1. About this Agreement
This Gumroad Affiliate Program Service Agreement ("Agreement") is made by and agreed to between Gumroad, Inc., a Delaware corporation, located at 548 Market St, San Francisco, CA 94104-5401, USA ("Gumroad"), and you ("You" or “Eligible Affiliate”, as further defined below) on the date You commence participation in the Program (the “Effective Date”).
Subject to the terms and conditions herein, the Gumroad Affiliate Program (“Program”) allows You to earn financial compensation (“Payout(s)”) for selling the Digital Good(s) (“Referrer Content”) of certain active Gumroad creators (each, a “Referrer”) to buyers of the general public (“Consumers”).
2. Enrollment in the Program
To begin the enrollment process for the Program, a Referrer will submit information about You via an application available through our affiliate or product portal. Gumroad will evaluate your application in good faith and notify you of our acceptance or rejection of your application. Gumroad reserves the right, in its sole discretion, to accept or reject your application for any or no reason whatsoever. Upon acceptance in to the Program, Gumroad will notify you of such acceptance and ask you to consent to the terms and conditions stated in this Agreement. By consenting to this Agreement (or by participating in the Program in any manner consistent with an Eligible Affiliate), You warrant that You have read and understand this Agreement, and agree to be bound by it.
Participation in the Program is limited to parties that can lawfully enter into and form contracts under applicable law. You represent that you are at least 18 years of age and a resident of the United States of America on the Effective Date of this Agreement.
3. Participation
3.1 Grant of License. Once you have been accepted into the Program, and subject to the terms set forth in this Agreement, You are granted a nonexclusive, royalty-free, fully revocable license for the duration of the term of this Agreement, to display Gumroad’s Links (as defined below) on Gumroad’s web site, your website, or websites of third parties (subject to compliance with the applicable terms and conditions, as the case may be; collectively, the “Sourced Webpage”) solely for the purpose of facilitating Transactions (as defined below) of the Referrer Content to Consumers. “Links” means embedded graphics, icons, text, or HTML code provided by Gumroad that contains a unique hypertext pointer to a URL address to the Referrer Content that allows Gumroad to identify You as the source of a Transaction.
3.2 Change of Terms. Gumroad reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted on the Gumroad site (the “Site”). This Agreement will identify the date of last update. Your participation in or use of the Program following any such change constitutes your agreement to be bound by the modified Agreement In the case of material changes to the Agreement, Gumroad will make reasonable efforts to notify You of the change, such as through sending an email to any address You may have used to register for an account, through a pop-up window on the Site, or other similar mechanism. Material changes to this Agreement will be effective upon the earlier of: (i) your receiving actual notice of such change, or (ii) 30 days from the posting of such change. Disputes arising under this Agreement will be resolved in accordance with the version of the Agreement in place at the time the dispute arose.
4. Payouts
4.1 Payouts. Subject to the terms set forth in this Agreement, Gumroad will make Payouts to You (“Payout”) for each Consumer that purchases the Referrer Content through a Link published on a Sourced Webpage during the duration of the term of this Agreement (each, a “Transaction”). You will only earn Payouts for Transactions (defined below) that occur directly through the Links; Gumroad will not be liable to You for your or Consumers’ failure or inability to use the Links, including to the extent that such failure would result in any reduction of Payouts that would otherwise be paid to You under this Agreement. Gumroad reserves the right to adjust Payouts due to any non-compliance with Gumroad’s policies, non-compliance with applicable regulations, non-compliance with card brand rules, reporting errors, fraudulent actions, or intentional manipulations of the registration process, based on our reasonable discretion. In addition to any remedies available to it, Gumroad reserves the right to withhold Payout(s) if, in Gumroad’s reasonable discretion, any portion thereof was obtained in breach of this Agreement.
4.2 Amount of Payouts. Payouts will be made in accordance with the Payout rate (as determined by the Referrer), which is a percentage of the Retail Price (as that term is defined by the Gumroad User Agreement at www.gumroad.com/terms) (the “Payout Rate”) at the time the Transaction is completed. Any disputes with respect to the Payout Rate shall be settled directly between You and the Referrer. Moreover, You understand and agree that the amount of the Payout Rate corresponding to any Referrer Content purchased through a Transaction that subsequently experiences debits as a result of refunds issued by Gumroad or debits as a result of chargebacks will not be included as part of your Payout.
4.3 Schedule of Payouts. Each Payout exceeding $10.00 USD will be made to You by Gumroad not more than once per two-week period for all sales completed up to a week prior to the payment date (each, an “Affiliate Pay Period”). The Affiliate Pay Period ends at 11:59:59pm Pacific time every other Friday, as determined solely by the date-/timestamp of Gumroad’s system. In most cases, a deposit of a Payout may take up to two (2) business days to reach your bank account; provided, however, that the Payout may be temporarily delayed or withheld by Gumroad in certain cases involving fraud, abuse, misrepresentation, as required by law, as required by banking regulations, as required by card brand rules, or other improprieties. No interest will accrue on deferred, disputed or late Payouts.
4.4 Currency. Gumroad will calculate and render a converted exchange rate in United States Dollar (USD), regardless of the currency of the Referrer Content. All Transactions will settle in USD, and, accordingly, your Payout will be denominated only in USD. Gumroad cannot and does not guarantee the accuracy of the exchange rates displayed due to the fluctuating nature of market rates.
4.5 Applicable Taxes. You agree to pay any and all applicable taxes associated with any Payouts to You. You further acknowledge that Gumroad is under no obligation to assist you in any manner with the aforementioned obligations, unless required by law. Upon request by Gumroad, You agree to promptly complete a W-9 form for tax reporting purposes. Failure to provide Gumroad with an accurate and complete W-9 may result in your suspension or termination from the Program and withholding of your Payout(s).
5. Your Obligations and Terms of Performance
5.1 Placement of Content. You agree not to publish the Links or any other Gumroad Content (as defined below) on any web site or domain in a manner that is illegal or non-compliant with any applicable laws or Gumroad’s policies.
5.2 Compliance with Policies. Transactions may be cancelled or deactivated by Gumroad for violation of its Terms of Service/User Agreement located at www.gumroad.com/terms. Gumroad reserves the right, in its sole and absolute discretion, to remove You from the Program at any time for any or no reason whatsoever.
5.3 No Incentives. You may not provide prospective Consumers with any financial or other incentive to purchase the Referrer Content (including without limitation any virtual currency or property) through the Program. Gumroad reserves the right to exclude any and all traffic generated by any bot, spider, or other automated process, by any human user that creates multiple accounts to simulate multiple unique Consumers, or through the use of any other technique or device designed to provide an inflated or otherwise misleading number of Transactions.
5.4 Accurate Information. You agree to provide Gumroad with accurate information about You and Your promotional methods at Gumroad’s request.
5.5 Illegal Activities. You represent and warrant that You will comply with all applicable laws, including, but not limited to the CAN SPAM Act of 2003 (Public Law 108-187) or any amendment/succession to any applicable legislation.
5.6 Email Notifications. You agree to receive email notifications from Gumroad and/or third party systems that may have rights granted by Gumroad, such as other Gumroad partners and affiliates.
5.7 Fraud and Misrepresentation. Gumroad reserves the right to disqualify You for making fraudulent referrals or violate the spirit of the Program and its terms and conditions, at any time, with or without notice.
6. Proprietary Rights
6.1 Use of Proprietary Rights. You agree that Your use of any Links, Gumroad trademarks, service marks, trade names, URLs, and other content created, distributed, and/or published by Gumroad (collectively, the “Gumroad Content”) is subject to the terms of this Agreement including the limitations of the license granted herein at Section 3.1 and all applicable state and federal laws.
6.2 Linking. The license granted in Section 3.1 is for the limited purposes of promoting Referrer Content sold through Gumroad, subject to any terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, or graphics files contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices.
6.3 Ownership of Intellectual Property. As between You and Gumroad, Gumroad owns all right, title, and interest in and to the Gumroad Content. Accordingly, any use of the Gumroad Content shall inure to the exclusive benefit of Gumroad. All rights not specifically granted to You under this Agreement are expressly reserved by Gumroad.
6.4 Infringement of Proprietary Rights. You agree not to infringe on any proprietary rights (including but not limited to intellectual property rights), including that of Gumroad and other persons or third-party entities. You hereby agree not to adopt or use in any manner any trademarks, service marks, trade names, and/or URLs that are the same or confusingly similar to, or are combined with, those of Gumroad.
6.5 Data Rights and Ownership. You understand that all Consumer information obtained through the Transactions and any or all reports, datasets, results, and/or information created, compiled, analyzed and/or derived by Gumroad from such data is the sole and exclusive property of Gumroad and is considered Gumroad’s Confidential Information, as defined in this Agreement.
7. Confidential Information
7.1 “Confidential Information” shall mean any and all nonpublic information that Gumroad designates as confidential, or which, under the circumstances of disclosure ought to be treated as confidential. “Confidential Information” includes, without limitation, trade secrets, proprietary information, techniques, algorithms, and software programs or information related to the current, future and proposed products and services, information concerning research, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, business policies or practices, sales and merchandising, and marketing plans and information.
7.2 Use and Disclosure of Confidential Information. You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purpose of this Agreement. Except as otherwise provided in this Agreement, you may not, without our prior written consent, at any time, during or after the term of this Agreement, directly or indirectly, divulge or disclose Confidential Information for any purpose or use Confidential Information for its own benefit or for the purposes or benefit of any other person. You agree to hold all Confidential Information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose Confidential Information only to members of your workforce who have a need to use it for the purposes of this Agreement. You will inform all such recipients of the confidential nature of Confidential Information and will instruct them to deal with Confidential Information in accordance with the terms of this Agreement. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention.
8. Term and Termination
8.1 Term. This Agreement shall commence on our acceptance your application to the Program and your agreement to the terms of this Agreement.
8.2 Termination. Either Party may immediately terminate this Agreement with or without cause, upon providing written notice to the other party.
8.3 Post-Termination. Upon termination of this Agreement, any outstanding Payout You are entitled to will be paid no later than 60 days from the termination date. You agree to immediately remove all Links and the Gumroad Content; provided, however, that in the event you do not remove all Links and the Gumroad Content, no Payouts shall be owed with respect to Consumers who complete Transactions after the date of termination. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement, including but not limited to Confidentiality provisions, shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party’s rights under this Agreement that accrued prior to termination.
8.4 Survival. The following Sections shall survive any termination of this Ageement: 1, and 4 through 11.
9. Representations and Warranties
9.1 NO WARRANTIES. ACCESS TO THE SITE, SERVICE, OR PROGRAM AND THE INFORMATION CONTAINED ON THE SITE, SERVICE, OR PROGRAM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SITE, SERVICE, OR PROGRAM OR THE INFORMATION IN THE SITE, SERVICE, OR PROGRAM, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL GUMROAD BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF GUMROAD HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. GUMROAD DISCLAIMS ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR OTHER CAUSES THAT MAKE THE SITE, SERVICE, OR PROGRAM UNAVAILABLE.
9.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, GUMROAD’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE PAYOUT ACTUALLY PAID TO YOU UNDER THIS AGREEMENT FOR THE THREE (3) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.
10. Indemnification
You agree to defend, indemnify, and hold Gumroad harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed or sustained by third parties caused by or arising directly or indirectly from any breach by You of this Agreement or any act or omission by You pursuant to the terms of this Agreement.
11. Miscellaneous
11.1 No Profit Sharing. The parties to this Agreement hereby agree that any profit(s) or benefit(s) earned by either party, whether monetary and/or of monetary value, will not be allocated, distributed, or shared with the other party in any way.
11.2 Independent Relationship. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties in any way.
11.3 Assignment. You may not transfer, assign or delegate any of its rights or obligations under this Agreement, in whole or in part, whether voluntarily or by operation of law without the prior written consent of Gumroad. Any purported transfer, assignment, or delegation by You without such prior written consent shall be null and void. Gumroad shall be permitted to transfer or assign this Agreement in connection with a merger, sale, reorganization, reincorporation, or acquisition of all or substantially all of its assets Subject to the foregoing, this Agreement shall bind and inure to the benefit of each party’s successors and permitted assigns.
11.4 Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. The parties hereby expressly consent to (i) personal jurisdiction of and venue in the state or federal courts located in and serving San Francisco County, California, and (ii) to service of process being effected upon them by registered mail sent to the addresses set forth in the beginning of this Agreement. Each party waives a jury trial in any matter arising out of or relating to this Agreement.
11.5 Notices. All notices, reports, requests, approvals and other communications required or permitted under this Agreement must be in writing and shall be sent to the receiving party’s initial address set forth in the first paragraph of this Agreement or to such other address that the receiving party may have provided for purpose of notice by notice as provided in this section.
11.6 Force Majeure. The obligations of the parties under this Agreement shall be suspended to the extent a party is hindered or prevented from complying therewith because of labor disturbances (including strikes or lockouts), war, terrorist attack, acts of God, earthquakes, fires, storms, accidents, governmental regulations, failure of vendors or suppliers or any other cause whatsoever beyond a party’s control. For so long as such circumstances prevail, the party whose performance is delayed or hindered shall continue to use all commercially reasonable efforts to recommence performance without delay.
11.7 No Bias. This Agreement shall be interpreted as written and negotiated jointly by the parties.
11.8 Severability. If any part of this Agreement is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force.
11.9 Entire Agreement. This Agreement, including all Exhibits hereto, and the agreements referenced herein, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. This Agreement may be amended or modified only by a writing that is signed by duly authorized representatives of both parties. No term or provision of this Agreement will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by a duly authorized representative on behalf of the party against whom the waiver is asserted.
