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GUARDIAN AFFILIATE TERMS AND CONDITIONS

The Parties agree as follows:

  1. Term. Unless earlier terminated in accordance with the terms hereof, this Agreement will have a 12-month initial term starting on the Effective Date and will automatically renew for successive additional 12-month renewal terms, unless either Party provides the other Party with at least 30 days written notice of non-renewal prior to the end of the initial term or the then-current renewal term, as the case may be. The initial term and each renewal term (if any) are individually and collectively referred to as the “Term.”
  2. Compensation for Referrals.
    • Compensation. During each month of the Term, Guardian shall pay Affiliate an amount (the “Compensation”) equal to the Recurring Gross Revenue for the previous month multiplied by the applicable Revenue Share Percentage. Payments will be made in accordance with Section 2.4.
    • Definitions.
      1. “Approved Account” means a Referred customer that is approved for a Guardian merchant account and becomes a paying Guardian payment processing customer. If a potential customer is Referred by Affiliate but does not become an Approved Account, no Compensation will be payable for such customer.
      2. “Landing Page” means the landing page on the Guardian website to which a Guardian hyperlink contained on Affiliate’s website or in an Affiliate email is directed.
      3. Subject to Section 2.6, “Referred” means:
        1. The customer completes a form on the Landing Page after clicking a hyperlink on Affiliate’s website or contained in an email sent by or on behalf of Affiliate to such customer, unless Affiliate violated Section 3.3 or 4 in connection therewith;
        2. Affiliate provides Guardian with the customer’s contact details and Guardian thereafter contacts the customer, provided that the customer authorized Affiliate to provide his/her/its contact details to Guardian for such purpose; or
  • A customer contacts Guardian directly via email or phone and says that they heard about Guardian from Affiliate, whether from an Affiliate employee or representative, from the Affiliate website, from Affiliate training content, from an Affiliate email, or from any other form of Affiliate communication.
  1. “Recurring Gross Revenue” means the recurring gross revenue collected by Guardian from credit card processing charges for all Approved Accounts. For the avoidance of doubt, Recurring Gross Revenue does not include any revenue from one-time charges.
  • Revenue Share Percentage. The “Revenue Share Percentage” is determined as follows:
  1. If Guardian is the sole and exclusive payment processing service to whom Affiliate refers prospective inspection service provider customers, then:
    1. If the Recurring Gross Revenue for the applicable month was less than $5,000,000, the Revenue Share Percentage will be 25%.

 

  1. If the Recurring Gross Revenue for the applicable month was at least $5,000,000 but less than $20,000,000, the Revenue Share Percentage will be 40%.
  • If the Recurring Gross Revenue for the applicable month was more than $20,000,000, the Revenue Share Percentage will be 55%.
  1. If Guardian is not the sole and exclusive payment processing service to whom Affiliate refers inspection service provider customers, the Revenue Share Percentage will be 25%.
    • Payment.
      1. Subject to subsection (b) of this Section 2.4, Guardian shall pay Affiliate monthly via an ACH transaction to an account specified by Affiliate. Each month’s Compensation will be paid no later than 45 days after the end of the month in which the Compensation accrued.
      2. If the Compensation earned by Affiliate is less than $100 per month for two consecutive months during a calendar year, then instead of making monthly payments, Guardian shall pay Affiliate the Compensation earned for the remainder of the calendar year with a single payment. Guardian shall make such payment no later than 45 days following the end of such calendar year. If the Compensation earned by Affiliate during such remainder of the year averaged at least $100 per month, then in the following calendar year Guardian shall return to making monthly payments; if not, then Guardian shall again make a single annual Compensation payment following the end of the year. The determination of payment timing set forth in this subsection (b) shall be followed each time the Compensation earned by Affiliate is less than $100 per month for two consecutive months during any calendar year.
    • W-9 Tax Form. Affiliate shall submit a W-9 tax form to Guardian at the end of each calendar year if Affiliate is a U.S. company and has received Compensation of $500.00 or more from Guardian for that calendar year. If Affiliate does not timely provide a current W-9 tax form, Guardian will cease paying Compensation until the W-9 tax form is received by Guardian.
    • Limitations on Referrals; Disclaimer.
  2. Affiliate will not be entitled to receive any Compensation with respect to any entity or person referred by Affiliate that, directly or indirectly, in whole or in part, owns or controls, or is owned, controlled by, or under common control with, Affiliate (a “Self-Referral”). Guardian will determine in its sole discretion whether a referral is a Self-Referral under this Section.
  3. If a potential customer is referred to Guardian by more than one participant in Guardian’s affiliate program, compensation for that referral will be payable only to the affiliate who made the last referral before the customer became an Approved Account.
  4. Guardian is not responsible for referrals that are lost through no fault of Guardian, including, without limitation, if Affiliate provides Guardian with erroneous customer information or provides a customer with incorrect referral information.
  5. Affiliate Website; Guardian Materials.
    • Graphics and Hyperlinks. During the Term, Affiliate shall maintain on each of Affiliate’s websites the advertising graphic and hyperlink provided by Guardian. Affiliate shall periodically ensure that such hyperlink is functioning properly to send customers to the Landing Page.
    • Website Suitability. Guardian reserves the right to remove Affiliate from Guardian’s affiliate program and terminate this Agreement at any time if Guardian determines, in its sole discretion, that Affiliate’s website is unsuitable for Guardian’s affiliate program. Unsuitable sites include but are not limited to those that contain nudity or pornographic material, promote violence, harassment or discrimination, promote the use of bulk e-mail or spam, promote illegal activities, or violate intellectual property rights.
    • No Modifications of Guardian Materials. Affiliate shall not alter or modify Guardian’s advertising graphic, hyperlink, name, logo, trade names, slogans, other brand elements, or marketing content provided to Affiliate by Guardian (collectively, “Guardian Materials”) in any way without Guardian’s prior written authorization.

 

  1. Advertising and Communications. All advertising and communications of Affiliate using Guardian Materials must be approved in writing by Guardian before use. In any event, Affiliate is prohibited from using Guardian Materials to make unsolicited communications to consumers in violation of applicable law or in any other advertising that could be designated as “spam.”
  2. Limited License; Intellectual Property Rights.
    • Grant of Limited License. Guardian hereby grants Affiliate a limited, non-exclusive, non-transferable and royalty-free license, during the Term, to use the Guardian Materials provided to Affiliate solely as contemplated under this Agreement. This limited license shall automatically and immediately cease upon termination of this Agreement.
    • Retention of Rights. This Agreement does not transfer any of Guardian’s intellectual property rights to Affiliate. Title and full ownership rights in and to Guardian’s intellectual property will at all times remain with Guardian.
    • No Reverse Engineering. Affiliate shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive Guardian’s source code or other trade secrets.
    • Confidential Information. Either Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Confidential Information means information, data and know-how that is marked or otherwise identified as confidential or that, given the nature of the information or the circumstances surrounding the disclosure, would reasonably be considered to be confidential (including but not limited to financial information, product plans, inventions, computer software or code, algorithms, trade secrets, patents, client lists, third-party confidential information and the terms of this Agreement), whether oral or in written, electronic or other form or media. Confidential Information does not  include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of any breach of this Section by the Receiving Party, its affiliates or its or their employees, consultants, officers, directors, partners, equity holders, advisors, agents or representatives (collectively “Representatives”); (ii) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.
    • Protection of Confidential Information. The Receiving Party shall: (A) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information of similar kind, but in no event less than reasonable care; (B) not use the Disclosing Party’s Confidential Information for any purpose other than to perform the Receiving Party’s obligations or exercise its rights under this Agreement; (C) promptly report to the Disclosing Party any unauthorized disclosure of, or access to, the Disclosing Party’s Confidential Information; and (D) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information for the purpose of performing Receiving Party’s obligations or exercising its rights under the Agreement and who are subject to obligations of nondisclosure and restricted use at least as protective as those of this Section. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives.
    • Legally Required Disclosure. In the event that Receiving Party is required by applicable law, regulation or legal process to disclose any Confidential Information of the Disclosing Party, Recipient shall notify the Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy or, in its sole discretion, waive compliance with the terms of this Section. Recipient will furnish only that portion of the Confidential Information which Recipient is advised by counsel is legally required to be disclosed.
    • Return of Confidential Information. At the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its Representatives to return, to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party may retain the Confidential Information for legal and accounting purposes and is not required to delete Confidential Information held electronically in archive or back-up systems in accordance with its systems archiving or backup policies.
    • Remedies. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section, without posting bond or other security.
  4. Independent Contractor. This Agreement does not create a partnership or joint venture of any kind. Guardian and Affiliate shall be independent contractors of each other for all purposes, and neither Party’s employees will be considered an agent or employee of the other Party for any purpose. Neither Party will have authority to enter into any contract, agreement or other commitment, or incur any obligation or liability, in the name or otherwise on behalf of the other Party. Affiliate has sole responsibility for payment and reporting of federal, state and local taxes or other assessments imposed by law with respect to Compensation paid to Affiliate under this Agreement.
  5. Termination.
    • Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party (a) is in material breach of this Agreement and such material breach has not been cured within 15 days after receiving written notice from the non-breaching Party of such material breach; or (b) becomes insolvent or ceases to do business. In addition, Guardian may terminate this Agreement immediately upon written notice as provided in Section 3.2.
    • Effect of Termination. Upon termination of this Agreement, Affiliate shall immediately cease using all Guardian Materials (as defined in Section 3.3). Sections 5.2, 5.3, 6, 7, 8.2, 9, and 10 of this Agreement will survive termination.
  6. Indemnification.
    • By Affiliate. Affiliate shall indemnify, defend, and hold harmless Guardian, its Representatives and its and their successors and assigns against any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), that are incurred by or awarded against them in connection with any claim, action or proceeding brought by a third party and relating to, arising from or alleging: (i) the manner and means by which Affiliate obtains or provides referrals, (ii) Affiliate’s products or services; (iii) Affiliate’s websites; (iv) the collection, use, or distribution of consumer information by Affiliate or its Representatives, including any unauthorized provision of customer information to Guardian; or (v) violation of applicable law or any third party’s rights, including intellectual property, privacy or proprietary rights, by Affiliate or its Representatives.
    • By Guardian. Guardian shall indemnify, defend, and hold harmless Affiliate, its Representatives and its and their successors and assigns against any and all Losses that are incurred by or awarded against them in connection with any claim, action or proceeding brought by a third party and relating to, arising from or alleging: (i) Guardian’s payment processing products or services; (ii) Guardian’s websites; or (iii) violation of applicable law or any third party’s rights, including intellectual property, privacy or proprietary rights, by Guardian or its Representatives, except to the extent such violation was caused by Affiliate’s breach of this Agreement or violation of applicable law.
  7. Limitation on Liability.
    • Limitation on Liability. EXCEPT AS PROVIDED IN SECTION 10.2, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED; AND (B) EXCEPT AS PROVIDED IN SECTION 10.2, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF COMPENSATION PAID OR PAYABLE BY GUARDIAN TO AFFILIATE IN THE 12 MONTHS PRECEDING THE CLAIM.
    • Exceptions. THE LIMITATIONS SET FORTH IN SECTION 10.1 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM SECTIONS 6 OR 9 HEREOF.
  8. Miscellaneous.
    • Governing Law and Venue. This Agreement will be governed by the laws of the State of Idaho without giving effect to any conflict of law principles of any jurisdiction. The Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Boise, Idaho in any dispute arising out of or in connection with this Agreement.
    • Class Action Waiver. ANY ARBITRATION OR COURT ACTION HEREUNDER SHALL PROCEED SOLELY ON AN INDIVIDUAL BASIS WITHOUT THE RIGHT FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS OR COLLECTIVE ACTION BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS OR ANY GOVERNMENTAL BODY OR THE PUBLIC.
    • Jury Trial Waiver. EACH OF THE PARTIES HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT.
    • Amendments; Waivers. No amendment of any provision of this Agreement will be valid unless the amendment is in writing and signed by both Parties. Waivers are valid only if in writing and signed by the Party so waiving. The failure of a Party at any time to require performance of any provision of this Agreement will not affect such Party’s rights at a later time to enforce such provision. No waiver by any Party of any breach of this Agreement will be deemed to extend to any other breach hereunder or affect in any way any rights arising by virtue of any other breach.
    • Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, the validity or enforceability of any other provision hereof will not be affected. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
    • Counterparts; Execution. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same Agreement. This Agreement may be electronically signed and delivered, and the Parties agree that any electronic signatures are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
    • Authority; No Conflict. Each Party represents and warrants that it has the requisite corporate authority to execute and perform this Agreement and that such execution and performance does not and will not violate any other agreement to which such party is subject. Each person executing this Agreement on behalf of a Party represents and warrants that he or she is authorized to execute this Agreement on behalf of such Party.
    • Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each Party and its successors and assigns. This Agreement may not be assigned without the prior written authorization from the other Party.
    • Notice. Each Party shall deliver all notices in writing and addressed to the other Party to the address set forth in the signature block for such Party (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (with confirmation of transmission). A notice is effective only if the Party giving the notice has complied with the requirements of this Section, and notice will be deemed received (a) upon receipt by the receiving party if personally delivered; (b) two business days after deposit with an overnight courier, (c) four business days after deposit as certified or registered mail; and (d) if emailed, upon receipt of confirmation of email transmission.
    • Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the drafting party.
    • Independent Investigation. Affiliate acknowledges that Guardian may at any time, directly or indirectly, solicit customer referrals from other parties on terms that may differ from those contained in this Agreement. Affiliate has independently evaluated the desirability of participating in Guardian’s affiliate program on the terms set forth in this Agreement and is not relying on any representation or statement other than as set forth in this Agreement.
    • Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements with respect to its subject matter.