    If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.