Affiliate Partner Terms Of Service Agreement
THIS AFFILIATE PROGRAM AGREEMENT (“Agreement”) is entered into by and between Wholster Systems, LLC, a Maryland Limited Liability Company (“Wholster” or “Company”), and the individual or entity agreeing to be bound by this Agreement (“Affiliate”).
BY ACCEPTING THIS AGREEMENT, BY SIGNATURE INDICATING ACCEPTANCE, EXECUTING THIS AGREEMENT, OR BY PARTICIPATING IN THE WHOLSTER AFFILIATE PROGRAM, AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT. AFFILIATE REPRESENTS AND WARRANTS THAT AFFILIATE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND AFFILIATE TO THE TERMS HEREIN.
This Agreement is effective as of the date Affiliate accepts this Agreement (the “Effective Date”).
RECITALS
WHEREAS, Wholster Systems, LLC (“Wholster”) provides software and tools tailored to real estate investors, enabling efficient deal marketing, buyer engagement, and transaction management, along with additional services that enhance the real estate investment process (collectively, the “Services”);
WHEREAS, Affiliate specializes in, among other things, marketing, business development, and promotion of services in the real estate industry;
NOW, THEREFORE, recognizing the shared objective of promoting Wholster’s Services and fostering mutual success, the parties agree to the terms set forth in this Agreement.
1. Wholster Offerings
1.1 Lifetime Wholster Pro Access: Lifetime Wholster Pro Access: Affiliate shall receive free access to one Wholster Pro account for the duration of this Agreement unless terminated for reasons outlined herein. Access shall cease immediately upon termination of the Agreement, unless otherwise agreed upon in writing by Wholster.
1.2 Custom Branded Profile Links: Wholster shall provide Affiliates with personalized, branded profile links, including the Affiliate’s name, or business name, and unique tracking code, to enhance their promotional efforts. Additional customizations may be available upon written agreement with Wholster.
1.3 Exclusive Perks:
- Early access to beta features and product updates, subject to availability.
- Opportunities for podcast interviews and other promotional collaborations based on Wholster’s selection criteria.
- Development priority for feature requests made by the Affiliate, subject to feasibility and alignment with Wholster’s roadmap.
1.4 Skip Tracing Records: Affiliates shall have access to skip tracing services at market rate, currently priced at $0.08 per record. Market rates are subject to change and shall be determined at the time of each order. Wholster will provide Affiliates with notice of any changes to the market rate prior to purchase.
1.5 Revenue Share: Affiliates shall earn a 35% net revenue share, calculated after transaction fees, refunds, and chargebacks, for first-time subscribers who purchase a subscription plan within the contract period using the Affiliate’s unique tracking link. Revenue share does not apply to ad hoc services or resubscriptions by past customers.
Note: Wholster’s subscription plans are currently in development. Affiliates will be notified in writing when subscription plans are launched and eligible for revenue sharing.
1.6 Duration: Wholster’s offerings are valid only during the contract period unless otherwise agreed upon in writing by both parties. Upon termination or expiration of the Agreement, all Affiliate benefits shall immediately cease unless explicitly extended by Wholster in writing.
2. Referrals
2.1 Definition and Promotion:
Affiliate shall (a) actively promote Wholster’s Services to their network and connections, and (b) refer new clients, customers, and contacts to Wholster (collectively referred to as “Referrals”) in accordance with this Agreement.
2.2 Referral Eligibility:
Wholster shall only pay Affiliate a Referral Fee (as defined in Section 3) for Referrals that meet all of the following conditions:
(i) At the time of referral, the Referral is not a current or past Wholster customer. For the purposes of this Agreement, a “past Wholster customer” is defined as any individual or entity that previously subscribed to or created an account on the Wholster platform, regardless of whether the subscription or account was active or canceled at the time of referral.
(ii) The Referral is a brand-new user to the Wholster platform and does not already have an account or user record in Wholster’s system.
(iii) The Referral subscribes to a paid subscription plan within the Wholster app.
(iv) Wholster receives payment from the Referral for the subscription plan.
(v) The Referral utilizes an Affiliate-specific link or code provided by Wholster.
2.3 Company Discretion:
Wholster reserves the right to decline any Referral at its sole discretion. The decision to provide Services or enter into a contractual relationship with any Referral rests entirely with Wholster.
3. Payout Terms
3.1 Payment for Referrals:
Affiliates shall earn a Referral Fee equal to thirty-five percent (35%) of the net revenue collected by Wholster from referred users, calculated as follows:
- Monthly Subscriptions: Affiliates shall receive 35% of the total monthly subscription revenue collected from referred users for the duration of their subscription.
- Annual Subscriptions: Affiliates shall receive 35% of the total annual subscription revenue collected, paid in full upon receipt of payment from the referred user.
Note: Referral Fees are calculated on the net revenue after deducting applicable transaction fees, refunds, and chargebacks. Add-ons, ad hoc services, or non-subscription purchases are excluded from Referral Fee calculations.
In the event that a referred user cancels or receives a refund for an annual subscription, Wholster reserves the right to adjust future Referral Fee payments to the Affiliate to account for the refunded portion of the subscription. The adjustment amount shall be calculated pro-rata based on the remaining term of the subscription. Wholster will notify the Affiliate of the adjustment and apply it to subsequent payout cycles until the full adjustment amount is recovered.
3.2 Monthly Payout Cycles:
Payouts shall be processed on a monthly basis, provided the Affiliate meets the minimum threshold of $500 in accrued commissions. Any unpaid balance below the threshold shall roll over to the next payout cycle.
3.3 Method and Timing of Payment:
Referral Fees shall be paid no later than forty-five (45) days after Wholster collects payment from the referred user. For avoidance of doubt, Referral Fees are only payable if Wholster has received the corresponding subscription payment from the referred user.
3.4 Termination of Payment Obligation:
Wholster’s obligation to pay Referral Fees shall terminate upon the earliest of the following events:
(i) The referred user cancels or terminates their subscription;
(ii) Termination of this Agreement pursuant to Section 5 (Termination); or
(iii) Termination of this Agreement by Wholster for Cause (as defined in Section 5).
3.5 Adjustment of Terms:
Wholster reserves the right to modify the Referral Fee structure at any time upon thirty (30) days’ written notice to the Affiliate. Any changes shall apply to referrals made after the notice period.
4. Affiliate Obligations
4.1 Good Standing Requirements:
To maintain program eligibility, Affiliates must:
- Actively and consistently promote Wholster using approved materials provided by Wholster.
- Follow all branding and promotional guidelines, ensuring materials are used as intended and reflect Wholster’s professional standards.
- Comply with all applicable laws, including but not limited to the Federal Trade Commission’s (FTC) disclosure requirements, data privacy regulations, and intellectual property laws.
- Notify Wholster of any changes to their promotional strategies that may affect compliance with this Agreement.
4.2 Prohibited Activities:
Affiliates may not:
- Promote or endorse competing platforms, products, or services without prior written consent from Wholster.
- Engage in fraudulent, deceptive, or unethical promotional practices, including but not limited to false claims, misleading advertisements, or use of unauthorized links.
- Use spam, unsolicited emails, or other prohibited advertising methods to promote Wholster.
- Use Wholster’s trademarks, logos, or materials in any unauthorized manner, including in domains, social media profiles, or advertisements.
- Share, misuse, or disclose any confidential or proprietary information provided by Wholster.
4.3 Content Standards:
Affiliates must ensure that all promotional content:
- Accurately represents Wholster’s Services without making exaggerated or unsubstantiated claims.
- Maintains a professional and respectful tone in line with Wholster’s branding.
- Includes clear and conspicuous disclosures of the Affiliate’s relationship with Wholster, as required by law.
4.4 Reporting and Monitoring:
- Affiliates may be required to submit promotional materials or activity reports to Wholster for review upon request.
- Wholster reserves the right to monitor Affiliate activities to ensure compliance with this Agreement.
4.5 Confidentiality:
- Definition of Confidential Information: For the purposes of this Agreement, “Confidential Information” includes, but is not limited to, non-public information, materials, or data relating to Wholster’s Services, business operations, marketing strategies, pricing, customer lists, software, and any other information disclosed to the Affiliate that is marked or otherwise identified as confidential.
- Affiliate Obligations: Affiliates shall:
(i) Keep all Confidential Information strictly confidential and not disclose it to any third party without prior written consent from Wholster.
(ii) Use Confidential Information solely for the purpose of promoting Wholster’s Services in accordance with this Agreement.
(iii) Protect Confidential Information with the same degree of care they use to safeguard their own confidential information, but in no event less than reasonable care. - Exclusions: Confidential Information does not include information that:
(i) Is or becomes publicly available without breach of this Agreement.
(ii) Was known to the Affiliate prior to disclosure by Wholster.
(iii) Is independently developed by the Affiliate without reference to Wholster’s Confidential Information. - Survival: The confidentiality obligations under this section shall survive termination or expiration of this Agreement for a period of three (3) years.
- Remedies for Breach: Breach of this section may result in immediate termination of this Agreement and may subject the Affiliate to legal action, including claims for damages and injunctive relief.
5. Term and Termination
5.1 Initial Term:
This Agreement shall commence upon signing and remain in effect for a period of twelve (12) months following the date Wholster first offers subscription services (the “Initial Term”), unless earlier terminated as provided herein. The Initial Term and any Renewal Term(s) shall collectively be referred to as the “Term.”
5.2 Renewal:
The Agreement may be renewed upon mutual agreement, with terms renegotiated at the end of the Initial Term or any subsequent term.
5.3 Termination by Wholster:
Wholster may terminate this Agreement immediately and without prior notice for any of the following reasons:
- Violation of the terms outlined in this Agreement.
- Failure to comply with Federal Trade Commission (FTC) disclosure requirements.
- Actions or behaviors that damage Wholster’s reputation.
- Unauthorized promotion of competing platforms, products, or services.
Upon termination by Wholster, Affiliates shall immediately cease accumulating revenue share. Any remaining balances owed to the Affiliate shall be paid out by Wholster within forty-five (45) days of the termination date.
5.4 Termination by Affiliate:
Affiliate may terminate this Agreement with thirty (30) days’ written notice to Wholster. Upon termination by the Affiliate, Affiliates shall immediately cease accumulating revenue share. Any remaining balances owed to the Affiliate shall be paid out by Wholster within forty-five (45) days of the termination date.
5.5 For Cause or Automatic Termination:
This Agreement may also be terminated under the following conditions:
(i) For Cause: Either party may terminate this Agreement immediately if the other party:
– Becomes insolvent, files for bankruptcy, or has a receiver or trustee appointed for its assets.
– Commits fraud, embezzlement, theft, or is convicted of a felony.
– Breaches any material provision of this Agreement and fails to cure such breach within fifteen (15) days of receiving written notice from the non-breaching party.
(ii) Automatic Termination: This Agreement shall automatically terminate if no Referral maintains an active subscription with Wholster for a period of six (6) consecutive months.
5.6 Post-Termination Obligations:
Upon termination of this Agreement, Affiliates must:
- Cease all promotional activities related to Wholster.
- Remove any branding, links, or materials associated with Wholster from their platforms, unless otherwise agreed upon in writing by both parties.
- Return or destroy any proprietary information provided by Wholster.
5.7 Effect of Termination:
- Wholster shall pay the Affiliate any outstanding commissions for referrals made during the Term, provided the conditions in Section 2.2 are met. Such payments shall be made in accordance with the payout schedule outlined in Section 3.
- Affiliates shall forfeit any unpaid revenue share for referrals that do not meet eligibility criteria or are discovered to have violated the terms of this Agreement.
5.8 Survival:
The following provisions shall survive termination or expiration of this Agreement:
- Section 3 (Payout Terms) with respect to commissions accrued prior to termination.
- Section 4.5 (Confidentiality).
- Any other provisions that, by their nature, are intended to survive termination.
6. Non-Compete
6.1 Restrictions During the Term:
During the term of this Agreement, Affiliates shall not, directly or indirectly, promote, endorse, collaborate with, or provide services to any competing platform, product, or service that offers functionalities or services similar to those provided by Wholster, without prior written approval from Wholster.
6.2 Use of Proprietary Information:
Affiliates shall not use, disclose, or leverage any proprietary or confidential information obtained through this Agreement to develop, promote, market, or participate in any competing platform, product, or service.
6.3 Post-Termination Non-Compete:
For a period of twelve (12) months following the termination or expiration of this Agreement, Affiliates shall not use Wholster’s proprietary information to engage with, support, or promote any competing platform, product, or service. This restriction shall not apply if Wholster provides written consent or if the Affiliate has no access to proprietary or confidential information during the term of this Agreement.
6.4 Non-Solicitation:
During the Term of this Agreement and for a period of twelve (12) months after its termination or expiration, Affiliate shall not, directly or indirectly, on Affiliate’s own behalf or on behalf of others, in any capacity:
(a) Solicit or attempt to solicit the business or patronage of any Wholster customer, client, or Referral for the purpose of promoting a competing platform, product, or service;
(b) Divert, entice, or otherwise take away from Wholster the business or patronage of any customer, client, or Referral, or attempt to do so;
(c) Solicit or induce any customer, client, or Referral of Wholster to terminate, reduce, or modify their relationship with Wholster; or
(d) Solicit, recruit, or induce any employee, contractor, or affiliate of Wholster to terminate their relationship with Wholster or engage with a competing platform, product, or service.
Affiliates are further prohibited from using any proprietary or confidential information obtained through this Agreement to engage in the prohibited activities listed above.
6.5 Consequences of Breach:
Any violation of this non-compete or non-solicitation provision may result in immediate termination of this Agreement and may subject the Affiliate to legal action, including claims for damages and injunctive relief.
7. Independent Contractor Relationship
7.1 Status as Independent Contractor:
Affiliates acknowledge and agree that their relationship with Wholster is that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employer-employee relationship between Wholster and the Affiliate. Affiliates shall have no authority to bind Wholster or make any commitments on behalf of Wholster.
7.2 Responsibility for Taxes and Obligations:
As an independent contractor, Affiliates are solely responsible for the payment of all taxes, including federal, state, and local taxes, arising from the income received under this Agreement. Affiliates shall not be entitled to any benefits provided to Wholster’s employees, including but not limited to health insurance, retirement plans, or paid leave.
7.3 Control of Activities:
Affiliates shall have sole control over the methods, strategies, and manner in which they promote Wholster’s Services, provided such activities comply with the terms of this Agreement. Wholster does not direct or supervise the Affiliate’s activities beyond the scope of this Agreement.
7.4 Limitation of Liability:
Wholster shall not be held liable for any actions, omissions, or misconduct of the Affiliate. Affiliates agree to indemnify and hold Wholster harmless from any claims, damages, or losses arising out of their activities as an independent contractor.
8. Compliance and Reputation Protection
8.1 Legal and Regulatory Compliance:
- Affiliates shall comply with all applicable laws, rules, and regulations, including but not limited to the Federal Trade Commission (FTC) guidelines regarding the disclosure of affiliate relationships.
- Affiliates shall ensure that all promotional materials clearly and conspicuously disclose their affiliate relationship with Wholster, in accordance with applicable laws and regulations.
- Affiliates are responsible for obtaining any necessary permits, licenses, or approvals required for their promotional activities.
8.2 Wholster’s Standards:
- Affiliates shall conduct all promotional activities in a professional, ethical, and lawful manner that aligns with Wholster’s brand values.
- Affiliates are prohibited from using deceptive, misleading, or unethical practices in their promotions.
8.3 Monitoring and Enforcement:
- Wholster reserves the right to monitor Affiliate activities to ensure compliance with this Agreement and applicable laws.
- Affiliates shall promptly address and rectify any compliance issues identified by Wholster, including but not limited to the removal of non-compliant promotional materials or correcting disclosure omissions.
8.4 Reputation Protection:
- Affiliates shall not engage in any activities or behavior that could harm Wholster’s reputation, including but not limited to public statements, social media posts, or interactions with customers that are false, defamatory, or disparaging.
- Affiliates must notify Wholster immediately of any public or legal issues that could impact Wholster’s reputation or the Affiliate’s standing in the Program.
8.5 Right to Terminate:
- Wholster reserves the right to terminate this Agreement immediately if the Affiliate’s actions or behaviors are deemed harmful to Wholster’s reputation or in violation of compliance requirements.
10. Tax and Documentation Requirements
10.1 Tax Reporting:
Affiliates are solely responsible for reporting and paying any applicable federal, state, and local taxes on earnings derived from the Program. Wholster shall not be responsible for withholding, collecting, or remitting any taxes on behalf of the Affiliate.
- Affiliates must comply with all applicable tax laws and regulations in their jurisdiction.
10.2 Documentation Requirements:
- This Agreement shall not be valid or enforceable until the Affiliate submits a completed and accurate W-9 form (or equivalent tax documentation if located outside the United States) to Wholster.
- Affiliates agree to promptly update Wholster with any changes to their tax or documentation status that may affect compliance with applicable laws.
10.3 Indemnification:
- Affiliates agree to indemnify and hold Wholster harmless from any claims, penalties, or liabilities arising out of the Affiliate’s failure to comply with applicable tax laws or provide accurate tax documentation.
11. Governing Law and Dispute Resolution
11. Governing Law and Venue:
This Agreement shall be governed by and construed in accordance with the laws of the State in which Wholster Systems, LLC is headquartered, without regard to its conflict of law principles. Any disputes arising under this Agreement that are not resolved through mediation or arbitration, as outlined below, shall be brought exclusively in the state or federal courts located in Maryland and the parties hereby consent to the jurisdiction of such courts.
11.2 Good-Faith Negotiation:
The parties agree to make a good-faith effort to resolve any disagreement arising out of or in connection with this Agreement through negotiation. Either party may initiate such negotiation by providing written notice of the dispute and a proposed resolution.
11.3 Mediation:
If the parties are unable to resolve the dispute through negotiation within thirty (30) days of written notice, they agree to submit the dispute to mediation. Mediation shall be conducted by a neutral third-party mediator agreed upon by both parties, and the mediation shall take place in [Headquarters City, State] or another mutually agreed-upon location. The costs of mediation shall be split equally between the parties, and each party shall bear its own expenses.
11.4 Arbitration:
If the parties are unable to resolve the dispute through mediation, either party may request that the dispute be resolved by binding arbitration. Any controversy, dispute, or claim arising out of or relating to this Agreement, or any breach thereof, shall be finally resolved by binding arbitration conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall take place in [Headquarters City, State] or another mutually agreed-upon location.
- Confidentiality: Except to the extent required by law, no party, arbitrator, representative, counsel, or witness shall disclose or confirm to any person not present at the arbitration hearings any information about the hearings, including the names of the parties, the nature and amount of the claims, or the award made.
- Arbitrator’s Authority: The arbitrator shall have the authority to award any relief that would have been available in a court of law.
- Costs and Fees: Each party shall bear its own costs and expenses associated with the arbitration, except that the arbitrator’s fees shall be split equally between the parties.
12. Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL WHOLSTER BE LIABLE TO THE AFFILIATE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF WHOLSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WHOLSTER’S TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OF THE CLAIM, SHALL NOT EXCEED THE TOTAL REFERRAL FEES PAID BY WHOLSTER TO THE AFFILIATE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
NOTWITHSTANDING THE FOREGOING, AFFILIATE SHALL REMAIN FULLY LIABLE FOR:
(i) BREACHES OF CONFIDENTIALITY AS OUTLINED IN SECTION 4.5;
(ii) VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS;
(iii) FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE; AND
(iv) VIOLATIONS OF APPLICABLE LAWS, INCLUDING FTC DISCLOSURE REQUIREMENTS.
13. Severability
If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. The invalid, illegal, or unenforceable provision shall be deemed modified to the extent necessary to render it valid, legal, and enforceable, while preserving its original intent. If such modification is not possible, the provision shall be deemed severed from this Agreement, and the remainder of the Agreement shall be interpreted so as to best reflect the original intent of the parties.
14. Waiver
The failure of either party to enforce any provision of this Agreement or to exercise any right or remedy provided under this Agreement shall not be construed as a waiver of such provision, right, or remedy. Any waiver must be expressly made in writing and signed by the waiving party to be effective. A waiver of any specific breach or default shall not constitute a waiver of any subsequent breach or default of the same or a different nature.
15. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. Signatures transmitted electronically or by facsimile shall be deemed valid and binding to the same extent as original signatures.
16. Notice
All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given:
- (a) When delivered personally to the recipient;
- (b) When sent by certified or registered mail, return receipt requested, to the address specified below; or
- (c) When sent by email, provided that a confirmation of receipt is obtained and retained by the sending party.
Notice to Wholster:
Wholster Systems, LLC
1601 Goldilocks Lane
Manchaca, TX 78652
affiliates@wholster.app
Notice to Affiliate:
______________________________
______________________________
______________________________
______________________________
Each party is responsible for keeping its contact information current and accurate. Notices shall be deemed effective on the date of delivery, the date indicated on the return receipt, or the date of confirmed email transmission.
17. Assignment
Neither party may assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party. Any attempted assignment, transfer, or delegation in violation of this provision shall be null and void.
Notwithstanding the foregoing:
- Wholster may assign its rights and obligations under this Agreement without the Affiliate’s consent in connection with a merger, acquisition, reorganization, or sale of all or substantially all of Wholster’s assets.
- This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
18. Non-Exclusivity
Wholster retains the right to enter into agreements similar to this Agreement with any third party, including competitors of the Affiliate.
19. Headings
The section and subsection headings in this Agreement are for convenience and reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.
12. Entire Agreement
This Agreement constitutes the entire understanding between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements, understandings, negotiations, or representations, whether written or oral, related to this Agreement. No amendment, modification, or waiver of any provision of this Agreement shall be valid unless made in writing and signed by both parties.
Affiliate Name: ___________________________
Affiliate Signature: _______________________
Date: ___________________
Wholster Representative: ___________________
Signature: _______________________
Date: ___________________
Last modified January 17, 2025.