BILLY GENE IS MARKETING REFERRAL PROGRAM
As a Billy Gene is Marketing, Inc. (“BGIM”) Affiliate, You have the opportunity to earn money commissions (“Commissions”) for BGIM accounts that You sell to other users. This Agreement sets forth Your rights and obligations as a BGIM Affiliate. By clicking “I Agree” You indicate that You have read and understood this Agreement and You will be bound by its terms.
1. PARTIES. All references to “BGIM” herein include BGIM’s owner(s), parent company(ies), referral entities, and employees, and assigns. All references to “You” and “Your” mean and refer to that BGIM Affiliate who 1) maintains an active Gene Pool Membership and 2) has executed this Agreement by clicking “I Agree.” BGIM and You are each referred to herein as a “Party,” and collectively as the “Parties.”
2. INDEPENDENT CONTRACTOR. You are an independent contractor of BGIM. It is the express understanding and intention of the Parties that no relationship of master and servant or principal and agent shall exist between BGIM and You by virtue of this Referral Agreement.
3. TERM AND TERMINATION. Your contract with BGIM begins when You click “I Agree” and, provided You maintain an active Gene Pool Membership, will continue from month-to-month until either:
A. BGIM cancels Your account due to Your breach of any of the terms of this Agreement;
B. You cancel or otherwise terminate your Gene Pool Membership; or
C. BGIM or its successors or assigns, in its sole and absolute discretion, cancels Your Referral Agreement. In the event that BGIM or its successors or assigns cancels Your Referral Agreement, You will first receive ten (10) days’ written notice, sent to the e-mail address you provided BGIM and that is associated with your Referral profile.
In the event this Agreement is cancelled due to Your breach, You forfeit all Commissions owed to You or that may in the future be owed to You. In the event this Agreement is terminated or cancelled for any reason other than Your breach, You shall be entitled to all Commissions earned prior to the date this Agreement is terminated or cancelled.
A. COMMISSIONS. After You click “I Agree” to the terms of this Agreement, You will receive a unique Referral URL, which You will use to advertise BGIM’s products or services. When another person (a “Prospect”) clicks through that URL, a cookie (or similar tracking technology (hereinafter “Cookie”)) will be set in the Prospect’s browser. When the Prospect creates a BGIM account by using Your Referral Link, the Cookie on the Prospect’s browser, corresponding to Your unique URL, registers a “Sale,” and each such account is a “Sold Account.” In the event that a Prospect has multiple Referral Cookies, the most recently-acquired Cookie will determine which Referral is credited with a Sale. You will be paid a commission for each Sold Account that generates a minimum payment of $109.00 to BGIM each month (each such payment, a “Sold Account Monthly Payment”). The Commission amount shall be 35% of each Sold Account Monthly Payment received by BGIM. Earned Commissions will be paid to You within fifteen (15) days following the date that is sixty (60) days following that date of BGIM’s receipt of a Sold Account Monthly Payment, subject to the other terms set forth herein.
B. TAXES. Before You can be paid any Commission, You must provide BGIM a completed W-8 or W-9, as instructed by BGIM. You will be deemed to have permanently waived all rights to Commissions that were earned more than 120 days before submitting a completed W-8 or W-9 to BGIM. 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 Commissions You receive from BGIM. If You are not a resident of the United States, BGIM may withhold tax (including without limitation VAT) where required to by applicable law. Where BGIM is required to withhold tax, BGIM will document such withholding.
C. MINIMUM COMMISSION PAYMENT. The Referral agreement requires no minimum commission amount prior to payment. All commissions will be paid within the terms noted within this Referral Agreement.
D. COMMISSION PAID FOLLOWING LEGITIMATE SALE. Commissions are paid only for transactions that actually occur between BGIM and a Sale. If the transaction does not actually occur, or if payment from a Sale is not actually received by BGIM, You will not be paid a Commission on the transaction. If payment for a Sold Account later results in a refund or charge-back, and if a Commission was paid to You for that Sold Account payment, then the Commission will be deducted from Your future Commissions. If BGIM determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, no Commission will be paid for such Sale. If any Commissions are paid for a Sale that was produced fraudulently or as a result of any violation of this Agreement, and the fraud or violation is discovered by BGIM after payment, such payment amounts shall be deducted from Your future Commissions.
E. PAYMENT METHOD. All Commissions are paid in US Dollars. All Commission payments will be made by check or such other electronic means that BGIM may choose in its sole and absolute discretion. If payment is made by check, the check will be dispatched to your address on record with BGIM within ten (10) calendar days of the scheduled payment date. Depending on what payment processor or payment method BGIM elects to use, processing fees may be deducted from Your Commissions payment.
5. MARKETING AND RECRUITING.
A. PRE-APPROVAL. You must obtain the prior written approval of BGIM prior to transmitting (whether in print, digital, or otherwise) any paid marketing or advertising communications (collectively, “BGIM Referral Marketing”) to consumers in connection with your efforts to sell BGIM accounts. Any BGIM Referral Marketing undertaken without BGIM’s prior written approval shall be grounds for immediate termination of this Agreement.
B. TRUTHFUL. All BGIM Referral Marketing must be true and accurate. Claims that relate to any BGIM service or opportunity that are untrue or fraudulent are strictly prohibited. You may not claim that any government, person, or entity endorses or supports BGIM. You may not use the intellectual property of any other person or entity in advertising any BGIM service or opportunity.
C. DISCLAIMER. On any website that You engage in BGIM Referral Marketing, You must plainly display (i.e., not in a link, or in small font) the following disclaimer language:
Disclosure: I am an independent BGIM Affiliate, not an employee. I receive referral payments from BGIM. The opinions expressed here are my own and are not official statements of BGIM or its affiliates.
D. NON-DISPARAGEMENT. You are not permitted to disparage the products of services of BGIM or any other person or entity, including without limitation the products or services of a competitor of BGIM.
E. INVENTORY LOADING/REBATES. You will not be paid any Commission for payments made on your own User Account(s). You are not permitted to open a BGIM account under the name of another person or entity, or under a fictitious name. You are not permitted to open a BGIM account under any name merely for the purpose of obtaining Commissions or any other compensation, including without limitation incentives or prizes which may be offered from time to time. You may not pay for another person’s account. You are not permitted to offer cash rebates or other monetary incentives to actual or potential Sales. Violation of this paragraph shall constitute a material breach of this Agreement, and You agree to repay to BGIM all Commissions earned as a result of any such violation.
F. INCOME CLAIMS. If Your recruiting efforts (including, without limitation, BGIM Referral Marketing) include claims related to the potential income a BGIM Affiliate can make, or if You make reference to income You have made, or if You make reference to any lifestyle opportunities You have because of BGIM, the following guidelines must be adhered to:
1. Your statements must be completely true and accurate and supported by evidence; and
2. If You use a hypothetical scenario, You must clearly label it as a hypothetical scenario.
6. BGIM’s INTELLECTUAL PROPERTY. No logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information (collectively, the “BGIM Intellectual Property”) owned by BGIM may be used, copied, or reproduced by You except as set forth below. No BGIM Intellectual Property (or any mark confusingly similar to any BGIM Intellectual Property) is to be advertised for sale or registered as a domain name by You in any fashion.
You may use the BGIM mark to advertise BGIM. Any time You use the BGIM mark, You must do so in a way that is not likely to confuse readers or cause them to think that You are speaking for BGIM. Whether Your use of BGIM is confusing will be determined by BGIM in BGIM’s sole and absolute discretion. The following guidelines, which may be changed or added to at any time, are designed to help avoid reader confusion, but are not dispositive of all issues that may arise:
- You must not use the “voice” of, or purport to speak on behalf of, BGIM.
- Any time You use the word “BGIM” or “Billy Gene Is Marketing” it must be immediately followed by the letters “TM” in superscript caps.
- On any website or social media platform on which You use “BGIM” or “Billy Gene Is Marketing,” you must include the disclosure identified in paragraph 5(B) above.
- You may use only such other images, photographs, and trademarks as BGIM expressly authorizes in writing.
- If you have any questions regarding your use of any BGIM mark, please contact: INFO@ASKBILLYGENE.COM
7. RELEASE/AUTHORIZATION TO USE PHOTOGRAPHS. You grant BGIM permission to use any and all photographs taken by BGIM or its agents or employees, or submitted by You to BGIM (hereinafter “Photographs”) in any Media (including print, internet, film, television and no matter how distributed or published) for any purpose, which may include, but shall not be limited to, advertising, promotion, marketing and packaging of BGIM or any product or service sold and marketed by BGIM. You agree that this authorization to use Photographs may be assigned by BGIM to any other party. You agree that that the Photographs may be combined with other Photographs, sounds, text and graphics, and that the Photographs may be manipulated, cropped, altered or modified in BGIM’s sole discretion. You agree not to charge a royalty or fee, and not to make any other monetary assessment against BGIM in exchange for this Release and Assignment. You hereby release and forever discharge BGIM from any and all liability and from any damages You may suffer as a result of the use of the Photographs. You further acknowledge and agree that this Release is binding upon Your heirs and assigns. You agree that this Release is irrevocable.
8. PROHIBITED ACTIVITY. BGIM has the right to terminate this Agreement at any time if You engage or have ever engaged in any of the following:
A. HARMFUL ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to BGIM’s reputation; and the violation of the rights of BGIM or any third party.
B. “SPAMMING” AND UNSOLICITED COMMUNICATIONS. Any communications sent or authorized by You reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third-party blogs) will be deemed a material threat to BGIM’s reputation and to the rights of third parties. It is Your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.
C. OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorized by You, including without limitation postings on any website operated by You, or social media or blog, which are: sexually explicit, obscene, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; solicitous of unlawful behavior; or that violates the intellectual property rights of another.
9. INDEMNITY. You agree to protect, defend, indemnify and hold harmless BGIM, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”) arising out (i) any actions or omissions of You or any of Your agents with respect to this Agreement, (ii) any negligent, reckless, intentional or willful wrongful act or omission on the part of You or your agents in connection with the performance of Your respective obligations under this Agreement, (iii) any failure of You or any of Your agents to perform Your obligations under this Agreement in accordance with all applicable laws or industry standards; (iv) any breach or non-fulfillment of any representation, warranty or covenant under this Agreement by You or any of your agents; and (v) a determination by a governmental authority that You are not an independent contractor with respect to BGIM. This indemnification obligation shall apply regardless of the amount of insurance coverage held by BGIM or its affiliates.
10. NO WARRANTY; NO LEADS. BGIM does not promise, guarantee or warrant Your business success, income, or sales. You understand and acknowledge that BGIM will not at any time provide sales leads or referrals to You. Additionally, BGIM’s WEBSITES AND SERVICES 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. BGIM MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH ANY BGIM WEBSITE OR SERVICE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. BGIM MAKES NO REPRESENTATION OR WARRANTY (A) THAT ANY BGIM WEBSITE OR SERVICE WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO ANY BGIM WEBSITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT ANY BGIM’s WEBSITE OR THE SERVERS OR NETWORKS THROUGH WHICH ANY BGIM’s 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.
11. LIMITATION OF LIABILITY. YOU AGREE THAT IN NO EVENT SHALL BGIM’s LIABILITY TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION EXCEED THE AMOUNT OF THREE (3) TIMES THE COMMISSIONS PAYMENTS PAID TO YOU FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST BGIM OCCURRED. YOU WAIVE ANY RIGHT TO SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DESCRIPTION.
12. FORCE MAJEURE. BGIM will not be responsible to You for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of BGIM. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. BGIM shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
13. ASSIGNMENT. BGIM may assign its rights under this Agreement at any time, without notice to You. Your rights arising under this Agreement cannot be assigned by without BGIM’s or its assigns express written consent.
14. ARBITRATION, GOVERNING LAW, AND ATTORNEYS’ FEES.
A. ARBITRATION. Any claim or grievance of any kind, nature or description that You have against BGIM including, but not limited to, economic losses, personal injury, or property damage, shall be resolved exclusively in binding arbitration in San Diego, California. You agree not to file suit against BGIM or any of its affiliates, subsidiaries, officers, directors, employees, successors, or assigns. The arbitration will take place before a neutral arbitrator (hereafter, “Arbitrator”) agreed upon by You and BGIM. In the event that You and BGIM are unable to reach agreement on an Arbitrator, You and BGIM will each select an arbitrator, and the two of them will select the Arbitrator. The arbitrators selected by You and BGIM will have no further involvement in the arbitration. The Arbitrator will determine the rules governing arbitration. The decision of the Arbitrator will be final and binding on You and BGIM and may be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitrate survives any termination or expiration of the Agreement.
B. GOVERNING LAW. This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of California without regard to any choice of law provisions.
C. WAIVER OF CLASS ACTION CLAIMS. You understand and agree that You will not have the right to participate in a representative capacity or as a member of any class of claimants pertaining to any claims that may arise under, or be in any way related to, this Agreement. There is no right or authority for any claim You have against BGIM to be brought on a class action basis or on any basis involving claims brought in a purported representative capacity on behalf of the general public, or on behalf of other persons or entities similarly situated. Claims brought against BGIM may not be joined or consolidated with claims brought by anyone else.
D. LIMITATIONS PERIOD. Any claim brought in arbitration must be brought within the time period set forth in any statute of limitations that, but for this agreement to arbitrate, would apply to the claims asserted in any arbitration proceeding.
E. INJUNCTIVE RELIEF. Nothing in this Agreement prevents BGIM from applying to and obtaining from any court having jurisdiction a temporary injunction, preliminary injunction, permanent injunction, or other relief available to protect BGIM’s rights prior to, during, or following any arbitration proceeding.
F. ATTORNEYS’ FEES. You agree that in the event of any arbitration or litigation, each Party will each bear its own costs and attorneys’ fees, regardless of who is deemed the prevailing party. The foregoing notwithstanding, if either You or BGIM commences an action in a court of law or equity and the responding Party successfully moves such court to compel arbitration, the Party who moved for the order compelling arbitration shall be entitled to recover its reasonable costs and attorneys’ fees incurred on the motion to compel from the other Party.
15. ENTIRE AGREEMENT. This Agreement, along with BGIM’s standard Terms and Conditions represents the entire agreement between the Parties and supersede any other written or oral agreement between the Parties as pertaining to Your rights and responsibilities as a BGIM Affiliate.
16. MODIFICATION/AMENDMENTS. This Agreement and BGIM’s standard Terms and Conditions may be modified by BGIM at any time, with or without prior notice to You. Amendments or Modifications to this Agreement or the Terms and Conditions will be effective immediately upon the earlier of a public posting or an email sent to You. It is Your responsibility to review this Agreement and the Terms and Conditions for updates or changes. No amendment to this Agreement or the Terms and Conditions shall be valid unless authored or signed by BGIM. Your continued acceptance of Commission payments constitutes Your acceptance to any modifications or amendments to this Agreement.
17. NO WAIVER. No waiver by BGIM of any right reserved or granted to BGIM under this Agreement shall be effective unless the waiver is in writing and signed by an authorized representative of BGIM.
18. NOTICE. Any notice required to be given to BGIM under or related to this Agreement shall be in writing, addressed as follows:
Billy Gene Is Marketing, Inc.
1133 Columbia St #102, San Diego, CA 92101
BGIM will send notices to You at the e-mail address You provided to BGIM. Any notices shall be deemed delivered to You when sent by BGIM. You are solely responsible for addressing any technical failures related to Your e-mail address or server, and for reading any e-mail sent to You.
19. SEVERANCE. In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement, as so modified, shall continue in full force and effect.