Terms and Conditions for the Mark Struczewski Affiliate Program
Partner Program Agreement
February 2, 2021
By joining the Mark Struczewski Affiliate Program, you agree to be bound by the following Program Agreement (the “Agreement”). The Agreement is between you, as partner (“You” or “Partner”), and Mark Struczewski (“Mark Struczewski”). Each of Partner and Mark Struczewski may be referred to as a “Party”, and together as the “Parties”. You can review the current version of the Agreement at any time here. If a significant change is made, we will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact You. Any reference to the Agreement includes any and all terms and documents incorporated by reference.
1. Partner Responsibilities
1.1. Marketing Activities
- Partner will bear all costs and expenses related to Partner’s marketing or promotion of Mark Struczewski or Partner’s products or services associated with Partner’s participation in the Partner Program (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Mark Struczewski in its sole discretion.
- In no event will Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In conducting all Partner Marketing Activities, Partner will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
- Without limiting the generality of Section 1.1.2, Partner will (i) not send any email regarding Mark Struczewski to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information in any email regarding Mark Struczewski; and (iii) not imply that such emails are being sent on behalf of Mark Struczewski.
- A Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Mark Struczewski; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Mark Struczewski; (iii) make any false, misleading or disparaging representations or statements with respect to Mark Struczewski; (iv) solicit any of Mark Struczewski’s customers to leave Mark Struczewski; (v) copy, resemble or mirror the look and feel of Mark Struczewski’s websites, Mark Struczewski’s Trademarks (as defined below) or Mark Struczewski’s services or otherwise misrepresent Partner’s affiliation with Mark Struczewski; or (vi) engage in any other practices that may adversely affect the credibility or reputation of Mark Struczewski, including but not limited to, sending email communications or using any website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Mark Struczewski or the Partner’s services; (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities; or (c) violates any intellectual property or other proprietary rights of any third party; or (d) otherwise violates Mark Struczewski’s Policies.
- Anything Partner communicates in marketing or advertising any Mark Struczewski product, service or opportunity must be true and accurate. Claims that relate to any Mark Struczewski product, service or opportunity that are untrue or fraudulent are strictly prohibited. Partner may not claim that any government, person, or entity endorses or supports Mark Struczewski. Partner may not use the intellectual property of any other person or entity in advertising any Mark Struczewski product, service or opportunity.
1.2. Compliance with Laws
In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.
1.3. FTC Guidelines
- The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with Mark Struczewski, Partner receives compensation for referrals made to Mark Struczewski. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers.
- Full compliance with these guidelines requires, among other things, that (a) Partner clearly and conspicuously disclose that Partner is being compensated for referring customers to Mark Struczewski; and (b) Partner is not engaged in misleading or deceptive advertising. For further information Partner should refer to the statement released by the FTC regarding these guidelines.
1.4. Other Partner Terms
- Partner must have an active PayPal account in which to receive payment of any Referral Fees. This is the only method in which Mark Struczewski will pay You the Referral Fees. If you do not currently have a PayPal account, you can sign up here https://www.paypal.com/us/home.
- If the Partner is an individual, You must be the older of (i) 18 years; or (ii) at least the age of majority in the jurisdiction where You reside and from where You carry out Partner activities.
- You confirm that You are becoming a Partner for the purposes of carrying on a business activity and not for any personal, household or family purpose.
- To become a Partner, Partner must create a Partner Account by providing all information indicated as required. Mark Struczewski may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Mark Struczewski will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Mark Struczewski cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
- Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
- Partner will promptly inform Mark Struczewski of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Mark Struczewski by any third party.
- Partner acknowledges and agrees that Mark Struczewski may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Mark Struczewski’s website, and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Mark Struczewski will provide reasonable notice by email. Partner’s continued participation in the Mark Struczewski Partner Program after the amended Partner Program Agreement is posted to Mark Struczewski’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Mark Struczewski Partner Program.
- If Partner’s recruiting efforts include claims related to the potential income a Mark Struczewski customer 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 Mark Struczewski, the following guidelines must be adhered to: (a) Your statements must be completely true and accurate and supported by evidence; (b) if You use a hypothetical scenario, You must clearly label it as a hypothetical scenario.
2. Referral Fees
2.1. Payment of Fees
- Upon acceptance into the Partner Program, You will be assigned one or more unique Partner URLs that You will use to advertise Mark Struczewski. 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 Mark Struczewski account by using Your Partner URL, 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 Partner Cookies, the most recently-acquired Cookie will determine which Partner is credited with a Sale.
- Subject to Partner’s compliance with this Agreement, You will be entitled to a referral fee for each Sold Account that generates a payment to Mark Struczewski monthly or annually. The referral fee amount is up to 30% of all fees received by Mark Struczewski for a Sold Account (the “Referral Fees”). Payments of any Referral Fees will be made on the 25th of each month following Mark Struczewski’s receipt of such payments.
- Referral Fees are paid only for transactions that actually occur between Mark Struczewski and a Prospect. If the transaction does not actually occur, or if payment from a Sale is not actually received by Mark Struczewski, You will not be paid a Referral Fee on the transaction. If a referral does not link or attach to Your Partner account within 30 days from such referral’s subscribing to Mark Struczewski’s services, such referral will not be deemed Your Sold Account and You will not be entitled to any Referral Fees from such referral. In order for an account to be linked to your Partner account, a referral must either use your affiliate link directly or reach out to [email protected] Struczewski.com within those first 30 days requesting to be linked. If payment for a Sold Account later results in a refund or charge-back, and if a Referral Fee was paid to You for that Sold Account payment, then the applicable Referral Fee will be deducted from any future Referral Fees. If Mark Struczewski determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, in addition to Mark Struczewski’s rights under Section 3.1, no Referral Fees will be paid to You for such Sale, or if such violation or fraud is discovered by Mark Struczewski after payment, such amounts shall be deducted from any future Referral Fees. A referral may request at any time to be removed from Your Partner Account and upon such request, You will no longer be entitled to receive any Referral Fees for such referral.
2.2. Partner Representations; Taxes
- Partner hereby represents and warrants to Company that You are engaged in an independent business enterprise, and that You have complied with all business requirements necessary to operate Partner's business, if any, such as licensing, tax and other business operation requirements.
- 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 Fees You receive from Mark Struczewski
2.3. Inventory Loading/Rebates
Partner will not be paid any Referral Fees for payments made on Your own User Account(s). Partner is not permitted to open a Mark Struczewski account under the name of another person or entity, or under a fictitious name. Partner is not permitted to open a Mark Struczewski account under any name merely for the purpose of obtaining Referral Fees or any other compensation, including without limitation incentives or prizes that may be offered from time to time. Partner may not pay for another person’s account. Partner is not permitted to refer itself or any affiliated business. Partner is 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 Mark Struczewski all Referral Fees earned as a result of any such violation.
- Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.
- Fraudulent or other unacceptable behavior by Partner, including breach of this Agreement or any Mark Struczewski Policies, as determined by Mark Struczewski in its sole discretion, may result in one or more of the following actions being taken by Mark Struczewski: (a) termination of Your affiliation with Mark Struczewski in its entirety and termination of all services provided to You; (b) suspension of some or all of Your privileges under the Partner Program; and/or (c) termination of Your Partner account entirely without notice to, or recourse for, You, in which case You shall forfeit all Referral Fees owed to You, either as of the date of termination or thereafter accruing.
- At any time that your Mark Struczewski customer account is cancelled or suspended by either Party, Partner’s participation in the Partner Program shall be automatically terminated and Partner shall no longer be entitled to any further Referral Fees. If Partner later activates a Mark Struczewski customer account, Partner will be entitled to apply for participation in the Partner Program and to earn Referral Fees on any new Sold Accounts. For the purpose of clarity, Partner will forfeit all Referral Fees from its Sold Accounts prior to such termination.
3.2. Results of Termination
- Upon termination of this Agreement: (a) Partner will immediately cease displaying any Mark Struczewski Materials (as defined below) or any Mark Struczewski Trademarks (as defined below) on any website or otherwise; and (b) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, or to receive any payments of Referral Fees under this Agreement, unless otherwise determined by Mark Struczewski in its sole discretion.
- This Section 3.2 and the following Sections will survive any termination or expiration of this Agreement: Section 4.5 (Proprietary Rights of Mark Struczewski), Section 5 (Confidentiality), Section 6 (Disclaimer of Warranty), Section 7 (Limitation of Liability and Indemnification), and Section 8 (General Provisions). In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
4. Intellectual Property Rights
You must plainly display (i.e., not in a link, or in small font) the following disclaimer in any website, social media site, email, and/or other communication or media You choose to use: I am not an employee, agent or representative of Mark Struczewski. Mark Struczewski does not in any way endorse my products or services. I am an independent Mark Struczewski Partner and I receive referral payments from Mark Struczewski in this role. All opinions expressed herein are my own and are not official statements of Mark Struczewski or any party affiliated with Mark Struczewski.
5. Disclaimer of Warranty
The Mark Struczewski Partner Program, and the Mark Struczewski products and services, are provided “as-is”. Mark Struczewski makes no warranties under this Agreement, and Mark Struczewski expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, Mark Struczewski further disclaims all representations and warranties, express or implied, that the Mark Struczewski products and services, the Mark Struczewski Trademarks, or the Mark Struczewski Materials satisfy all of Partner’s requirements and or will be uninterrupted, error-free or free from harmful components.
6. Limitation of Liability and Indemnification
6.1. Limitation of Liability
Mark Struczewski will have no liability with respect to the Mark Struczewski Partner Program, the Mark Struczewski products and services, the Mark Struczewski Trademarks, the Mark Struczewski Materials or Mark Struczewski’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from Mark Struczewski’s products and services, the Mark Struczewski Trademarks, the Mark Struczewski Materials or Partner’s participation or inability to participate in the Mark Struczewski Partner Program, even if Mark Struczewski has been advised of the possibility of such damages. In any event, Mark Struczewski’s liability to Partner under this Agreement for any reason will be limited to the Referral Fees paid to Partner by Mark Struczewski during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The foregoing limitations will apply to the fullest extent permitted by applicable law.
6.2. Partner Indemnification
Partner agrees to indemnify, defend and hold harmless Mark Struczewski and the directors, managers, officers, owners, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Mark Struczewski granted by Partner to any third party; (d) Partner’s breach of any term of this Agreement or the Mark Struczewski Policies (including any documents it incorporates by reference); (e) any third party claim that Partner’s products or services infringes the intellectual property or other rights of a third party; (f) Partner’s taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Partner’s products or services; and (h) Partner’s non-compliance or violation of any applicable laws, rules or regulations, including the FTC guidelines.
6.3. Notice of Indemnification
In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Partner with written notice of any claim that the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
7. General provisions
7.1. Force Majeure
Mark Struczewski will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control including acts of God, labor disputes or other industrial disturbances, pandemics, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
7.2. Independent Contractors
The Parties to this Agreement are independent contractors. Neither Party is an agent, employee, representative or related entity of the other Party. Neither Mark Struczewski nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.
7.4. No Waiver
The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.
7.5. Entire Agreement
This Agreement, including all Mark Struczewski Policies listed on Mark Struczewski.com, any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Mark Struczewski nor the Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Mark Struczewski will be permitted to assign this Agreement without notice to or consent from Partner. Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without Mark Struczewski’s prior written consent, to be given or withheld in Mark Struczewski’s sole discretion.
7.7. Applicable Laws
This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.
The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Harris County, Texas and appellate courts having jurisdiction of appeals from such courts with respect to any dispute or claim arising out of or in connection with this Agreement.
7.8. Competitive or Similar Materials
Mark Struczewski is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for or by third parties, as well as marketing and distributing materials, products or services that are competitive with Partner’s products or services, provided that Mark Struczewski does not use Partner’s Confidential Information in so doing.
7.9. Modifications to this Agreement
Mark Struczewski may modify this Agreement (including any Mark Struczewski Policies) at any time by posting a revised version on the Mark Struczewski website or by otherwise notifying Partner in accordance with Section 8.4. By continuing to participate in the Partner Program after the effective date of any modifications to this Agreement, Partner agrees to be bound by the modified terms. It is Your responsibility to check the Mark Struczewski website regularly for modifications to this Agreement. We last modified this Agreement on the date listed on the end of this Agreement.
All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
7.11. Non-exclusive remedies
In the event of any breach or threatened breach by Partner of any provision of this Agreement, in addition to all other rights and remedies available to Mark Struczewski under this Agreement and under applicable law, Mark Struczewski will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security; (b) immediately terminate this Agreement and Partner’s access to the Partner Program; (c) receive a prompt refund of all amounts paid to Partner under this Agreement; and (d) be indemnified for any losses, damages or liability incurred by Mark Struczewski in connection with such violation, in accordance with the provisions of Section 7.
If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.
7.13 Mark Struczewski’s Right to Monitor
Mark Struczewski has the right, but not the obligation, to monitor or investigate any Partner website and Your use of Mark Struczewski’s products or services at any time for compliance with this Agreement or the Mark Struczewski Policies. Our determination of whether a violation of any of these terms has occurred will be final and binding and any action taken with respect to enforcing this Agreement or any other terms, including taking no action at all, will be at our sole discretion.