AFFILIATE AND RESELLER AGREEMENT / TERMS OF SERVICE
EMP Shield Inc. (“EMP Shield”), an electronics manufacturer, seeks to engage the services of an Affiliate and Reseller. The Affiliate or Reseller is willing to collaborate with EMP Shield as an independent contractor. Therefore, the parties agree as follows:
1. AFFILIATION. EMP Shield engages Affiliate and/or Reseller as an independent contractor who agrees to provide services directed by EMP Shield or its successor entities. Affiliate and Reseller accepts this engagement and agrees to adhere to EMP Shield’s production expectations and guidance, both as generally communicated to Affiliate and Reseller and as explicated outlined herein. Affiliate and Reseller agrees to be bound by these terms of service. Affiliate and reseller are uniquely different terms and sell products differently. Affiliates sell EMP Shield products through the use of a link and/or coupon code. When the coupon code is used in a sale online, the affiliate receives a 15% commission (more details below). A reseller purchases EMP Shield products at special pricing (30% off unless specifically negotiated in writing) and holds stock of EMP Shield products to be sold at physical locations and/or online.
2. BEST EFFORTS OF AFFILIATE AND RESELLER. Affiliates and Resellers agree to diligently perform all services required by this Agreement to the satisfaction of EMP Shield at such locations and times and EMP Shield shall communicate to Affiliate and Reseller.
3. COMMISSION PAYMENTS. EMP Shield will pay Affiliates a commission of 15% of the pre-tax sale price of EMP Shield products sold through and by an Affiliate (the “Commission”) online (which is tracked by the use of an affiliate coupon for the sale to determine which affilaite receives the commission for the sale). Senior Affiliates must inform their sub-Affiliates of this rate. However, regardless of the number of sub-Affiliates involved, only one or Affiliate entity or person will be entitled to the Commission payable by EMP Shield. Payments will be made monthly on the 10th date of each month, with payments being made two months in arrears. Senior affilaites will earn a 5% commission for the sales made by their sub-affiliates.
4. ACCOUNTING. EMP Shield will maintain detailed records for commission calculation purposes and provide Affiliate and Reseller with an online accounting system detailing payment calculations. The Affiliate and Reseller portal system provides estimates with an accuracy of approximately +/- 8%, accounting for returns, transaction changes, chargebacks, and online purchase-related factors.
5. RIGHT TO INSPECT. Affiliates and Resellers or their agent may inspect EMP Shield’s records to verify commission calculations, subject to reasonable confidentiality restrictions imposed by EMP Shield. Such inspections will occur during EMP Shield’s normal business hours, after reasonable written request for inspection. Permitting inspection within 2 weeks shall be reasonable.
6. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Affiliates and Resellers are encouraged to provide EMP Shield with beneficial information, suggestions, and recommendations regarding EMP Shield’s business based on their knowledge and expertise. EMP Shield shall have sole discretion as to whether any such suggestions or other information is utilized.
7. CONFIDENTIALITY. Affiliates and Resellers acknowledge that EMP Shield possesses proprietary information, including inventions, product designs, trade secrets, copyrights, costs, discounts, business affairs, patents, and internal components within our devices, collectively referred to as “Information.” Affiliate and Reseller agrees not to attempt to disassemble or hack into EMP Shield products to uncover such Information. Further, Affiliate and Reseller agrees it will not disclose this Information to any third party without prior written consent from EMP Shield. Affiliates and Resellers will treat this Information as strictly confidential and protect it accordingly. Violation of this agreement constitutes a material breach and may result in legal action. If Affiliate or Reseller is found to have materially breached this paragraph 7, EMP Shield shall be entitled to injunctive relief without the need for posting a bond, and shall be entitled to recover its reasonable attorneys’ fees and court costs from Affiliate or Reseller in any formal legal proceeding brought in relation to this paragraph 7.
8. CONFIDENTIALITY AFTER TERMINATION OF AFFILIATION. The confidentiality provisions of this Agreement shall remain in full force and effect for the maximum enforceable period of time possible under Kansas Law, which in no case shall be less than two (2) years after the termination of Affiliate and/or Reseller’s services pursuant to this Affiliate and Reseller Agreement.
9. AFFILIATE AND RESELLER’S INABILITY TO CONTRACT FOR EMP SHIELD. Affiliates and Resellers are not authorized to enter into any contracts or commitments on behalf of EMP Shield without prior written consent from EMP Shield. Affiliates and Resellers are not agents of EMP Shield, nor do they possess any authority to act on behalf of EMP Shield, other than the limited, explicit permission to resell EMP Shield products as explicated outlined herein. Additionally, this Agreement the relationship with EMP Shield does not create a partnership, joint venture, employment relationship, or any other formal business relationship other than that of an independent contractor.
10. TERM/TERMINATION. Affiliates and Reseller’s affiliation under this Agreement is indefinite and “at will.” EMP Shield may terminate this Agreement with 30 days prior written notice, as can Affiliate and Reseller. In the event of Affiliate and Reseller’s violation of this Agreement, EMP Shield may terminate the affiliation and this Agreement without notice, with compensation owed to Affiliate and/or Reseller accruing only up to the date of termination, while the payment terms in paragraph 3 remain applicable. Such compensation shall be Affiliate and/or Reseller’s exclusive remedy.
11. RETURN OF PROPERTY. Upon termination of this Agreement, Affiliate and/or Reseller must promptly return all property belonging to EMP Shield or related to its business, including but not limited to keys, records, notes, product, property, data, memoranda, models, and equipment owned by EMP Shield, which are in Affiliate and Reseller’s possession or control. Affiliate and/or Reseller also agree to return any and all such confidential Information stored in any physical or electronic form upon termination of this Agreement by either party. This does not include any items purchased by the affiliate or reseller such as EMP Shield products.
12. NOTICES. All notices required or permitted under this Agreement shall be in writing and considered delivered when delivered in person, when delivered via electronic mail with delivery confirmation, or three (3) days after being sent via United States mail, postage prepaid, addressed to:
EMP Shield
3908 S 4th St,
Burlington, KS 66839
Either party may change their address by providing written notice.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties, and there are no other promises or conditions in any other agreement, whether oral or written. It supersedes any prior written or oral agreements between the parties.
14. AMENDMENT. This Agreement may be modified or amended only if the changes are made in writing and signed by both parties.
15. SEVERABILITY. If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions shall remain valid and enforceable. If a court finds that any provision is invalid or unenforceable but could be valid or enforceable with limitations, it shall be deemed written, construed, and enforced as so limited.
16. WAIVER OF CONTRACTUAL RIGHT. Either party’s failure to enforce any provision(s) of this Agreement does not waive or limit that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
17. APPLICABLE LAW. This Agreement shall be governed by the laws of the state of Kansas, without regard to conflicts or choice of law principles thereof.
18. ETHICAL MARKETING AND FAIR BUSINESS PRACTICES. EMP Shield strives to maintain the highest ethical standards in marketing our products and expects the same from Affiliates and Resellers. Affiliates and Resellers are responsible for creating their own marketing materials without replicating the work of others. All marketing materials produced by Affiliates and Resellers must receive approval from EMP Shield before public distribution. While authorized Affiliates and Resellers can utilize materials created by EMP Shield, modification requires written permission. Additionally, EMP Shield reserves the right to terminate the business relationship with any Affiliate and Reseller found not adhering to fair and reasonable business practices. If any liabilities, losses, damages, claims, lawsuits, or otherwise arise related to marketing efforts from an Affiliate or Reseller, then such Affiliate or Reseller agrees it will indemnify and hold harmless EMP Shield from any such losses, damages, claims, lawsuits, etc. including any of EMP Shield’s associated legal costs or attorneys’ fees.
19. THIRD-PARTY ONLINE MARKETPLACE SELLING POLICY (AMAZON, EBAY, WALMART, ETC.). Authorized EMP Shield Affiliates and Resellers are prohibited from selling EMP Shield Products through third-party online “Marketplace” sites. However, they can sell EMP Shield Products on their own online website e-commerce platform.
20. Physical Marketplace / Box Store Sales / Co-Ops (Walmart, Home Depot, Lowes, Menards, Etc.). Authorized EMP Shield Affiliates and Resellers are not permitted to sell EMP Shield Products through physical third-party marketplaces, box stores, or Co-Ops without written consent from EMP Shield.
21. Online Paid Marketing. Authorized EMP Shield Affiliates and Resellers are not permitted to use paid online advertising to sell EMP Shield Products. Paid advertising to sell EMP Shield Products via print media and radio is authorized, but all ad creatives/copy/scripts must be approved by EMP Shield in writting prior to print /distribution/broadcasting.
22. Minimum Advertised Pricing (MAP). Authorized EMP Shield Affiliates and Resellers are prohibited from advertising EMP Shield Products below the provided MAP price. MAP pricing is subject to change, and Affiliate and Resellers agree to adjust MAP pricing within 30 days of notification of any changes to EMP Shield Product MAP pricing. To request current map pricing contact EMP Shield at: info@empshield.com.
23. Non-Disparagement. The Affiliate and/or Reseller agrees and covenants not to make, publish, or communicate to any person or entity, or in any public forum, any defamatory or disparaging remarks, comments, or statements regarding EMP Shield, its businesses, products, employees, officers, customers, suppliers, investors, or other associated third parties. The Affiliate and/or Reseller shall uphold this non-disparagement agreement during their tenure as an independent contractor of EMP Shield and for three (3) years after cessation of affiliation with EMP Shield.
24. Non-Sollicitation. Affiliate and Reseller agree not to solicit any EMP Shield employees, agents, contractors, affiliated entities, subsidiaries, parent companies, partners, customers, clinets, or other affiliated persons or entities of EMP Shield to work for, or do business with Affiliate or Reseller, to the exclusion or detriment of EMP Shield in any way.
25. Exclusive Partnership. Affiliate and Reseller agree that they will not engage in any agreements or relationships to promote or sell any competing products, and will not sell any products competing with any EMP Shield products during the term of this Agreement, and for a period of three (3) years following termination of this Agreement (Unless written consent is received via letter in the mail physically signed by the President of the company and endorsed by the Vice President of Sales & Marketing) .
26. Reseller Payment:
Net 30 days via check, ACH, or credit card.
27. Sales Terms Agreement:
Resellers must agree to this Sales Terms Agreement via the online Reseller form prior to authorization to sell EMP Shield products.
28. Use of Trademarks
EMP Shield Inc. permits authorized resellers and affiliates to use EMP Shield trademarks exclusively for marketing and promoting EMP Shield products, in strict compliance with our brand guidelines and the terms of the reseller or affiliate agreement. Use of our trademarks is restricted to activities directly related to the authorized sale and promotion of EMP Shield products. Resellers and affiliates are prohibited from using EMP Shield trademarks in any manner that competes with EMP Shield Inc., misrepresents the relationship with EMP Shield, or for any purpose beyond the scope of authorized marketing. Unauthorized use may result in termination of the agreement and legal action.