Altos Planos, Inc.
Program Terms
Marketing Affiliate Program Agreement
Last Modified: December 20, 2022
PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and Altos Planos, Inc. (“Altos Planos,” “we,” “us” or “our”). It describes how we will work together and other aspects of our business relationship, and applies to your participation in our marketing affiliate program (the “Affiliate Program”). You cannot participate in our Affiliate Program unless you agree to these terms.
We periodically update these terms, and may replace these terms entirely if, for example, the Affiliate Program changes, ends or becomes part of another program. If we update or replace the terms, we or the Affiliate Platform (defined below) will let you know via electronic means, which may include an online notification or by email. We encourage you to review this Agreement periodically. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version, and the updated Agreement will become effective and binding on that date. IF YOU DO NOT AGREE TO THE UPDATED OR REPLACEMENT TERMS, YOU MUST END YOUR PARTICIPATION IN THE AFFILIATE PROGRAM AS WE DESCRIBE BELOW.
Definitions
“Affiliate Lead” means an individual customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Platform.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Platform” means the affiliate marketing platform that will be available for your use upon your acceptance into the Affiliate Program.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Affiliate Program” means our marketing affiliate program as described in this Agreement.
“Agreement” means this Marketing Affiliate Program Agreement and all materials referred or linked to in this Marketing Affiliate Program Agreement, including the Program Policies and other information, restrictions, terms and conditions made available in the Affiliate Platform.
“Altos Planos,” “we,” “us” and “our” mean Altos Planos, Inc.
“Altos Planos Affiliate” means a company owned, operated or controlled by Altos Planos.
“Altos Planos Content” includes all information, data, text, messages, sound, music, video, photographs, graphics, images, logos, tasting notes, marketing materials and all other content or materials that we provide to you, to the Affiliate Platform, or otherwise incorporate into the Affiliate Program.
“Altos Planos IP” means all Altos Planos Content; the Mijenta name, label and designs; the Altos Planos name and logos; and all intellectual property, including trademarks, trade dress, copyright, patents and trade secrets, owned, acquired or licensed by Altos Planos.
“Altos Planos Products” means all products, including spirits, marketed or sold by Altos Planos.
“Commission” means the amount agreed to in the Affiliate Platform (or if applicable, in the Program Policies) for each Customer Transaction.
“Customer” means an individual who has purchased Altos Planos Products after being an Affiliate Lead.
“Customer Transaction” means an Altos Planos Product purchase transaction by a Customer that is eligible for Commission pursuant to the Program Policies and ‘Customer Transactions’ section of this Agreement.
“Program Policies” means all the up to date guidelines and policies for the Affiliate Program that we make available to you through the Affiliate Platform, email, hard copy or otherwise.
“You” and “Affiliate” mean the party, other than Altos Planos, entering into this Agreement and participating in the Affiliate Program.
Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, marketing, promotion, sale and use of similar services and products of third parties.
Affiliate Acceptance
You must complete an application to participate in the Affiliate Program, and we will review your application and notify you whether you have been accepted, in our sole discretion, to participate in the Affiliate Program. We may not contact to you to let you know that your application is rejected, but if we do not notify you that you are accepted to participate in the Affiliate Program within 30 days from your application date, your application is deemed rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect until terminated. You will need to complete any enrollment criteria set out in the Program Policies, if applicable, within 30 days of your acceptance, or you will not be able to participate in the Affiliate Program.
You must comply with this Agreement, including applicable Program Policies, at all times.
Customer Transactions
1. Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Platform (or if applicable, in the Program Policies) based on the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission pursuant to the terms described in the Affiliate Platform (including, if applicable, in the Program Policies) for each new Customer who completes a Customer Transaction after clicking on an Affiliate Link made available to you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The Commission is determined by the date of the first Customer Transaction by the Customer after clicking on an Affiliate Lead made available by you, and you will receive one Commission payment for that Customer Transaction only, regardless of any additional or future purchases made by that same customer.
2. Eligibility. To be eligible for Commission, an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, and a Customer Transaction must have occurred. Further, to be eligible for Commission, you must have, prior to the Customer Transaction, (i) expressly agreed to the terms of this Agreement; (ii) completed all steps necessary to create your account in the Affiliate Platform in accordance with our directions; (iii) designated a valid and up-to-date payment method in the Affiliate Platform; (iv) completed all required tax documentation in order for the Affiliate Platform to process payments that may be owed to you; and (v) otherwise complied with all requirements set forth in the Affiliate Platform and this Agreement.
You are not eligible to receive Commission or any other compensation from us if (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Altos Planos Affiliates; (iii) the Customer has paid or will pay any commissions, referral fees or other compensation directly to you; or (iv) the Commission payment is obtained by fraudulent means, by misuse of the Affiliate Link or Affiliate Platform, in breach of this Agreement (including any Program Policies) or by any other means that violate the spirit of the Affiliate Program.
3. Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions accepted by Altos Planos and derived from Affiliate Leads generated by the Affiliate Link that we make available to you, and which are not subsequently voided or cancelled. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination, it is a new potential customer of ours who has not made a purchase of Altos Planos Products prior to the Customer Transaction. If an Affiliate Lead does not complete a Customer Transaction within the time period described on the Affiliate Platform (or if applicable, in the Program Policies), you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
4. Commission Payment and Taxes. We or the Affiliate Platform will determine the currency in which we pay the Commission, as well as the applicable conversion rate. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
Intellectual Property and Other Proprietary Rights
1. Affiliate Trademarks. You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
2. Altos Planos’s Proprietary Rights. No license or right to any Altos Planos IP is granted by this Agreement or your participation in the Affiliate Program except as expressly stated in this Agreement. As between you and us, we retain all rights of any nature in and to the Altos Planos Products and the Altos Planos IP. If you wish to use Altos Planos Content, you must comply with our Brand Guidelines, which we will provide to you.
We encourage all customers, affiliates and partners to comment on Altos Planos Products and provide suggestions for improving them. You agree that all of your comments and suggestions will be non-confidential and that we will own all rights to use and incorporate them into the Altos Planos Products and the Altos Planos IP, without payment to you or any notice or attribution.
In the event we provide any Altos Planos IP to you for use in connection with the Affiliate Program, your license is very narrow and limited and lasts only until this Agreement or your participation in the Affiliate Program is terminated, unless the license is terminated earlier. You must (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program; (iii) comply with our Brand Guidelines; and (iv) immediately comply if we request that you modify or discontinue use. You must not (v) use our trademarks in a misleading or disparaging way; (vi) use our trademarks in a way that implies we endorse, sponsor or approve of your content, services or products; or (vii) use our trademark in violation of applicable law or in connection with an obscene, indecent or unlawful topic or material, as determined in our sole discretion.
Confidentiality
“Confidential Information” means Altos Planos customer and prospect information and all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of confidentiality. The Receiving Party shall (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care; (ii) not use any Confidential Information of the Disclosing Party for any purpose other than complying with its obligations for the Affiliate Program; (iii) not disclose Confidential Information of the Disclosing Party to any third party; and (iv) limit access to Confidential Information of the Disclosing Party as appropriate to maintain strict confidentiality. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any valid law, rule, regulation or legal process.
Term and Termination
1. Term. This Agreement will apply for as long as you participate in the Affiliate Program.
2. Termination. Either you or we may terminate this Agreement and your participation in the Affiliate Program at any time for any reason upon five days written notice to the other party. We may terminate this Agreement and your participation in the Affiliate Program immediately for cause if you breach this Agreement or if we determine that you are acting, or have acted, in a way that has or may have a negative effect on us, our reputation or business, our prospects, our customers, or that or those of any Altos Planos Affiliate, owner, employee, officer, contractor, supplier or representative.
3. Effects of Termination. Termination of this Agreement for any reason other than for cause will not affect your eligibility to receive Commission due and payable prior to the effective date of such termination under the terms of this Agreement, including any Program Policies. Upon termination of this Agreement for cause, our obligation to pay and your right to receive any Commission will terminate upon the effective date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination of this Agreement, you will (i) discontinue all use of, and delete and destroy all copies in your possession of, any Altos Planos IP; and (ii) remove all references to the Affiliate Program and all Affiliate Links from your websites, social media, and other platforms and collateral.
Affiliate Representations and Warranties
You represent and warrant that (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Altos Planos with Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement; (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks; (iv) you are and will remain compliant with all trade, legal and regulatory requirements that may apply to your business, marketing practices or participation in the Affiliate Program, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, the Telephone Consumer Protection Act (TCPA), regulations set out by the Federal Trade Commission, state governments and industry governing bodies, the Texas Deceptive Trade Practices Consumer Protection Act, and by complying with all opt-out, unsubscribe, “do not call” and “do not send” requests in accordance with the law; (v) you will not permit, allow or engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers or the public; (vi) you will accurately provide in the Affiliate Platform all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (vii) you will not purchase or boost content, ads or keywords that could be considered as competing with Altos Planos’s own advertising or that of its distributors, or otherwise violate the PPC Restriction Rules made available to you through the Affiliate Platform; (viii) you will not participate in cookie stuffing or serve pop-ups, or display false or misleading links; (ix) you will not attempt to mask the referring URL information; (x) you will not use your own Affiliate Link to purchase Altos Planos Products; and (xi) you will not use any deceptive or illegal method or mechanisms to deliver leads, including by using fake redirects or other platforms or automation devices such as robots or hidden frames.
Indemnification
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, demand or proceeding (each, an “Action”) brought against us or our owners, officers, directors, employees, agents, licensors or any Altos Planos Affiliate, that is related to or arises out of (i) your participation in the Affiliate Program or use of the Affiliate Platform; (ii) use of the Affiliate Marks or the prospect data you provide; or (iii) your violation of any law, rule or regulation, or breach of this Agreement. You shall not accept any settlement without our written consent that imposes any obligation or restriction on us, requires us to make any admission, or imposes any liability on us not covered by your defense and indemnification obligations.
Disclaimers; Limitations of Liability
1. Disclaimer of Warranties. WE AND THE ALTOS PLANOS AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE ALTOS PLANOS PRODUCTS, ALTOS PLANOS IP, THE AFFILIATE PROGRAM OR THE AFFILIATE PLATFORM FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE ALTOS PLANOS PRODUCTS, ALTOS PLANOS IP AND AFFILIATE PLATFORM ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES OR CONDITIONS, IMPLIED OR OTHERWISE, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
2. Limitation of Liability. IF WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
3. Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE PLATFORM HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS COOKIES DURING THIS PERIOD, ALTOS PLANOS WILL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU IN THE ABSENCE OF SUCH ACTION.
General
1. No Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
2. Applicable Law. This Agreement is governed by the laws of the State of Texas , without regard to any choice of law or conflict of laws provisions. The exclusive venue and jurisdiction of any court action between the parties is in the state and federal courts in Dallas County, Texas.
3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of war, hostility or sabotage; act of God; electrical, internet or telecommunication outage that is not caused by or within the control of the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
4. Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between you and us as a result of this Agreement or your participation in the Affiliate Program.
5. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
6. Notices. Notice will be sent to the contact address set forth below (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Altos Planos: Attn: General Counsel, 14901 Quorum Drive, Suite 150, Dallas, Texas 75254.
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
7. Entire Agreement. This Agreement is the complete and final agreement between us for the Affiliate Program. We reject any additional or different terms proposed by you, including those contained in a purchase order, acceptance or website.
8. Assignment. You shall not assign any rights or delegate any duties under this Agreement, including any assignment or transfer by reason of merger, reorganization, asset sale, change of control or operation of law, without our prior written consent.
9. Sales by Altos Planos. This Agreement in no way limits our right to sell the Altos Planos Products, directly or indirectly, to anyone at any time.
10. Survival. The following sections will survive the termination of this Agreement: “Confidentiality,” “Effects of Termination,” “Indemnification,” “Disclaimers; Limitation of Liability” and “General.”
Last Modified: December 20, 2022
PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and Altos Planos, Inc. (“Altos Planos,” “we,” “us” or “our”). It describes how we will work together and other aspects of our business relationship, and applies to your participation in our marketing affiliate program (the “Affiliate Program”). You cannot participate in our Affiliate Program unless you agree to these terms.
We periodically update these terms, and may replace these terms entirely if, for example, the Affiliate Program changes, ends or becomes part of another program. If we update or replace the terms, we or the Affiliate Platform (defined below) will let you know via electronic means, which may include an online notification or by email. We encourage you to review this Agreement periodically. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version, and the updated Agreement will become effective and binding on that date. IF YOU DO NOT AGREE TO THE UPDATED OR REPLACEMENT TERMS, YOU MUST END YOUR PARTICIPATION IN THE AFFILIATE PROGRAM AS WE DESCRIBE BELOW.
Definitions
“Affiliate Lead” means an individual customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Platform.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Platform” means the affiliate marketing platform that will be available for your use upon your acceptance into the Affiliate Program.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Affiliate Program” means our marketing affiliate program as described in this Agreement.
“Agreement” means this Marketing Affiliate Program Agreement and all materials referred or linked to in this Marketing Affiliate Program Agreement, including the Program Policies and other information, restrictions, terms and conditions made available in the Affiliate Platform.
“Altos Planos,” “we,” “us” and “our” mean Altos Planos, Inc.
“Altos Planos Affiliate” means a company owned, operated or controlled by Altos Planos.
“Altos Planos Content” includes all information, data, text, messages, sound, music, video, photographs, graphics, images, logos, tasting notes, marketing materials and all other content or materials that we provide to you, to the Affiliate Platform, or otherwise incorporate into the Affiliate Program.
“Altos Planos IP” means all Altos Planos Content; the Mijenta name, label and designs; the Altos Planos name and logos; and all intellectual property, including trademarks, trade dress, copyright, patents and trade secrets, owned, acquired or licensed by Altos Planos.
“Altos Planos Products” means all products, including spirits, marketed or sold by Altos Planos.
“Commission” means the amount agreed to in the Affiliate Platform (or if applicable, in the Program Policies) for each Customer Transaction.
“Customer” means an individual who has purchased Altos Planos Products after being an Affiliate Lead.
“Customer Transaction” means an Altos Planos Product purchase transaction by a Customer that is eligible for Commission pursuant to the Program Policies and ‘Customer Transactions’ section of this Agreement.
“Program Policies” means all the up to date guidelines and policies for the Affiliate Program that we make available to you through the Affiliate Platform, email, hard copy or otherwise.
“You” and “Affiliate” mean the party, other than Altos Planos, entering into this Agreement and participating in the Affiliate Program.
Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, marketing, promotion, sale and use of similar services and products of third parties.
Affiliate Acceptance
You must complete an application to participate in the Affiliate Program, and we will review your application and notify you whether you have been accepted, in our sole discretion, to participate in the Affiliate Program. We may not contact to you to let you know that your application is rejected, but if we do not notify you that you are accepted to participate in the Affiliate Program within 30 days from your application date, your application is deemed rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect until terminated. You will need to complete any enrollment criteria set out in the Program Policies, if applicable, within 30 days of your acceptance, or you will not be able to participate in the Affiliate Program.
You must comply with this Agreement, including applicable Program Policies, at all times.
Customer Transactions
1. Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Platform (or if applicable, in the Program Policies) based on the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission pursuant to the terms described in the Affiliate Platform (including, if applicable, in the Program Policies) for each new Customer who completes a Customer Transaction after clicking on an Affiliate Link made available to you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The Commission is determined by the date of the first Customer Transaction by the Customer after clicking on an Affiliate Lead made available by you, and you will receive one Commission payment for that Customer Transaction only, regardless of any additional or future purchases made by that same customer.
2. Eligibility. To be eligible for Commission, an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, and a Customer Transaction must have occurred. Further, to be eligible for Commission, you must have, prior to the Customer Transaction, (i) expressly agreed to the terms of this Agreement; (ii) completed all steps necessary to create your account in the Affiliate Platform in accordance with our directions; (iii) designated a valid and up-to-date payment method in the Affiliate Platform; (iv) completed all required tax documentation in order for the Affiliate Platform to process payments that may be owed to you; and (v) otherwise complied with all requirements set forth in the Affiliate Platform and this Agreement.
You are not eligible to receive Commission or any other compensation from us if (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Altos Planos Affiliates; (iii) the Customer has paid or will pay any commissions, referral fees or other compensation directly to you; or (iv) the Commission payment is obtained by fraudulent means, by misuse of the Affiliate Link or Affiliate Platform, in breach of this Agreement (including any Program Policies) or by any other means that violate the spirit of the Affiliate Program.
3. Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions accepted by Altos Planos and derived from Affiliate Leads generated by the Affiliate Link that we make available to you, and which are not subsequently voided or cancelled. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination, it is a new potential customer of ours who has not made a purchase of Altos Planos Products prior to the Customer Transaction. If an Affiliate Lead does not complete a Customer Transaction within the time period described on the Affiliate Platform (or if applicable, in the Program Policies), you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
4. Commission Payment and Taxes. We or the Affiliate Platform will determine the currency in which we pay the Commission, as well as the applicable conversion rate. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
Intellectual Property and Other Proprietary Rights
1. Affiliate Trademarks. You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
2. Altos Planos’s Proprietary Rights. No license or right to any Altos Planos IP is granted by this Agreement or your participation in the Affiliate Program except as expressly stated in this Agreement. As between you and us, we retain all rights of any nature in and to the Altos Planos Products and the Altos Planos IP. If you wish to use Altos Planos Content, you must comply with our Brand Guidelines, which we will provide to you.
We encourage all customers, affiliates and partners to comment on Altos Planos Products and provide suggestions for improving them. You agree that all of your comments and suggestions will be non-confidential and that we will own all rights to use and incorporate them into the Altos Planos Products and the Altos Planos IP, without payment to you or any notice or attribution.
In the event we provide any Altos Planos IP to you for use in connection with the Affiliate Program, your license is very narrow and limited and lasts only until this Agreement or your participation in the Affiliate Program is terminated, unless the license is terminated earlier. You must (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program; (iii) comply with our Brand Guidelines; and (iv) immediately comply if we request that you modify or discontinue use. You must not (v) use our trademarks in a misleading or disparaging way; (vi) use our trademarks in a way that implies we endorse, sponsor or approve of your content, services or products; or (vii) use our trademark in violation of applicable law or in connection with an obscene, indecent or unlawful topic or material, as determined in our sole discretion.
Confidentiality
“Confidential Information” means Altos Planos customer and prospect information and all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of confidentiality. The Receiving Party shall (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care; (ii) not use any Confidential Information of the Disclosing Party for any purpose other than complying with its obligations for the Affiliate Program; (iii) not disclose Confidential Information of the Disclosing Party to any third party; and (iv) limit access to Confidential Information of the Disclosing Party as appropriate to maintain strict confidentiality. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any valid law, rule, regulation or legal process.
Term and Termination
1. Term. This Agreement will apply for as long as you participate in the Affiliate Program.
2. Termination. Either you or we may terminate this Agreement and your participation in the Affiliate Program at any time for any reason upon five days written notice to the other party. We may terminate this Agreement and your participation in the Affiliate Program immediately for cause if you breach this Agreement or if we determine that you are acting, or have acted, in a way that has or may have a negative effect on us, our reputation or business, our prospects, our customers, or that or those of any Altos Planos Affiliate, owner, employee, officer, contractor, supplier or representative.
3. Effects of Termination. Termination of this Agreement for any reason other than for cause will not affect your eligibility to receive Commission due and payable prior to the effective date of such termination under the terms of this Agreement, including any Program Policies. Upon termination of this Agreement for cause, our obligation to pay and your right to receive any Commission will terminate upon the effective date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination of this Agreement, you will (i) discontinue all use of, and delete and destroy all copies in your possession of, any Altos Planos IP; and (ii) remove all references to the Affiliate Program and all Affiliate Links from your websites, social media, and other platforms and collateral.
Affiliate Representations and Warranties
You represent and warrant that (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Altos Planos with Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement; (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks; (iv) you are and will remain compliant with all trade, legal and regulatory requirements that may apply to your business, marketing practices or participation in the Affiliate Program, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, the Telephone Consumer Protection Act (TCPA), regulations set out by the Federal Trade Commission, state governments and industry governing bodies, the Texas Deceptive Trade Practices Consumer Protection Act, and by complying with all opt-out, unsubscribe, “do not call” and “do not send” requests in accordance with the law; (v) you will not permit, allow or engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers or the public; (vi) you will accurately provide in the Affiliate Platform all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (vii) you will not purchase or boost content, ads or keywords that could be considered as competing with Altos Planos’s own advertising or that of its distributors, or otherwise violate the PPC Restriction Rules made available to you through the Affiliate Platform; (viii) you will not participate in cookie stuffing or serve pop-ups, or display false or misleading links; (ix) you will not attempt to mask the referring URL information; (x) you will not use your own Affiliate Link to purchase Altos Planos Products; and (xi) you will not use any deceptive or illegal method or mechanisms to deliver leads, including by using fake redirects or other platforms or automation devices such as robots or hidden frames.
Indemnification
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, demand or proceeding (each, an “Action”) brought against us or our owners, officers, directors, employees, agents, licensors or any Altos Planos Affiliate, that is related to or arises out of (i) your participation in the Affiliate Program or use of the Affiliate Platform; (ii) use of the Affiliate Marks or the prospect data you provide; or (iii) your violation of any law, rule or regulation, or breach of this Agreement. You shall not accept any settlement without our written consent that imposes any obligation or restriction on us, requires us to make any admission, or imposes any liability on us not covered by your defense and indemnification obligations.
Disclaimers; Limitations of Liability
1. Disclaimer of Warranties. WE AND THE ALTOS PLANOS AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE ALTOS PLANOS PRODUCTS, ALTOS PLANOS IP, THE AFFILIATE PROGRAM OR THE AFFILIATE PLATFORM FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE ALTOS PLANOS PRODUCTS, ALTOS PLANOS IP AND AFFILIATE PLATFORM ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES OR CONDITIONS, IMPLIED OR OTHERWISE, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
2. Limitation of Liability. IF WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
3. Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE PLATFORM HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS COOKIES DURING THIS PERIOD, ALTOS PLANOS WILL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU IN THE ABSENCE OF SUCH ACTION.
General
1. No Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
2. Applicable Law. This Agreement is governed by the laws of the State of Texas , without regard to any choice of law or conflict of laws provisions. The exclusive venue and jurisdiction of any court action between the parties is in the state and federal courts in Dallas County, Texas.
3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of war, hostility or sabotage; act of God; electrical, internet or telecommunication outage that is not caused by or within the control of the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
4. Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between you and us as a result of this Agreement or your participation in the Affiliate Program.
5. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
6. Notices. Notice will be sent to the contact address set forth below (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Altos Planos: Attn: General Counsel, 14901 Quorum Drive, Suite 150, Dallas, Texas 75254.
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
7. Entire Agreement. This Agreement is the complete and final agreement between us for the Affiliate Program. We reject any additional or different terms proposed by you, including those contained in a purchase order, acceptance or website.
8. Assignment. You shall not assign any rights or delegate any duties under this Agreement, including any assignment or transfer by reason of merger, reorganization, asset sale, change of control or operation of law, without our prior written consent.
9. Sales by Altos Planos. This Agreement in no way limits our right to sell the Altos Planos Products, directly or indirectly, to anyone at any time.
10. Survival. The following sections will survive the termination of this Agreement: “Confidentiality,” “Effects of Termination,” “Indemnification,” “Disclaimers; Limitation of Liability” and “General.”