Milli
Program Terms
This affiliate marketing program agreement (this “Program Agreement”) is made effective on the date of acceptance to the program (the “Effective Date”), by and between X, Inc., a X corporation (“Company”), and the applicant ( the “Affiliate”).
Affiliate’s participation in the affiliate marketing program (“Affiliate Program”) is subject to each of the terms and conditions contained within this Program Agreement, all parts, and sub-parts of which are specifically incorporated by reference here.
1. Assent & Acceptance
By taking part in Company’s Affiliate Program, Affiliate warrants that Affiliate has read and reviewed this Program Agreement and that Affiliate agrees to be bound by it. If Affiliate does not agree to be bound by this Program Agreement, please leave the ShareASale website (“Website”) and do not submit an application to Company’s Affiliate Program.
Scope of Relationship
Business Conduct. The Affiliate will (a) conduct business in a manner that reflects favorably at all times on the Company and the good name, good will, and reputation of the Company, (b) avoid deceptive, misleading, or unethical practices that might be detrimental to the Company or the public, and (c) not make any false or misleading representations with regard to the Company or its products. Affiliate acknowledges and agrees that to comply with all federal and state laws applicable to its marketing services under this Agreement.
Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. All financial and other obligations associated with each party’s business are the sole responsibility of that party.
2. Participation Restrictions
2.a.Affiliate must be at least 18 (eighteen) years of age to join Company’s Affiliate Program or use this Website. By submitting an application to Company’s Affiliate Program, Affiliate represents and warrants that Affiliate is at least 18 years of age and may legally agree to this Program Agreement. The Company assumes no responsibility or liability for any misrepresentation of Affiliate’s age.
2.b. Healthcare professionals, healthcare entities, companies and/or representatives who are affiliated with a manufacturer, developer, seller or distributor of a healthcare item or service that is payable or reimbursable by any federal or state healthcare program, such as Medicare or Medicaid, are not eligible to participate in the Affiliate program.
Affiliate must certify that he/she has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude Affiliate from complying with the provisions of this Agreement. Affiliate will not enter into any such conflicting agreement during the term of this Agreement.
3. Compliance with Laws
Affiliate must comply with all applicable laws, statutes, ordinances, regulations, and third-party terms in marketing of the Company’s product, including compliance with the Federal Trade Commission Act and guidelines promulgated by the Federal Trade Commission, the Federal Food, Drug, and Cosmetic Act and implementing regulations. All marketing claims or content used by Affiliate must be consistent with marketing communications approved by Company. Company is free to terminate any Affiliate from its Affiliate Program at any time or withhold compensation for an Affiliate who fails to comply with all the terms and conditions of this Agreement.
Further, Affiliate agrees not to promote or suggest any use of Company product that is considered off-label or inconsistent with the clearance granted by the U.S. Food and Drug Administration (FDA) for the Company product, or inconsistent with the content approved by the Company. To the extent an Affiliate makes any off-label promotion or promotes the product using unauthorized promotional content, Affiliate shall be solely and exclusively responsible for any damages or claims arising from or related to such unauthorized promotion, Affiliate’s noncompliance with applicable laws, and/or noncompliance with the terms of this Agreement.
4. Enrollment
After receiving Affiliate’s application, Company will review Affiliate and notify Affiliate of Affiliate’s acceptance or rejection into Company’s Affiliate Program. Affiliate will allow up to 1 (one) week for Affiliate’s application to be reviewed. Company reserves the right to reject any application. In the event that Company does not respond to Affiliate’s application within 1 (one) week, such application will be deemed rejected by Company.
5. Compensation
The Website compensation is a percent of net sales for all transactions, according to the commission schedule. Company reserves the right to adjust this rate at any time and may offer custom rates based on performance. For any transaction, net sales will be the gross revenues received by Company in respect of a sale of Company’s products via Affiliate’s channels, less all taxes, tariffs, levies, finance charges, credit card processing fees, shipping and delivery costs and returns incurred by Company in respect of such sale.
6. Payout Information
Payouts will be handled exclusively through the Website. Company reserves the right to change payout information in its sole and exclusive discretion. If this is done, Affiliate will be notified.
7. Affiliate link usage
Affiliate links may only be used on approved Affiliate social media accounts and websites. Affiliate links are expressly prohibited from being used on any brand account sites.
8. Sub-affiliate programs; Non-Assignability
Use of sub-affiliate programs is expressly prohibited.
Affiliate may not assign its rights and obligations under this Agreement without the written consent of Company.
9. Communications
Affiliate covenants that any and all digital and/or social media postings, communications or statements (each a “Communication”) effected by or on behalf of Affiliate hereunder will be effected in a manner that complies with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising — https://ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), federal and state health care laws, the Federal Food, Drug, and Cosmetic Act and implementing regulations, privacy, advertising and consumer protection laws, as well as the rules, regulations and policies of each applicable digital and/or social media platform, including with respect to disclosures necessary to clearly and conspicuously indicate to consumers that Affiliate received consideration in exchange therefor.
Without limiting the generality of the foregoing, each Communication shall be accompanied by (i) a clear and conspicuous disclosure of the paid nature of Affiliate’s relationship with Company or (ii) if the posting is a social media posting, either the disclosure in the foregoing clause (i) or “#ad” or “#Companyadvocate.” Affiliate agrees that all Communications will be approved in writing by Company (email to suffice) prior to public display or distribution and to promptly edit any posts as may be requested by Company. Affiliate shall not modify any Communications approved by the Company without prior written consent by Company.
9.a. Advertising
You do NOT have permission to spend money on ads specifically promoting Milli, especially in search engines and social media. However, if you want to explore paid ads with our company, we are open to collaborating. Please reach out to our affiliate management team. These restrictions include but are not limited to: pay per click, pay per view, pay per impression, media buys, social media marketplaces (Facebook, Instagram), offline print publications, eBay, Craigslist, billboards, radio, tv/cable, YouTube, traffic exchanges and others. No direct linking, no trademark keyword bidding, no trademark plus coupon keyword bidding, no non-trademark keyword bidding. We monitor this account daily for violations.
9.b. Deals and Promotions
YES, you can purchase through your own affiliate links. We encourage you to purchase our products so that you may be able to share and speak to the entire customer experience from a place of genuine authenticity.
When promoting Milli, find all coupon codes through the ShareASale Deals and Coupons Database under the Links Tab. Read our newsletters for tips, ideas and best practices. Talk to the management team. Affiliates are not permitted to use misleading text, images or links that imply any deal that is not expressly authorized through the affiliate channel. The use of exclusive coupon codes by unauthorized affiliates will result in voided transactions. User-submitted coupon codes from other marketing channels such as email are prohibited from use by affiliates. We have the right to void those sales. Expired coupons and deals must be removed or clearly marked as expired immediately.
Only use logos, banners and images provided through the ShareASale interface. Contact the affiliate management team before using any images from the merchant website or social media.
Sub-affiliate transactions without referring URLs are subject to voids. We must know who is promoting our products and where the traffic is coming from. Coupon, loyalty and paid search affiliates are prohibited from using sub-affiliate networks to promote Milli.
We reserve the right to reverse transactions due to order cancellations, duplicate tracking, returns, credit card fraud, disputed charges or violations of this agreement.
10. Confidentiality
“Confidential Information” means each party’s proprietary information, technical data, and trade secrets, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information, that are disclosed to the other party either directly or indirectly in writing, orally, or by drawings or inspection of parts or equipment. Confidential Information does not include information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
Non-use and Non-disclosure. Both parties will not, during or subsequent to the term of this Agreement, use the other party’s Confidential Information for any purpose other than the purposes specified in this Agreement, or disclose the other party’s Confidential Information to any third party. Either party may disclose the other party’s Confidential Information if required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure. Except as otherwise specified in this Agreement, it is understood that Confidential Information will remain the sole property of the disclosing party. Both parties further agree to take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information.
11. Non-Exclusivity
Program Agreement does not create an exclusive relationship between Affiliate and Company. Affiliate is free to work with similar affiliate program providers in any category. This Program Agreement imposes no restrictions on Company to work with any individual or company.
12. Non-Disparagement
The parties agree and understand that each party’s professional reputation is important and should not be impaired by the other party during or after this Program Agreement is completed or terminated, for any reason. Each party understands and agrees not to disparage the professional or personal reputation of the other party, its officers, shareholders, directors, management, business, personnel, employees, or independent contractors. Each party shall not make potentially negative, disparaging, or harmful remarks or comments about the other party, its personnel, employees, managers, executives, students, customers or vendors in any public forum including any written documents, internet sites, online forums, blogs, email, chats, messaging, audio recordings or videotape recordings. Each party understands and agrees that its officers, shareholders, directors, management, business, employees and independent contractors shall not post confidential or negative information, regarding the other party in any public forum or online forum, blogs, or similar publicly accessible online site or printed publication of any nature.
13. Intellectual Property
Affiliate agrees that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company (“Company IP”).
Subject to the limitations listed below, Company hereby grants Affiliate a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access Company’s websites in conjunction with the Affiliate Program and use the Company IP solely and exclusively in conjunction with identifying Company and brand on the Affiliate site to send customers to the Affiliate links. Affiliate may not modify the Company IP in any way and Affiliate is only permitted to use the Company IP if Affiliate is in good standing with Company.
Company may revoke this license at any time and for any reason and if Company finds that Affiliate is using the Company IP in any matter not contemplated by this Program Agreement, Company reserves the right to terminate this Program Agreement.
Other than as provided herein, Affiliate is not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without Company’s express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Affiliate’s unauthorized use of any Company IP shall constitute unlawful infringement and Company reserves all of its rights, including the right to pursue an infringement suit against Affiliate in federal court. Affiliate may be obligated to pay monetary damages or legal fees and costs.
Affiliate hereby provides Company with a non-exclusive license to use Affiliate’s name, trademarks and service marks if applicable and other business intellectual property to advertise Affiliate Program.
If Affiliate, in the course of performing its services hereunder, acquires any goodwill or reputation in any of the trademarks, marks, and trade names (collectively, “Marks”), all such goodwill or reputation will automatically vest in Company when and as, on an ongoing basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Affiliate, and Affiliate agrees to take all such actions necessary to effect such vesting. Affiliate will not contest the validity of any of the Marks or Company's exclusive ownership of them. During the term of this Agreement, Affiliate will not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks, or any word or mark confusingly similar to them in any jurisdiction.
14. Modification and Variation
The Company may, from time to time and at any time, modify this Program Agreement. Affiliate agrees that the Company has the right to modify this Program Agreement or revise anything contained herein. Company might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including Company’s partner programs. Affiliate further agrees that all modifications to this Program Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Program Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Program Agreement.
If Company updates or replaces the terms Company or the Affiliate tool will let Affiliate know via electronic means, which may include an in-app notification or by email. If Affiliate doesn’t agree to the update or replacement, Affiliate can choose to terminate.
15. Acceptable Use
Affiliate agrees not to use the Affiliate Program or Company for any unlawful purpose or any purpose prohibited under this clause. Affiliate agrees not to use the Affiliate Program in any way that could damage Company’s websites, products, services, or its general business.
a. Affiliate further agrees not to use the Affiliate Program:
i. To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
ii. To violate any intellectual property rights of the Company or any third party;
iii. To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
iv. To perpetrate any fraud;
v. To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
vi. To publish or distribute any material that incites violence, hate, or discrimination towards any group;
vii. To unlawfully gather information about others.
16. Reverse Engineering and Security
Affiliate agrees not to undertake any of the following actions:
a. Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of Company website or services;
b. Violate the security of any of Company’s websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
17. Data Loss
The Company does not accept responsibility for the security of Affiliate’s account or content. Affiliate agrees that participation in the Affiliate Program is at Affiliate’s own risk.
18. Service Interruptions
The Company may need to interrupt Affiliate’s access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. Affiliate agrees that Affiliate’s access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
19. Limitation on Liability
The Company is not liable for any damages that may occur to Affiliate as a result of participation in the Affiliate Program, to the fullest extent permitted by law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EACH PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNTS AID BY EITHER PARTY UNDER THIS AGREEMENT.
20. Termination
Company may end this Program Agreement at any time, with or without cause.
Upon the expiration or termination of this Agreement for any reason, Affiliate will immediately stop all activities hereunder, cease using the Marks, and not thereafter use the Marks for any reason.
21. Indemnification
Affiliate agrees to indemnify and hold harmless the Company and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Affiliate or Affiliate’s employees or agents, (ii) any breach by Affiliate or Affiliate’s employees or agents of any of the material terms contained in this Agreement, including Affiliate’s use of any content or communications not approved by Company, or (iii) any failure of Affiliate to comply with all applicable laws, rules and regulations, including, but not limited to those described in Section 3 (Compliance with Laws) and Section 9 (Communications).
22. Arbitration
In the event of any dispute between the parties arises under or relates to this Program Agreement, such dispute shall be settled by arbitration before a single neutral arbitrator in accordance with the rules for commercial arbitration of the American Arbitration Association in effect at the time such arbitration is initiated. The hearing shall be conducted in New York, unless both parties consent to a different location. The decision of the arbitrator shall be final and binding upon all parties. The arbitration process shall be commenced by the initiating party giving written notice to the other of its intention to arbitrate.
Severability. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.
21. Survival
All provisions regarding payment, ownership of works, indemnification, liability and limits thereon, use of materials, non-solicitation, non-disparagement, and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination or expiration of this Program Agreement.
IN WITNESS WHEREOF, the parties have caused this Program Agreement to be executed as of the Effective Date by their respective officers thereunto duly authorized.
Affiliate’s participation in the affiliate marketing program (“Affiliate Program”) is subject to each of the terms and conditions contained within this Program Agreement, all parts, and sub-parts of which are specifically incorporated by reference here.
1. Assent & Acceptance
By taking part in Company’s Affiliate Program, Affiliate warrants that Affiliate has read and reviewed this Program Agreement and that Affiliate agrees to be bound by it. If Affiliate does not agree to be bound by this Program Agreement, please leave the ShareASale website (“Website”) and do not submit an application to Company’s Affiliate Program.
Scope of Relationship
Business Conduct. The Affiliate will (a) conduct business in a manner that reflects favorably at all times on the Company and the good name, good will, and reputation of the Company, (b) avoid deceptive, misleading, or unethical practices that might be detrimental to the Company or the public, and (c) not make any false or misleading representations with regard to the Company or its products. Affiliate acknowledges and agrees that to comply with all federal and state laws applicable to its marketing services under this Agreement.
Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. All financial and other obligations associated with each party’s business are the sole responsibility of that party.
2. Participation Restrictions
2.a.Affiliate must be at least 18 (eighteen) years of age to join Company’s Affiliate Program or use this Website. By submitting an application to Company’s Affiliate Program, Affiliate represents and warrants that Affiliate is at least 18 years of age and may legally agree to this Program Agreement. The Company assumes no responsibility or liability for any misrepresentation of Affiliate’s age.
2.b. Healthcare professionals, healthcare entities, companies and/or representatives who are affiliated with a manufacturer, developer, seller or distributor of a healthcare item or service that is payable or reimbursable by any federal or state healthcare program, such as Medicare or Medicaid, are not eligible to participate in the Affiliate program.
Affiliate must certify that he/she has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude Affiliate from complying with the provisions of this Agreement. Affiliate will not enter into any such conflicting agreement during the term of this Agreement.
3. Compliance with Laws
Affiliate must comply with all applicable laws, statutes, ordinances, regulations, and third-party terms in marketing of the Company’s product, including compliance with the Federal Trade Commission Act and guidelines promulgated by the Federal Trade Commission, the Federal Food, Drug, and Cosmetic Act and implementing regulations. All marketing claims or content used by Affiliate must be consistent with marketing communications approved by Company. Company is free to terminate any Affiliate from its Affiliate Program at any time or withhold compensation for an Affiliate who fails to comply with all the terms and conditions of this Agreement.
Further, Affiliate agrees not to promote or suggest any use of Company product that is considered off-label or inconsistent with the clearance granted by the U.S. Food and Drug Administration (FDA) for the Company product, or inconsistent with the content approved by the Company. To the extent an Affiliate makes any off-label promotion or promotes the product using unauthorized promotional content, Affiliate shall be solely and exclusively responsible for any damages or claims arising from or related to such unauthorized promotion, Affiliate’s noncompliance with applicable laws, and/or noncompliance with the terms of this Agreement.
4. Enrollment
After receiving Affiliate’s application, Company will review Affiliate and notify Affiliate of Affiliate’s acceptance or rejection into Company’s Affiliate Program. Affiliate will allow up to 1 (one) week for Affiliate’s application to be reviewed. Company reserves the right to reject any application. In the event that Company does not respond to Affiliate’s application within 1 (one) week, such application will be deemed rejected by Company.
5. Compensation
The Website compensation is a percent of net sales for all transactions, according to the commission schedule. Company reserves the right to adjust this rate at any time and may offer custom rates based on performance. For any transaction, net sales will be the gross revenues received by Company in respect of a sale of Company’s products via Affiliate’s channels, less all taxes, tariffs, levies, finance charges, credit card processing fees, shipping and delivery costs and returns incurred by Company in respect of such sale.
6. Payout Information
Payouts will be handled exclusively through the Website. Company reserves the right to change payout information in its sole and exclusive discretion. If this is done, Affiliate will be notified.
7. Affiliate link usage
Affiliate links may only be used on approved Affiliate social media accounts and websites. Affiliate links are expressly prohibited from being used on any brand account sites.
8. Sub-affiliate programs; Non-Assignability
Use of sub-affiliate programs is expressly prohibited.
Affiliate may not assign its rights and obligations under this Agreement without the written consent of Company.
9. Communications
Affiliate covenants that any and all digital and/or social media postings, communications or statements (each a “Communication”) effected by or on behalf of Affiliate hereunder will be effected in a manner that complies with applicable laws, rules, regulations and guidelines (including the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising — https://ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), federal and state health care laws, the Federal Food, Drug, and Cosmetic Act and implementing regulations, privacy, advertising and consumer protection laws, as well as the rules, regulations and policies of each applicable digital and/or social media platform, including with respect to disclosures necessary to clearly and conspicuously indicate to consumers that Affiliate received consideration in exchange therefor.
Without limiting the generality of the foregoing, each Communication shall be accompanied by (i) a clear and conspicuous disclosure of the paid nature of Affiliate’s relationship with Company or (ii) if the posting is a social media posting, either the disclosure in the foregoing clause (i) or “#ad” or “#Companyadvocate.” Affiliate agrees that all Communications will be approved in writing by Company (email to suffice) prior to public display or distribution and to promptly edit any posts as may be requested by Company. Affiliate shall not modify any Communications approved by the Company without prior written consent by Company.
9.a. Advertising
You do NOT have permission to spend money on ads specifically promoting Milli, especially in search engines and social media. However, if you want to explore paid ads with our company, we are open to collaborating. Please reach out to our affiliate management team. These restrictions include but are not limited to: pay per click, pay per view, pay per impression, media buys, social media marketplaces (Facebook, Instagram), offline print publications, eBay, Craigslist, billboards, radio, tv/cable, YouTube, traffic exchanges and others. No direct linking, no trademark keyword bidding, no trademark plus coupon keyword bidding, no non-trademark keyword bidding. We monitor this account daily for violations.
9.b. Deals and Promotions
YES, you can purchase through your own affiliate links. We encourage you to purchase our products so that you may be able to share and speak to the entire customer experience from a place of genuine authenticity.
When promoting Milli, find all coupon codes through the ShareASale Deals and Coupons Database under the Links Tab. Read our newsletters for tips, ideas and best practices. Talk to the management team. Affiliates are not permitted to use misleading text, images or links that imply any deal that is not expressly authorized through the affiliate channel. The use of exclusive coupon codes by unauthorized affiliates will result in voided transactions. User-submitted coupon codes from other marketing channels such as email are prohibited from use by affiliates. We have the right to void those sales. Expired coupons and deals must be removed or clearly marked as expired immediately.
Only use logos, banners and images provided through the ShareASale interface. Contact the affiliate management team before using any images from the merchant website or social media.
Sub-affiliate transactions without referring URLs are subject to voids. We must know who is promoting our products and where the traffic is coming from. Coupon, loyalty and paid search affiliates are prohibited from using sub-affiliate networks to promote Milli.
We reserve the right to reverse transactions due to order cancellations, duplicate tracking, returns, credit card fraud, disputed charges or violations of this agreement.
10. Confidentiality
“Confidential Information” means each party’s proprietary information, technical data, and trade secrets, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information, that are disclosed to the other party either directly or indirectly in writing, orally, or by drawings or inspection of parts or equipment. Confidential Information does not include information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
Non-use and Non-disclosure. Both parties will not, during or subsequent to the term of this Agreement, use the other party’s Confidential Information for any purpose other than the purposes specified in this Agreement, or disclose the other party’s Confidential Information to any third party. Either party may disclose the other party’s Confidential Information if required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure. Except as otherwise specified in this Agreement, it is understood that Confidential Information will remain the sole property of the disclosing party. Both parties further agree to take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information.
11. Non-Exclusivity
Program Agreement does not create an exclusive relationship between Affiliate and Company. Affiliate is free to work with similar affiliate program providers in any category. This Program Agreement imposes no restrictions on Company to work with any individual or company.
12. Non-Disparagement
The parties agree and understand that each party’s professional reputation is important and should not be impaired by the other party during or after this Program Agreement is completed or terminated, for any reason. Each party understands and agrees not to disparage the professional or personal reputation of the other party, its officers, shareholders, directors, management, business, personnel, employees, or independent contractors. Each party shall not make potentially negative, disparaging, or harmful remarks or comments about the other party, its personnel, employees, managers, executives, students, customers or vendors in any public forum including any written documents, internet sites, online forums, blogs, email, chats, messaging, audio recordings or videotape recordings. Each party understands and agrees that its officers, shareholders, directors, management, business, employees and independent contractors shall not post confidential or negative information, regarding the other party in any public forum or online forum, blogs, or similar publicly accessible online site or printed publication of any nature.
13. Intellectual Property
Affiliate agrees that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company (“Company IP”).
Subject to the limitations listed below, Company hereby grants Affiliate a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access Company’s websites in conjunction with the Affiliate Program and use the Company IP solely and exclusively in conjunction with identifying Company and brand on the Affiliate site to send customers to the Affiliate links. Affiliate may not modify the Company IP in any way and Affiliate is only permitted to use the Company IP if Affiliate is in good standing with Company.
Company may revoke this license at any time and for any reason and if Company finds that Affiliate is using the Company IP in any matter not contemplated by this Program Agreement, Company reserves the right to terminate this Program Agreement.
Other than as provided herein, Affiliate is not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without Company’s express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Affiliate’s unauthorized use of any Company IP shall constitute unlawful infringement and Company reserves all of its rights, including the right to pursue an infringement suit against Affiliate in federal court. Affiliate may be obligated to pay monetary damages or legal fees and costs.
Affiliate hereby provides Company with a non-exclusive license to use Affiliate’s name, trademarks and service marks if applicable and other business intellectual property to advertise Affiliate Program.
If Affiliate, in the course of performing its services hereunder, acquires any goodwill or reputation in any of the trademarks, marks, and trade names (collectively, “Marks”), all such goodwill or reputation will automatically vest in Company when and as, on an ongoing basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Affiliate, and Affiliate agrees to take all such actions necessary to effect such vesting. Affiliate will not contest the validity of any of the Marks or Company's exclusive ownership of them. During the term of this Agreement, Affiliate will not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks, or any word or mark confusingly similar to them in any jurisdiction.
14. Modification and Variation
The Company may, from time to time and at any time, modify this Program Agreement. Affiliate agrees that the Company has the right to modify this Program Agreement or revise anything contained herein. Company might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including Company’s partner programs. Affiliate further agrees that all modifications to this Program Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Program Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Program Agreement.
If Company updates or replaces the terms Company or the Affiliate tool will let Affiliate know via electronic means, which may include an in-app notification or by email. If Affiliate doesn’t agree to the update or replacement, Affiliate can choose to terminate.
15. Acceptable Use
Affiliate agrees not to use the Affiliate Program or Company for any unlawful purpose or any purpose prohibited under this clause. Affiliate agrees not to use the Affiliate Program in any way that could damage Company’s websites, products, services, or its general business.
a. Affiliate further agrees not to use the Affiliate Program:
i. To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
ii. To violate any intellectual property rights of the Company or any third party;
iii. To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
iv. To perpetrate any fraud;
v. To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
vi. To publish or distribute any material that incites violence, hate, or discrimination towards any group;
vii. To unlawfully gather information about others.
16. Reverse Engineering and Security
Affiliate agrees not to undertake any of the following actions:
a. Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of Company website or services;
b. Violate the security of any of Company’s websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
17. Data Loss
The Company does not accept responsibility for the security of Affiliate’s account or content. Affiliate agrees that participation in the Affiliate Program is at Affiliate’s own risk.
18. Service Interruptions
The Company may need to interrupt Affiliate’s access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. Affiliate agrees that Affiliate’s access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
19. Limitation on Liability
The Company is not liable for any damages that may occur to Affiliate as a result of participation in the Affiliate Program, to the fullest extent permitted by law.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EACH PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNTS AID BY EITHER PARTY UNDER THIS AGREEMENT.
20. Termination
Company may end this Program Agreement at any time, with or without cause.
Upon the expiration or termination of this Agreement for any reason, Affiliate will immediately stop all activities hereunder, cease using the Marks, and not thereafter use the Marks for any reason.
21. Indemnification
Affiliate agrees to indemnify and hold harmless the Company and its directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (i) any negligent, reckless or intentionally wrongful act of Affiliate or Affiliate’s employees or agents, (ii) any breach by Affiliate or Affiliate’s employees or agents of any of the material terms contained in this Agreement, including Affiliate’s use of any content or communications not approved by Company, or (iii) any failure of Affiliate to comply with all applicable laws, rules and regulations, including, but not limited to those described in Section 3 (Compliance with Laws) and Section 9 (Communications).
22. Arbitration
In the event of any dispute between the parties arises under or relates to this Program Agreement, such dispute shall be settled by arbitration before a single neutral arbitrator in accordance with the rules for commercial arbitration of the American Arbitration Association in effect at the time such arbitration is initiated. The hearing shall be conducted in New York, unless both parties consent to a different location. The decision of the arbitrator shall be final and binding upon all parties. The arbitration process shall be commenced by the initiating party giving written notice to the other of its intention to arbitrate.
Severability. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.
21. Survival
All provisions regarding payment, ownership of works, indemnification, liability and limits thereon, use of materials, non-solicitation, non-disparagement, and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination or expiration of this Program Agreement.
IN WITNESS WHEREOF, the parties have caused this Program Agreement to be executed as of the Effective Date by their respective officers thereunto duly authorized.