Affiliate Agreement

Last Updated 8/22/2019

As a WhirLocal Affiliate, you can earn money in two ways;

1) Direct referral commissions of 20% (recurring) when someone signs up for a WhirLocal membership through your Unique Affiliate URL and buys or upgrades to a paid membership account.

2) Bonus referral commissions of 10% (recurring) when someone signs up for a WhirLocal membership through the Unique Affiliate URL of one of your direct referrals and buys or upgrades to a paid membership account.

This Agreement sets forth Your rights and obligations as a WhirLocal Affiliate. By signing up as a WhirLocal member and clicking “I agree” to the Terms of Service, You indicate that You have read and understood this Agreement and You will be bound by its terms.

Parties

All references to “Company” or “WhirLocal” herein mean and refer to Third River Marketing LLC, dba WhirLocal, and Third River Marketing’s owner(s), parent company, affiliated entities, and employees, and assigns. All references to “You”, “Your”, and “Affiliate” refer to that WhirLocal Affiliate Member who has executed this Agreement by clicking “I Agree to the Terms of Service.” when signing up for an account. WhirLocal and You are each referred to herein as a “Party,” and collectively as the “Parties.

1. Independent Contractor

At all times, an Affiliate is an independent contractor of WhirLocal and shall not be considered and shall not hold himself/herself out to be, an employee of WhirLocal. WhirLocal shall not have and shall not exercise any control over the manner and means used by Affiliate, as an independent contractor, to perform services under this Agreement other than as defined in this agreement.

2. Term & Termination

Your Affiliate Agreement with WhirLocal begins when You sign up and click “I Agree” to the Terms of Service, and will continue month-to-month until either:

2.1. WhirLocal cancels Your account due to Your breach of terms or Your Prohibited Activity as defined in this Agreement. In the event this Agreement is canceled due to either of the above, You forfeit all Commissions and Bonuses owed to You or that may be owed to You in the future, OR 

2.2. WhirLocal or its successors or assigns, in its sole and absolute discretion, cancels Your Affiliate Agreement. Prior to canceling your Affiliate Agreement, You will first receive thirty (30) days’ written notice, sent to the e-mail address you provided WhirLocal and that is associated with your Affiliate profile. OR

2.3. You choose to opt-out of the Affiliate Agreement. You can do so at any time by sending a support email from your account. Select “Affiliate Program” from the drop-down menu and explain that you need to opt-out. We will remove Your Affiliate Account from the system.

3. Referral Tracking: 

When you sign up and click “I Agree” to the terms of this Agreement, You will receive a Unique Affiliate URL. This is what You will use to refer others to WhirLocal, and what WhirLocal uses to track referral commissions. When someone (a referral “Prospect”) clicks on Your Unique Affiliate URL, an affiliate cookie (or similar tracking technology (hereinafter “Affiliate Cookie”)) will be set in the Prospect’s browser. 

When a Prospect signs up for a WhirLocal account, we check the Affiliate Cookie on the Prospects browser for a Unique Affiliate URL. If the Unique Affiliate URL exists and corresponds with one of our Affiliates, we register that referral to the Affiliate. 

In the event that a Prospect has multiple Affiliate Cookies, the most recently acquired Affiliate Cookie will determine which Affiliate is credited for the referral.

4. Compensation:

4.1. No commissions on free members: Since no money is being paid for a free membership, there are no commissions paid.

4.2. Direct Referral Commissions: If a member You referred buys and/or upgrades to a paid membership package, You will be paid a referral commission as long as the account is active and in good standing. The referral commission amount is 20% of the amount received by WhirLocal for a paid membership account.

4.3. Bonus Referral Commissions: When one of Your direct referral members refers a new member through their Unique Affiliate URL (described above) and that referral upgrades to a paid membership package, You will be paid a bonus referral commission as long as the account is active and in good standing. The bonus referral commission is equal to 10% of the amount received by WhirLocal for a paid membership account.

4.4. Commission Payments: Providing that the paid accounts remain active and in good standing, and You have met the Minimum Commission levels in 4.5 below, commission payments will be made to You on the 5th and the 20th as follows subject to the other terms set forth herein:

5th – Commissions earned on paid membership accounts made and cleared between the 16th and the end of the previous month

20th – Commissions earned on paid membership accounts made and cleared between the 1st and the 15th of the current month

We use PayPal for all Affiliate commission payments. By default, Your PayPal email is the same as Your user account email. However, You may change this at any time to a different email for PayPal purposes by changing this in Affiliate Settings. PayPal may charge You a processing fee.

4.5 Minimum Commission Payment: Your commissions must be at least $50 (USD) before You will receive a commission payment. Upon written request, payments for a balance below $50 will be provided.

4.6. Taxes: You are responsible for any and all tax liabilities, including without limitation income tax liabilities that arise from or in any way relate to any referral commissions or bonuses You receive from WhirLocal. Where WhirLocal is required to withhold tax, WhirLocal will document such withholding. For example, if You are not a resident of the United States, WhirLocal may withhold tax (including without limitation VAT) where required to by applicable law.

4.7: Refunds and Chargebacks: If payment for a WhirLocal membership account later results in a refund or charge-back, and if a referral commission or bonus commission was already paid to you for that membership account, then the commission or bonus amount refunded or charged-back will be deducted from future commission payments.

4.8. Fraudulent Sales: If WhirLocal determines that a paid membership was procured fraudulently or as a violation of this Agreement, no referral commission or bonus will be paid on that membership.

4.9. Commissions on Your Own Accounts: You will not be paid a referral commission on Your own account.

5. Ownership of Accounts

All advertising clients, accounts and contracts of the Company and all rights in those contracts, including any such clients, accounts or contracts generated by Affiliate under this Agreement, are and shall remain the sole and exclusive property of the Company

6. Marketing & Advertising

6.1. Unique Affiliate URL: When You sign up, You are automatically assigned a Unique Affiliate URL. You must use this Unique Affiliate URL in order to properly track referrals. You can find your Unique Affiliate URL in the Affiliate Area.

6.2. True & Accurate: When promoting, marketing, or advertising any WhirLocal service or opportunity, any statements You make must be true and accurate. Any claims that are untrue or fraudulent are strictly prohibited.

6.3. Use of Intellectual Property of Others: You may not use the intellectual property of any other person or entity to claim endorsement of WhirLocal, either explicit or implied.

6.4. Disclaimer: If You advertise any WhirLocal opportunity on any website or social media, You must clearly provide the following disclaimer: 

Website: This site contains affiliate links. We may receive a commission for purchases made through these links.

Social Media or Email: use [Affiliate Link] on posts

6.6. Non-Disparagement: When marketing WhirLocal, You are not permitted to disparage the products and services of any other person or entity, including without limitation the products and services of any WhirLocal competitors.

6.7. Income Claims: If You make ANY income claims related to the WhirLocal Affiliate Program, You must adhere to the following guidelines. 1) Your statements must be supported by evidence, and must be completely true and accurate,  2) any use of  hypothetical scenarios, must be labeled it as such, and 3) You must use WhirLocal’s Income Disclosure Statement.

7. Intellectual Property

All logos, taglines, trademarks, trade names, copyrighted materials patents, and confidential information (“Intellectual Property”) are owned exclusively by the Company and Affiliate is authorized to use the same only while performing services under this Agreement and for no other purpose.

No WhirLocal Intellectual Property (or any mark confusingly similar to any WhirLocal Intellectual Property) is to be advertised for sale or registered as a domain name by You in any fashion.

You may use the WhirLocal mark to advertise WhirLocal, but only if You do not use it in a manner that may be confusing and cause the reader to think that You are speaking for WhirLocal, and only if You use the “TM” in superscript after the name. Example: WhirLocal ™

8. Event Photo Release:

You grant WhirLocal permission, along with a royalty-free, worldwide, perpetual license, to use any and all photographs taken of you by WhirLocal agents or employees at WhirLocal events, or submitted by you to WhirLocal (“Photographs”) in any media, for any purpose, which may include but is not limited to; advertising, promotion, and marketing of the WhirLocal service.

9. Prohibited Activity:

WhirLocal at its sole discretion has the right to terminate this Agreement at any time if you engage or have engaged in any of the following:

9.1. Offensive Communications: Any communication sent, published, posted, or authorized by You, including without limitation postings on any website or social media site which are considered; sexually explicit, obscene, pornographic, hateful, harmful, threatening, offensive, profane, defamatory, disparaging, derogatory, harassing, or discriminatory;  encouraging unlawful behavior; graphically violent; or that violates the intellectual property rights of another.

9.2. Harmful Acts. Any unethical or dishonest business practice; any unlawful conduct; infliction of harm to WhirLocal’s reputation; and/or the violation of the rights of WhirLocal or any third party.

9.3. Spamming and Unsolicited Communications: Any communications sent or authorized by You that are reasonably deemed as “Spam”, or any other unsolicited unauthorized activity, will be deemed an intent to do harm to WhirLocal’s reputation and to the rights of third parties. It is your exclusive responsibility to ensure that all business communications comply with state and local anti-spam or related laws.

10. Indemnity

Affiliate agrees to guard against harm, defend, indemnify, and hold WhirLocal and Company, its officers, directors, owners, employees, and assigns  harmless from any claims, damages or demands, including, but not limited to, any attorney fees or any third party claims arising out of acts or omissions of Affiliate in connection with work performed pursuant to this Agreement or any breach of this Agreement.

11. No Warranty or Guarantees

WhirLocal does not promise, guarantee, or warrant Your business success, income or sales.

YOU FURTHER UNDERSTAND THAT THE WHIRLOCAL SERVICES AND WEBSITES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WHIRLOCAL MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, ACCURACY, COMPLETENESS OR TIMELINESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH ANY WHIRLOCAL WEBSITE OR SERVICE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. WHIRLOCAL MAKES NO REPRESENTATION OR WARRANTY (A) THAT ANY WHIRLOCAL WEBSITE OR SERVICE WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO ANY WHIRLOCAL WEBSITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR (C) THAT ANY WHIRLOCAL WEBSITE OR THE SERVERS OR NETWORKS THROUGH WHICH ANY WHIRLOCAL WEBSITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY: YOU AGREE THAT IN NO EVENT SHALL WHIRLOCAL HAVE LIABILITY TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION FOR AN AMOUNT IN EXCESS OF THE AMOUNT OF THE REFERRAL COMMISSIONS PAID TO YOU FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST WHIRLOCAL OCCURRED. YOU WAIVE ANY RIGHT TO SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DESCRIPTION.  THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS AND ALL THEORIES OF LIABILITY ADVANCED, REGARDLESS OF WHETHER WHIRLOCAL WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS.

12. General Provisions

12.1. Successor Interests: This Agreement and all rights and liabilities under it and in and to any and all obligations secured here and in and to all collateral shall inure to the benefit of Affiliate and his/her successors and assigns, and shall be binding on Company and its successors and assigns.

12.2. Further Assurances: The Affiliate shall execute, acknowledge, and deliver, from time to time, such further instruments as the Company may require to accomplish the purposes of this Agreement.

12.3 Modification/Amendments.  This Agreement and WhirLocal’s standard Terms of Service may be modified by WhirLocal at any time, with or without prior notice to You.  Amendments or modifications to this Agreement or the Terms of Service will be binding on You when they are sent to You via email or are posted in the affiliate area.  Your continued acceptance and participation in the Affiliate Program constitute Your acceptance to any modifications or amendments to this Agreement and the Terms of Service.

12.4. Attorneys’ Fees: In the event this Agreement is placed in the hands of an attorney for enforcement, the party in default agrees to pay the reasonable costs and expenses of enforcing this Agreement, including reasonable attorneys’ fees. In the event a suit or action is filed to enforce this Agreement or to construe or interpret this Agreement, the prevailing party shall be entitled to recover the reasonable costs and expenses of the suit or action, at trial or upon appeal, including reasonable attorneys’ fees.

12.5 Prior Agreements: This Agreement is the entire agreement between the parties pertaining to its subject matter, and it supersedes all prior agreements, representations, and understandings of the parties. There are no agreements, representations or warranties except as set forth in this Agreement. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties.

12.6 Number, Gender, and Headings: In this Agreement, the singular shall include the plural and the plural shall include the singular. Any indication of the gender of a party in this Agreement shall be modified, as required, to fit the gender of the party in question. The headings used in this Agreement are solely for a convenient reference, are not part of this Agreement, and are not to be considered in construing or interpreting this Agreement.

12.7 Severability: If in any judicial proceeding a court shall refuse to enforce any of the provisions of this Agreement, any unenforceable provision shall be construed or modified to the extent necessary to make such provision enforceable or, only if such construction or modification is not possible, the unenforceable provision shall be deemed eliminated from this Agreement for the purpose of such proceeding to the extent necessary to permit the remainder of the Agreement to be enforced in such proceeding.

12.8 Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

12.9 Choice of Law, Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. The Parties consent to jurisdiction and venue in Marion County, Oregon.