Affiliate Terms and ConditionsThese terms and conditions (the “Agreement”) are a legal and binding agreement between you (“Affiliate”) and Offbeat1, Inc., including its subsidiaries, (“Offbeat1”) and govern Your participation and involvement in the Offbeat1 affiliate program (“Program”). By applying to the Program You are confirming that You have read the Agreement and are consenting to be bound by the terms and conditions contained within the Agreement. Affiliate’s acceptance into the Program is the Effective Date of this Agreement. Advertising CreativesAdvertising Creatives are banners or text links that link exclusively to the Offbeat1 website. Advertising Creatives can be created by either Offbeat1 or Affiliate. Affiliate will send its Advertising Creatives to Offbeat1 and Offbeat1 will upload all Advertising Creatives to the ShareASale account. Both parties will have access to the Advertising Creatives once uploaded.Licenses. 1.Subject to the terms of this Agreement, Offbeat1 grants to Affiliate a limited, revocable, non-exclusive, and non-transferrable license to use Offbeat1’s Advertising Creatives for the purpose of this Agreement.2.Subject to the terms of this Agreement, Offbeat1 also grants to Affiliate a limited, revocable, non-exclusive, and non-transferrable license to use Offbeat1’s Offbeat1 name, trademarks, service marks, and logos to create Affiliate’s Advertising Creatives. Affiliate may not create Advertising Creatives for the purpose of this Agreement that do not include Offbeat1 name, trademarks, service marks, or logos. Affiliate represents and warrants that it owns, controls, or otherwise has the right to utilize all content in its Advertising CreativesAffiliate agrees to display and/or include Advertising Creatives on its website(s) or in its newsletters within 30 days of the Effective Date.1.Advertising Creatives shall not be misleading, disparaging, infringing, or in any way illegal, shall not display images, texts, graphics, links, or other content of a pornographic nature, and shall not in any way promote violence, bigotry, hatred, or illegal activities. 2.Placement, Maintenance and Monitoring of Advertising Creatives. 3.Affiliate can use their own Advertising Creatives to market and advertise the Offbeat1 products. 4.Affiliate may place Advertising Creatives on its website where it deems fit. However, Offbeat1 may request placement of Advertising Creatives be changed, and Affiliate shall comply with any reasonable requests by Offbeat1.Offbeat1 may, in its discretion, monitor the content on Affiliate's website, including but not limited to the use of Advertising Creatives, to ensure that Affiliate's website complies with the terms of this Agreement. Offbeat1 will notify Affiliate of any reasonable changes that Offbeat1, in its discretion, deems Affiliate must make in order to comply with the Agreement and Affiliate shall make said changes within fourteen (14) days of receiving said notice.1.If Offbeat1 updates or otherwise amends any Advertising Creatives, Affiliate shall replace the old Advertising Creatives with the updated and amended Advertising Creatives within twenty-four (24) hours of Affiliate’s receipt of same.2.Affiliate agrees that Offbeat1 will be allowed to place an identifying tag in each Advertising Creative that will identify the origin of a user that arrives to the Offbeat1 website by clicking on said Advertising Creative.Other Types of Advertising Subject to the terms of this Agreement, Affiliate grants to Offbeat1 a limited, revocable, non-exclusive, and non-transferrable license to use Affiliate’s name, trademarks, service marks, and logos for the purpose of advertising, marketing, promoting, or otherwise publicizing the Affiliate’s relationship with Offbeat1 and the Offbeat1 service. Notwithstanding the foregoing, Offbeat1 is not obligated to advertise, market, promote, or otherwise publicize said relationship, and may do so at its sole discretion. If Offbeat1 does advertise, market, promote, or otherwise publicize the relationship, same shall not be misleading, disparaging, infringing, or in any way illegal. 1.Affiliate represents and warrants that it owns or otherwise controls all of the rights to its name, trademarks, services marks, and logos. 2.Affiliate may not issue any public statement(s) regarding its relationship with Offbeat1, including but not limited to the existence of this Agreement, without Offbeat1’s written approval.Search Campaigns 1.Affiliate may run its own pay per click search or display campaigns (“Paid Search Ads”) to link potential buyers (as defined herein) to the Offbeat1 products. Affiliate is prohibited from outbidding any of Offbeat1 Ads. If Affiliate’s Ads are consistently placing above Offbeat1’s Ads, Affiliate shall adjust its bidding so its Ads do not continue to be placed above Offbeat1’s. Offbeat1 may withhold payment of Referral Fees if Affiliate fails to comply with this Section 4(b).Prohibited AdvertisingAffiliate shall not:•engage in spamming;•advertise in any way that conceals or misrepresents Affiliate’s identity, domain name, or return email address;•violate any law, including but not limited to the CAN-SPAM Act and any amendments thereto; or•engage in any other prohibitive or illegal advertising. 2.Offbeat1 will pay a one-time initial fee (“Referral Fee”) for each product that is purchased within the referral period stated in the Program Term of first landing on the Offbeat1 website via an Advertising Creative placed on Affiliate’s website or in Affiliate’s newsletter that has not been returned for a refund within 30 days. 3. Payment of Referral Fees will be made via the ShareASale payment system. Offbeat1 reserves the right to withhold payment for Fraud (as defined below) and violation or breach of this Agreement. Fraud Offbeat1 reserves the right to withhold any and all payments to Affiliate for fraud or belief of fraud. Fraud includes, but is not limited to: (1) use of stolen credit card to made a purchase of Offbeat1 products through an Advertising Creative. Offbeat1 reserves the right to request a full refund from Affiliate if Fraud has been determined on a previously paid Referral Fee(s), and Affiliate shall make said refund within fourteen (14) days of notice from Offbeat1. BreachOffbeat1 will notify Affiliate of any violation or breach, and Affiliate will have thirty days from the date of said notice to rectify the violation or breach. If the violation or breach is not rectified within thirty (30) days, Affiliate forfeits any Referral Fee otherwise earned during said time period. 1.If this Agreement terminates, any Referral Fee due at the time of termination will be paid pursuant to the ShareASale payment system and in compliance with this Section 2(a-c).2.Affiliate is fully and solely responsible for the accuracy and appropriateness of all materials posted on Affiliate's website, and for ensuring that materials posted on Affiliate's website are not defamatory, in violation of copyright laws, or otherwise illegal. Affiliate shall not: (1) display images, texts, graphics, videos, or other content of a pornographic nature (including but not limited to pornographic banners); and (2) promote violence, bigotry, hatred, and illegal activities.Term and termination The Term of this Agreement will begin on the Effective Date and will end when terminated by either party.Offbeat1 may terminate this Agreement at any time, with or without cause, upon 7 days’ written notice of termination. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and Affiliate will immediately cease use of, and remove from Affiliate's website, all Advertising Creatives to the Offbeat1 website as well as all Offbeat1 trademarks, service marks, and logos, and all other materials in connection with this Agreement.Offbeat1 reserves the right, in its sole discretion, to disqualify any Affiliate from continuing its participation in the Program if Offbeat1 finds the Affiliate is tampering or has tampered with the registration process or the operation of the Program, or if the Affiliate breaches or otherwise violates this Agreement.If Offbeat1 determines, in its sole discretion, that the Program is compromised by a virus, bug, robot entries, or other corruption of the administration or security, or that the Program is improperly managed, Offbeat1 may cancel the Program and may provide notice to Affiliate of cancellation.Intellectual PropertyOffbeat1’s intellectual property rights, including trademarks, copyrights, patent rights or applications, trade names and services marks, as well as Offbeat1’s rights in its proprietary materials, remain Offbeat1’s sole property, including but not limited to the rights in and any derivatives of the foregoing. A.Affiliate’s intellectual property rights, including trademarks, copyrights, patent rights or applications, trade names and service marks, as well as Affiliate’s rights in its proprietary materials, remain Affiliate’s sole property, including but not limited to the rights in and any derivatives of the foregoing. Disclaimer of WarrantiesThe Offbeat1 service is provided on an “as is” and an “as available” basis. Offbeat1 does not make, and hereby disclaims, any representations or warranties regarding the Offbeat1 service, the products offered through the Offbeat1 website, or any portion thereof, express, implied, or statutory, including (without limitation) implied warranties of merchantability, fitness for a particular purpose, title, noninfringement of third party rights, or any warranties arising by course of dealing or custom of trade. Offbeat1 makes no representation or warranty that the Offbeat1 service and access to the service will be uninterrupted or error-free, free of viruses, malicious code, or other harmful components, or otherwise secure. Some jurisdictions do not allow the exclusion of certain warranties; accordingly, some of the above exclusions may not apply.Limitation of LiabilityOffbeat1 shall not be liable to Affiliate or any third party for any direct, indirect, incidental, special, exemplary, punitive, or consequential damages, or any other form of damages in any manner arising out of or in connection with this Agreement, regardless of the form of action or the basis of the claim or whether or not Offbeat1 has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion or certain liabilities; accordingly, some of the above limitations and exclusions may not apply.IndemnificationAffiliate agrees to defend, indemnify, and hold Offbeat1 harmless against any losses, expenses, costs, or damages (including, to the extent permitted by law, Offbeat1’s reasonable attorney’s fees, expert fees, and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon, to the maximum extent permitted by applicable law: (a) Affiliate’s breach of, or failure to comply with, the terms and conditions of this Agreement, including Affiliate’s breach of its representations and warranties herein; (b) Affiliate’s infringement or misappropriated of any intellectual property, whether belonging to Offbeat1 or a third party; (c) any gross negligence or willful misconduct of Affiliate or its representatives; or (d) any other claim related to Affiliate’s performance under this Agreement.Offbeat1 agrees to defend, indemnify, and hold Affiliate harmless against any losses, expenses, costs, or damages (including, to the extent permitted by law, Affiliate’s reasonable attorney’s fees, expert fees, and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon, to the maximum extent permitted by applicable law: (a) Offbeat1’s breach of, or failure to comply with, the terms and conditions of this Agreement, including Offbeat1’s breach of its representations and warranties herein; (b) Offbeat1’s infringement or misappropriated of any intellectual property, whether belonging to Affiliate or a third party; (c) any gross negligence or willful misconduct of Offbeat1 or its representatives; or (d) any other claim related to Offbeat1’s performance under this Agreement.ModificationOffbeat1 may modify this Agreement upon 7 days’ notice, in its sole discretion. Offbeat1 will notify Affiliate of any amendments to this Agreement by email through the Program. If any modification is unacceptable to Affiliate, Affiliate shall have the right to terminate this Agreement. If Affiliate clicks to accept the modified Agreement within seven (7) days after receiving notice of the amendment(s) to the Agreement, same will constitute Affiliate's agreement to be bound by changes.Severability In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.Force MajeureNeither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other force majeure event.AssignmentAffiliate may not assign its rights under this Agreement without the prior written consent of Offbeat1, and any attempt by Affiliate to assign its rights shall be void from inception.Governing LawThis Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New York without regard to its conflict of laws rules.
