This Affiliate Program Agreement (“Agreement”) is a binding agreement between Wistia, Inc., (“Wistia”) and you, the business entering into this Agreement, (“Affiliate”), (collectively “the Parties,” individually “a Party”). This Agreement governs Affiliate’s participation in Wistia’s Affiliate Program as further described herein (the “Program”).
AFFILIATE MAY NOT PARTICIPATE IN THE PROGRAM IF IT DOES NOT ACCEPT THIS AGREEMENT. IF AFFILIATE IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A WISTIA OR OTHER LEGAL ENTITY, AFFILIATE REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “AFFILIATE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
In addition to these terms, to enroll in the Program the Affiliate must accept the Program terms available on the PartnerStack platform.
Purpose. Wistia is in the business of offering a video marketing platform. Affiliate is in a position to refer prospective customers to Wistia. This Agreement provides the terms and conditions under which Affiliate will do so as part of the Program.
Referral Arrangement. By accepting this Agreement and participating in the Program, Affiliate may, from time to time, refer new prospective customers (each, a “New Customers”) to Wistia on a non-exclusive basis. Wistia will pay Affiliate a referral fee for each Successful Referral. A “Successful Referral” occurs where: (a) a New Customer signs up for Wistia products directly using Affiliate’s dedicated “Affiliate Link” provided by Wistia and (b) the New Customer converts to a paid Wistia account directly following its access to the Wistia services following the use such dedicated Affiliate Link. Further, a referral will only be a Successful Referral if the New Customer is not a customer that (i) Wistia has already contracted with or contacted about its services; or (ii) has already been referred to Wistia by a third party.
Referral Fee. For each Successful Referral, Wistia shall pay Affiliate a payout based on the pricing plan chosen by each New Customer (the “Referral Fee”). For the specific payouts, see here: https://wistia.partnerstack.com.
Payments. Referral Fee payments in the Wistia Partner Program are handled by PartnerStack (the “Payment Provider”). In order to receive payments under this Agreement, Affiliate must create and maintain an account with Payment Provider in the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”), which is provided pursuant to terms directly between the Payment Provider and Affiliate. Affiliate must keep all information updated and complete within the Payment Provider Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Payment Provider Platform will reflect payment history to Affiliate, and the parties agree that: (a) the data shown in the Payment Provider Platform will govern payments to be made, subject to Wistia’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final twelve (12) months after the applicable Successful Referral occurs. Wistia reserves the right to audit and investigate any Referral Fee payment and may withhold such Referral Fee payment if Wistia determines, in its sole discretion Affiliate is not in compliance with this Agreement.
Relationship of the Parties. Affiliate is an independent contractor of Wistia and nothing in this Agreement shall be construed to create any association, partnership, joint venture, employee or agency relationship between the Wistia and Affiliate for any purpose. Affiliate has no authority (and shall not hold itself out as having authority) to bind Wistia to any New Customer or any third party, and Affiliate shall not make any agreements or representations on Wistia’s behalf. Each Party is solely responsible for paying all of its costs and expenses related to this Agreement.
Term. This Agreement shall commence upon the date that Affiliate joins the Program and will continue until otherwise terminated by one of the Parties pursuant to Section 8 of the Agreement.
Confidentiality. During the course of this Agreement, it may be necessary for either Party to share proprietary and/or confidential information with the other Party, including, but not limited to trade secrets and non-public industry knowledge (the “Confidential Information”). Either Party will not share any Confidential Information with any third party at any time. Affiliate will also not use any Confidential Information for his/her or a third party’s personal benefit at any time. This section remains in full force and effect even after termination of the Agreement.
Termination. This Agreement may be terminated at any time by: (a) either Party upon 30 days written notice to the other Party or (b) by Wistia immediately upon notice if Affiliate breaches any provision of this Agreement. If Wistia terminates the Agreement its payment obligations for Successful Referrals shall survive for a period of one (1) month after termination of the Agreement; provided that Affiliate is only entitled to Referral Fees for each Successful Referral sent prior to the effective date of termination.
Representations and Warranties. Both Parties represent that they are fully authorized to enter into this Agreement and that each Party shall comply with all applicable laws, rules, and regulations. Affiliate further represents and warrants that:
- it will conduct itself in an ethical manner and refer only bona fide New Customers to Wistia. Affiliate cannot “self-refer,” which means that the affiliate fees will only result in transactions done by other people using r link;
- it will not infringe upon any third-party rights
- its website will not be identical, copied in any way, nor will it mirror the look and feel of Wistia’s site. Affiliate cannot in any way create an impression that its site is Wistia’s website or even mirror a part of Wistia’s website in any manner;
- it will not engage in any behavior that is fraudulent, abusive or harmful to Wistia’s website or Program at Wistia’s discretion;
- it may not engage in cookie stuffing or include pop-ups or inaccurate or misleading links on Affiliate’s website. In addition, Affiliate will not attempt to mask the referenced URL information (i.e., the page from which the click originated);
- it will not use redirects to bounce a click from a domain that did not originate the click to make it appear as if the click came from that domain. If Affiliate is found redirecting links to hide or manipulate the original source, Referral Fees not yet paid by Wistia will be void and Affiliate’s account will get terminated. This doesn’t include using “out” redirects from the same domain where the affiliate link is placed;
- it will not send unsolicited bulk-email (spam). Affiliate shall not create advertising sites that contain adult content, pornography, weapons, graphic violence (including any violent video game images), alcohol, drugs, tragedy, transportation accidents, sensitive social issues or gambling, or content that is abusive, profane, hateful, threatening, harmful, abusive, abusive, harassing, or discriminatory (whether by race, ethnicity, religion, religion, sex, sexual orientation, physical disability, or otherwise);
- it must only use branded ad copy, content, and media provided by Wistia. Any ad copy, content, or media not provided by Wistia must be approved by Wistia prior to use.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL WISTIA BE LIABLE TO AFFILIATE OR ANY THIRD PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. WISTIA WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE PAYMENT PROVIDER OR THE PAYMENT PROVIDER PLATFORM. TO THE FULLEST EXTENT PERMITTED BY LAW, WISTIA’S LIABILITY TO AFFILIATE OR ANY THIRD PARTY WILL NOT EXCEED $100.00.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WISTIA DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTEE, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PROGRAM PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROGRAM IS PROVIDED STRICTLY ON AN “AS IS” BASIS, AND ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, WISTIA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPENSATION OR ANY OTHER BENEFITS THAT AFFILIATE WILL RECEIVE. ALL OF WISTIA’S OBLIGATIONS ARE AS, AND ONLY AS, EXPRESSLY STATED IN THIS AGREEMENT. AFFILIATE HAS NO RESPONSIBILITY TO WISTIA IF ANY REFERRAL DOES NOT LEAD TO A SUCCESSFUL REFERRAL.
FTC Endorsement Compliance: It is the mission of Wistia to treat all its customers well. In line with this, we require all Affiliates to comply with applicable laws, regulations and guidelines regarding advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which requires disclosure of communications between advertisers and sponsors. This means that all of Affiliate’s materials (e.g., emails, websites, blogs) must clearly disclose the fact that it is receiving compensation for referred customers. Wistia reserves the right to withhold payment of any Referral Fee(s) and terminate this Agreement if, in Wistia’s sole discretion, it is determined that Affiliate is not in compliance with any of the foregoing guidelines or any other FTC regulations or guidelines that Wistia deems appropriate.
No License Grant. Nothing in this Agreement shall be construed as granting Affiliate, by implication, estoppel or otherwise, any license or other right under any intellectual property rights of Wistia. EXCEPT AS EXPRESSLY PERMITTED HEREUNDER, AFFILIATE SHALL NOT AND ARE NOT PERMITTED TO (i) USE THE WISTIA TRADEMARK, NAME, LOGO, OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, “WISTIA IP”) (OR ANY MISSPELLINGS OR VARIATIONS THEREOF OR OTHER TERM OR TERMS SIMILAR TO ANY OF THE FOREGOING) WITHOUT WISTIA’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE WISTIA IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), SEARCH TERMS, KEYWORDS, CODE, OR ADVERTISING; (iii) ACT IN ANY WAY THAT CAUSES OR COULD CAUSE, CREATES OR COULD CREATE AN “INITIAL INTEREST CONFUSION” OVER THE USE OF WISTIA IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. AFFILIATE’S USE OF WISTIA IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF WISTIA’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT AFFILIATE TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY WISTIA’S LEGAL COSTS AND FEES IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH WISTIA SEEKS TO IMPLEMENT ITS RIGHTS UNDER THIS AGREEMENT OR IN REGARD TO ANY OF WISTIA’S INTELLECTUAL PROPERTY RIGHTS.
Pay-per-click (“PPC”) restrictions. Unless Wistia provides Affiliate express written permission, Affiliate agrees to the following restrictions:
- Affiliate may not bid on any of our restricted terms (defined below) for search or content-based campaigns on Google, Bing, Yahoo, Capterra, Facebook or any other such networks.
- “Restricted Terms” is any of the following terms: Wistia, Wistia LLC, Wistia.com, https://Wistia.com/, Wistia coupon, Wistia discount code, Wistia discount, Wistia promo code, Wistia sale, Wistia promo, Wistia sales, Wistia deals, or any other use of Wistia’s IP or goodwill not expressly allowed hereunder.
- Affiliate may not use Restricted Terms, including any changes or misspellings above, in sequence with any other keywords.
- Affiliate may not use Restricted Terms as a title, ad copy, display name or display URL. Affiliate may not use any of Wistia’s trademark terms as part of a domain or subdomain for Wistia’s website.
- Affiliate cannot direct links from any PPC advertisement to the site or use redirects that get the same result. Customers should be directed to a genuine page on Affiliate’s website. Affiliate cannot bid for any search term in any auction-style PPC advertising program in any way.
- If Affiliate will automate its PPC campaigns, it is solely responsible for excluding the terms of Wistia’s trademark from its marketing and related activities. Wistia strongly suggests that Affiliate add Wistia’s trademark terms as negative keywords.
Social Media Restrictions. When advertising or promoting the Program on Facebook, Twitter, Instagram, YouTube, and other social media platforms, Affiliate represents and warrants that it will comply with the following requirements:
- Affiliate can only promote programs and links on its social media page.
- Affiliate is prohibited from posting its links on Wistia’s Facebook, Twitter, Pinterest, or any other Wistia’s social media account or page in an effort to convert those links into affiliate sales.
- Affiliate is prohibited from creating a social media account that includes Wistia’s trademark in the page name and/or username.
Severability. In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.
Waiver. The failure by either Party to exercise any right, power or privilege under the terms of this Agreement will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of law provisions. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in Massachusetts, and both parties hereby consent to such jurisdiction and venue for this purpose. In any action or proceeding to enforce this Agreement, the prevailing Party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
No Class Action. Any action brought by a Party hereunder may only be conducted on an individual, not a class wide, basis. No action or proceeding between the Parties may be consolidated with any other arbitration proceeding involving Wistia and any other person or entity. Each Party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section. BY AGREEING TO THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST WISTIA AND/OR RELATED THIRD PARTIES.
Limitations. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.
Assignment. Affiliate shall not assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the Wistia. Wistia may freely assign this Agreement.
Notice. Notice to Affiliate may be given by a notification within the Payment Provider Portal and/or email to Affiliate to the address provided to Wistia. Notice will be effective when given. Notice to Wistia may be given by email to Wistia at firstname.lastname@example.org and will be effective when received.
Entire Agreement. The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties with respect to the Program, and supersedes all prior agreements related to the Program. Wistia may change the Program and this Agreement at any time, in its sole discretion and without notice to Affiliate and any changes will supersede all previous versions of this Agreement. Wistia will notify Affiliate of any material changes affecting its rights through a notification within the Payment Provider Portal and/or a direct email to Affiliate referencing the latest version.