AFFILIATE REFERRAL TERMS (“TERMS“)
EARNEST INC. (“EARNEST“) OPERATES THE WEBSITE AT [WWW.EARNEST.COM] (THE “SITE“) AND PROVIDES THE REFERRAL PROMOTION AND FUNCTIONALITY MADE AVAILABLE ON OR THROUGH THE SITE (“PROMOTION“). BY USING THE SITE AND CHECKING THE BOX INDICATING YOUR ACCEPTNCE OF EARNEST’S REFERRAL TERMS, YOU (“YOU”) AGREE TO THESE TERMS.
1. DEFINED TERMS
- 1.1. “Application” means an application for Earnest Products that is completed and submitted by Referred Customer.
- 1.2. “Customer Cookie” means the cookie attached by Earnest to Your Customers upon clicking Earnest Offer Link and landing within Earnest.com. The Customer Cookie persists above all other non-party channels, with the exception of referrals from existing clients, for a period of 60 days.
- 1.3. “Earnest Offer Link” a unique link provided to You for the purposes of tagging Referred Customers with a Customer Cookie.
- 1.4. “Earnest Products” means the products for which You intend to refer potential Your Customers to Earnest.
- 1.5. “Earnest Website” means www.earnest.com and any related landing pages or successor sites operated in connection with Earnest’s or its affiliates’ business(es).
- 1.6. “Effective Date” means the date on which You agreed to these Terms by clicking the “Submit” button.
- 1.7. “Funded Loan” means a loan to a Referred Customer pursuant to an Application that has been approved and funded.
- 1.8. “Marks” means all trade names, domain names, trademarks, service marks, logos and other distinctive brand features of a party.
- 1.9. “Promotional Materials” mean the materials, which may include text, images, audiovisual materials, scripts, logos, and the like, that relate in any way to Earnest, the Earnest Products or the Promotion.
- 1.10. “Promotion” means the offer by Earnest to provide Earnest Products to Your Customers, subject to: (a) these Terms and (b) Earnest’s acceptance and approval in its sole discretion of an Application.
- 1.11. “Referred Customer” means Your Customer that visited the Earnest Website through the Earnest Offer Link, in connection with which the Customer Cookie persists as the last touch before Application submission.
- 1.12. “Your Customer” means an individual who visits Your Website.
- 1.13. “Your Website” means any website, related landing pages or successor sites operated in connection with Your business, including any marketing efforts (via email, call center, mobile applications, or any other medium) related to Your Website [and includes any SNS Account].
- 2.1. You may not use the Promotion, or accept these Terms, if (a) You are not of legal age to form a binding contract with Earnest; (b) You are prohibited by law or contract from receiving or using the Promotion; or (c) You are a resident of Michigan.
- 2.2. If You are entering into these Terms on behalf of a company or other legal entity, You represent that: (a) You have full power and authority to bind such entity to these Terms, in which case “You” or “Your” will refer to such entity and its entry into these Terms does not violate any other agreement, understanding or arrangement by which You are bound; (b) performance of Your obligations under these Terms shall at all times comply with all applicable law; and (c) You have acquired and shall maintain throughout the Term all rights and licenses necessary in connection with the performance of Your obligations hereunder.
- 2.3. You agree that You will not: (a) permit any third party other than Your Customers to access and/or participate in the Promotion; (b) rent, lease, loan, or sell access to the Promotion to any third party other than Your Customers; (c) interfere with, disrupt, alter, translate, or modify the Promotion or any part thereof, or create an undue burden on the networks or services connected to the Promotion, including any external websites; (d) reverse engineer or access the Promotion in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Promotion, or (iii) copy any ideas, features, functions or graphics of the Promotion; (e) without Earnest’s express written permission, introduce software or automated agents or scripts to the Promotion; (f) perform or publish any performance or benchmark tests or analyses relating to the Promotion or the use thereof; (g) bid on branded keywords such as “Earnest”, “Earnest Inc.” “Meet Earnest” and other related and derivative terms in search engines and other advertising platforms; or (h) cover or obscure any page or part of the Promotion via HTML/CSS, scripting, or any other means, if any. No express or implied license or right of any kind is granted to You regarding the Promotion or any part thereof. In addition, You agree not to use, or encourage or permit others to use, the Site or Promotion to engage in criminal activity of any kind.
Earnest may change these Terms and the terms of any Promotion from time to time at its sole discretion. Should Earnest make any substantial changes to these Terms, Earnest will notify You by posting notice of the change on the Site. Any material changes to these Terms will be effective immediately for any and all subsequent Referred Customers but will not affect any Referred Customer existing prior to the date of such notice. Your continued use of the Site or the Promotion constitutes Your acceptance of any such changes. Please regularly check the Site to view the then-current Terms. If You object to the revision, Your sole and exclusive remedy will be to cease use of the Promotion for all future Referred Customers.
By completing our registration form You agree to enroll in Earnest’s Affiliate Referral Program. You will: (a) provide true, accurate, current and complete information about Yourself as prompted by our registration form (including ACH information and a valid email address) when registering for the Promotion; (b) be responsible for the confidentiality and use of credentials; (c) not share, transfer or resell Your credentials or use of or access to the Promotion to any third party; and (d) keep all information You provide Earnest up to date, true, accurate, current and complete. You agree not to register using a false identity or information, or on behalf of someone other than Yourself. You agree that You will not have multiple registrations at any given time. You agree not to register for or use the Promotion if You have been previously removed by Earnest, or if You have been previously banned from the Promotion. Earnest reserves the right to terminate any registration which Earnest reasonably determines may have been used by an unauthorized third party. Notwithstanding anything to the contrary herein, You acknowledge and agree that You will have no ownership or other property interest in Your registration, and You further acknowledge and agree that all rights in and to Your registration are and will forever be owned by and inure to the benefit of Earnest.
5. IP OWNERSHIP.
TThe Promotion and any of Earnest’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to You by Earnest in providing the Promotion and as well as any intellectual property rights therein (the “Earnest Technology“) is the exclusive property of Earnest or its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to You regarding the Promotion or the Earnest Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Earnest Technology. All rights not expressly granted to You are reserved to Earnest. Ownership of all work product, developments, inventions, technology or materials provided by Earnest under these Terms will be solely owned by Earnest. Earnest, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by You to Earnest in connection with the Promotion (all such comments and suggestions, collectively, “Feedback“). You hereby grant Earnest a worldwide, non- exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Earnest products and services.
You agree not to solicit applications for the Promotion. You also agree not to compensate, or accept any compensation from, Your Customers or anyone You refer to Earnest in connection with the Promotion. You further agree that Your activities will be limited to informing Your Customers about Earnest Products so that they may independently decide whether or not to apply. You may not collect information from Your Customers for the sole purpose of completing a loan application for or assisting with filling out a loan application.
You must comply with all applicable laws and regulations, including anti- spam laws. Any distribution of an Earnest Offer Link, including by email or social media, must be done in a personal manner and must be in a form approved by Earnest in advance. Bulk email distribution and any use of automated devices or third party services is prohibited. Program links should only be sent to Your Customers. You may not purchase internet search terms or publicly advertise Earnest’s student loan, personal loan products, or name in any fashion. Further, any distribution of an Earnest Offer Link that could constitute unsolicited commercial email or “spam,” any content which impersonates or implies an affiliation with or endorsement by Earnest or any Earnest subsidiary, or any actions which otherwise violate any conditions imposed by Earnest, are prohibited and will be grounds for immediate termination.
- 8.1. General. You agree to make the Promotion accessible through the Your Website and to provide Promotional Materials that describe the Promotion to Your Customers. You agree that only Your Customers who click through a link or otherwise affirmatively act in order to be referred to the Earnest Website shall be forwarded to the Earnest Website. You agree not to impose any fees or charges on Your Customers for access to the Promotion.
- 8.2. No Obligation. Earnest may, in its sole discretion, accept Applications from Referred Customers. You acknowledge that these Terms place no obligation on Earnest to approve Applications referred by You. Application approvals will be determined solely through Earnest’s existing approval process at the time the Application is processed and Earnest shall have no liability to You or any applicant in the event that any Application is denied.
- 8.3. Attribution Logic. Earnest may, in its sole discretion modify the attribution logic for Earnest Products, including but not limited to the definition(s) of Referred Customer, Customer Cookie and Application.
- 8.4. Promotional Materials. You agree to use the Promotional Materials solely for the purposes of these Terms and only after the Promotional Materials and their presentation on Your Website have been reviewed and approved in writing by Earnest. In particular, You agree not to
- modify, alter, adapt or create derivative works based on the Promotional Materials
- position Earnest’s headline rates as a personalized rate offer
- refer to Earnest’s rate estimate as a pre-approval or pre-qualification
- make updates to state eligibility and headline rates as You hear back from Earnest
- associate Promotional Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Earnest’s sole discretion.
Earnest may terminate your use of the Promotion and/or the Promotional Materials at any time in its sole discretion.
9. CUSTOMER PRIVACY AND CONFIDENTIALITY OF INFORMATION.
- 9.2. Confidential Information. Each party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other party’s proprietary business procedures, products, services, operations, marketing materials, fees, policies or plans of the other party that is received or obtained during the negotiation or performance of these Terms, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information“).
- 9.3. Use of Confidential Information. For as long as Confidential Information is in possession of a party, such party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information, other than by or to its employees or agents who are directly involved in negotiating or performing these Terms. Such employees or agents shall be apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, except as required by law or by a supervising regulatory agency of a receiving party; provided, that receiving party shall (a) to the extent permitted by law, promptly notify disclosing party of such required disclosure, (b) reasonably cooperate with disclosing party to seek confidential treatment of any information that it is required to disclose and (c) only disclose such portion of the Confidential Information that it is legally required, in the opinion of counsel, to disclose. Any Confidential Information disclosed pursuant to the foregoing sentence shall continue to be deemed Confidential Information hereunder. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The parties shall use Confidential Information only as necessary to perform these Terms.
- 9.4. Return of Information. Upon the termination or expiration of these Terms, the receiving party shall promptly return all Confidential Information received in connection with the transaction, or shall promptly destroy any materials containing such information (and any copies, extracts, and summaries thereof) and shall provide the disclosing party with written confirmation of such return or destruction upon request. Notwithstanding the foregoing, the receiving party shall not be required to destroy any automated archival backup of such Confidential Information to the extent (a) such destruction is not reasonably practicable or (b) as required by applicable law or regulation. Each party shall be entitled to all remedies available at law or equity, including injunctive relief, to enforce the provisions of this Section 10. The provisions of this Section 10.4 shall survive termination of these Terms.
10. CONTENT AND TRADEMARK LICENSES.
- 10.1. Trademark License by Earnest. Subject to the terms and conditions of these Terms, Earnest hereby grants You a royalty-free, non- exclusive, non-transferable, non-sublicenseable license during the Term to use Earnest’s Marks solely to perform activities and obligations contemplated under these Terms. Earnest grants You no rights in or to any of its trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. You expressly acknowledge Earnest’s sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. You agree further to take such additional actions, at Earnest’s expense, as Earnest deems reasonably necessary to establish and/or preserve Earnest’s exclusive rights in and to its Marks. You agree not to form any combination marks with Earnest’s Marks, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to Earnest’s trademarks. All uses by You of Earnest’s Marks shall inure to the benefit of, and be on behalf of, Earnest. Upon termination of these Terms, You shall immediately cease to use any Promotional Materials, information, names, or Earnest Marks and shall remove any Earnest Marks from items and locations under its control.
- 10.2. Trademark License by You. Subject to the terms and conditions of these Terms, You hereby grant Earnest a royalty-free, non-exclusive, non- transferable, non-sublicenseable license during the Term to use Your Marks solely to perform activities and obligations contemplated under these Terms. You grant Earnest no rights in or to any of its trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. Earnest expressly acknowledges Your sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. Earnest agrees further to take such additional actions, at Your expense, as You deems reasonably necessary to establish and/or preserve Your exclusive rights in and to its Marks. Earnest agrees not to form any combination marks with Your Marks, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to Your trademarks. All uses by Earnest of Your Marks shall inure to the benefit of, and be on behalf of, You. Upon termination of these Terms, Earnest shall immediately cease to use any You Marks and shall remove any You Marks from items and locations under its control.
- 10.3. Reservation of Rights. Each party shall continue to own all rights, title and interest in and to its patents, know-how, trade secrets, software, trademarks and all other intellectual property, subject only to the license rights expressly granted herein.
11. TERM AND RENEWAL.
These Terms will become effective as of the Effective Date and remain effective unless and until either party terminates these Terms at any time, with or without cause (the “Term“). The termination of these Terms shall not terminate those obligations that are expressly indicated to survive termination. From and following the date of termination of these Terms, Your rights under these Terms shall terminate, and You shall not be entitled to receive any Referral Fees or any other payments under these Terms other than those earned or accrued prior to termination of these Terms.
Earnest will pay You and/or Your Customers a Referral Fee for each Funded Loan. The amount of each such Referral Fee will be provided to You once You have registered. You will be notified of any changes to the Referral Fee by email to the email address You provided when You registered. Earnest will have sole discretion in making any changes to Referral Fees, and the changes will be effective immediately.
13. BILLING AND PAYMENT.
Based on the Monthly Reports provided by Earnest, You will render monthly invoices detailing the aggregate Referral Fee payable for the past calendar month to You, and Earnest shall make payment of the fees shown to be due thereon, within thirty (30) days following the date on which each such invoice is received. Notwithstanding the foregoing, Earnest shall not be required to pay any amount reasonably in dispute, provided that Earnest promptly notifies You in writing of the amount in dispute and the reasonable basis therefor. You agree to cooperate with Earnest so that Earnest may investigate and resolve any dispute in a timely and reasonable manner.
14. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE EARNEST WEBSITE IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
15. INDEMNIFICATION. You will indemnify, defend and hold Earnest and its subsidiaries, affiliates, officers and employees (“Earnest Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Earnest Indemnified Parties arising from any of the following: (a) a breach of these Terms by You; (b) the negligence or willful misconduct of You or Your employees, agents or contractors; or (c) a failure by You or Your employees, agents, contractors or invitees to comply with applicable laws and regulations.
16. LIMITATION ON LIABILITY. Neither Earnest nor any officer, employee, director or any other representative of Earnest shall be liable towards You or towards any third party, under or in connection with these Terms or their termination, in contract, tort or otherwise for (a) any economic loss (including loss of revenues, profits, contracts, business or anticipated savings) or (b) any loss of goodwill or reputation. Such losses include, without limitation, any special, indirect, incidental, statutory, punitive or consequential losses or damages as well as any losses or damages caused by interruption of operations. Notwithstanding any other circumstances or understandings surrounding any relations between the parties, Earnest’s entire liability to You under these Terms shall not exceed $500 US for any and all claims for damages of any kind made by You under these Terms, and by entering these Terms You recognizes the limitations herein on Earnest’s liability.
- 17.1. Public Statements. Neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party.
- 17.2. Governing Law. The parties agree that these Terms shall be governed by and construed in accordance with the laws of the State of California without regard to any conflict of law provisions. Any dispute arising under these Terms will be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Promotion, Inc. (“JAMS”) by a single arbitrator appointed in accordance with such Rules. The arbitration will take place in San Francisco, California, USA, in the English language and the arbitral decision may be enforced in any court. The parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California.
- 17.3. Independent Contractors. The parties are acting as independent contractors to each other under these Terms, and nothing contained in these Terms shall create or suggest any affiliation, association, partnership, agency or joint venture between the parties. Neither party shall represent itself or act as the associate, partner, agent or joint venturer of the other party in any way whatsoever. Neither party shall have the authority to bind or commit the other party for any purpose and will not hold themselves out as having the authority to do so.
- 17.4. Assignment. Earnest may assign these Terms at any time. You may not assign any right or any obligation under these Terms without the prior written consent of Earnest, which shall not be unreasonably withheld. Subject to the foregoing, these Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- 17.5. Waiver. No waiver by either party or any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
- 17.6. Severability. If any provision of these Terms shall be found by a court of competent jurisdiction to be invalid or unenforceable, such finding shall not affect the validity or enforceability of these Terms as a whole or of any other provision of these Terms.
17.7. Notices. All notices required or permitted under these Terms must be in writing and shall be deemed effectively given: (a) upon delivery, when delivered personally against receipt therefor; (b) upon delivery when sent by certified mail, postage prepaid and return receipt requested; (c) upon transmission, when transmitted by email, facsimile, or other electronic transmission method, provided that receipt is confirmed; or (d) upon delivery, when sent by nationally recognized overnight delivery service. Any such notice shall be sent to whom notice is intended to be given at its address as shown below:
Earnest: 1455 Market Street, 18th Floor, San Francisco, CA 94103
ATTN: General Counsel
You: To the email or address You specified when You registered.
17.8. Force Majeure. Neither party shall be liable to the other for any default or delay in performance of any of its obligations under these Terms to the extent that such default or delay is caused, directly or indirectly, by an event beyond such party’s reasonable control, including without limitation, fire, flood, earthquake or other acts of God; wars, rebellions or revolution; acts of terrorism; riots or civil disorders; accidents or unavoidable casualties; interruptions in transportation, communications or power facilities; or changes in law, treaties, rulings, regulations, decisions or requirements of any governmental authority.