The Landmark Kids
Program Terms
Landmark Kids Influencer Program Master Agreement: April 2, 2023
This Influencer Program Master Agreement ("Agreement") is made and entered into by and between The Landmark Kids, LLC its legal affiliates (“Legal Affiliates”) (defined below), its agents, respective officers, employees and others working for or on its behalf and the successors and assigns of each (“The Landmark Kids,” "Landmark Kids," “we,” “us” and “our”) and you (an influencer desiring to become a Landmark Kids marketing/advertising affiliate, also known as “Landmark Kids Affiliate,” “you” or “your”), the person submitting an online application to become a Landmark Kids Affiliate. Legal Affiliate means any entity which controls, is controlled by or under common control with Landmark Kids.
WHEREAS, by submitting the online application you are agreeing that you have read and understand the terms and conditions of this Agreement;
WHEREAS, the terms and conditions contained in this Agreement govern your participation with Landmark Kids’s Influencer Program ("Influencer Program"). Each Influencer Program offer (an "Offer") may be for any offering by Landmark Kids or by a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Influencer Program and are incorporated as part of this Agreement. By submitting your application or participating in an Offer, you expressly agree to be legally responsible for every term and condition of this Agreement. Landmark Kids reserves the right to update or replace these terms at any time without notice to you.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Enrollment in the Influencer Program.
To begin the enrollment process, you must submit an accurate and complete Influencer Program application online. You must provide us with future updates to the information you have provided and not use any aliases or other means to mask your true identity or contact information. Landmark Kids will review your application and notify you of your acceptance or rejection to the Influencer Program. We may accept or reject your application at our sole discretion for any reason or no reason at all. We reserve the right to re-evaluate your application and/or participation in the Influencer Program at any time, for any or no reason at all.
2. Landmark Kids Obligations and Rights.
Subject to your acceptance as an Influencer and your continued compliance with this Agreement, the parties hereby agree as follows:
2.1 We will provide the graphic and textual links to the Program Web Site and/or other creative materials (collectively, the "Links"). You may display the Links on websites owned or controlled by you, in emails sent by you, which make it clear the emails are coming from you, in blogs written by you and in all other materials referencing us online or offline (collectively, "Media"). The Links will serve to identify you as a member of our Influencer Program and will establish a link from your Media to the Program Web Site.
2.2 We have the right to monitor your Media at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your Media that we feel should be made, to make sure that your links to the Program Web Site are appropriate and to notify you of any changes that we may require you to make. If you do not make such changes, we reserve the right to terminate your participation in the Influencer Program.
2.3 We will pay you a commission for each Qualified Action. A “Qualified Action” is defined as an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by us and
(v) is not later determined by us to violate Section 10 herein. If such fraud or abuse is detected, you forfeit any commissions related to such occurrence and Landmark Kids will not be liable for any commissions lost as a result of such occurrence.
2.4 Subject to the terms of this Agreement, and provided that your account balance is greater than $0, we will pay you any commissions earned monthly in arrears, net thirty (30) days from the end of the month in which the commissions were earned. Accounts with a balance of less than or equal to $0 will roll over to the next month and will continue to roll over monthly until $0 is reached. We reserve the right to charge back to your account any previously paid commissions for Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
2.5 When payment of commissions related to client transactions are dependent upon Clients providing such funds to Landmark Kids, you agree that Landmark Kids shall only be liable to you for commissions for such transactions to the extent that we have received such funds from the Client. You hereby release Landmark Kids from any claim for Client transaction commissions if we have not received such funds from the Client. All orders for our products shall be subject to our acceptance.
2.6 We shall automatically generate a calculation to you for all commissions payable under this Agreement and shall remit payment to you based upon that calculation. All tracking of Links and determinations of Qualified Actions and commissions shall be made by us, in our sole discretion. If you dispute in good faith any portion of your locked commission report/dashboard, you must submit that dispute to us in writing and in enough detail before the fifteenth (15th) day of the month following the month in which the dispute arose. If your Qualified Actions and commission data statistics vary by more than 10% from our data and we reasonably determine that you have used generally accepted industry methods to track Qualified Actions, then we will make a good faith effort to arrive at a reconciliation. If we are unable to arrive at a reconciliation with you, then our numbers shall govern. If you do not dispute an invoice as described herein, then you agree to irrevocably waive any claim based upon that invoice. We reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Influencer Program violations as outlined in these terms and conditions. If we ask you for clarification or more information on any orders or clicks, we expect that you will respond in a timely and honest manner. If you (a) are not forthcoming, intentionally vague or are found to be lying, (b) are not responsive within a reasonable time period and after multiple attempts to contact you with information listed in your network profile, or (c) cannot substantiate or validate the source of your traffic to our program with clear and demonstrable proof; we reserve the absolute right to reverse orders, set your commission to 0% or suspend you from the Influencer Program for the period or orders in question. We know that many reversal issues are a result of automated processes; however, it is incumbent upon you to ensure that you have the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.
2.7 All payments due for deliverables delivered by you as set forth in a statement of work with an effective date that is prior to February 1, 2023, and that is subject to this Agreement, will be paid net thirty days (30) from the date of receipt of invoice by us. All payments due for deliverables delivered by you as set forth in a statement of work with an effective date that is on or after March 1, 2023, and that is subject to this Agreement, will be paid with a discount of two percent if paid within fifteen days (2%15); otherwise, net thirty days (30) from the date of receipt of invoice by us.
3. Influencer Obligations and Rights.
Influencer agrees as follows:
3.1 If you have an outstanding balance due to us under this Agreement or any other agreement between you and us, whether or not related to the Influencer Program, you agree that we may offset any such amounts due us from amounts otherwise payable to you under this Agreement.
3.2 To have the sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media. You agree to ensure that all materials posted on your Media or otherwise used in connection with the Influencer Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party – we will not be responsible (and you will be solely responsible) if you use another party’s copyrighted material or other intellectual property in violation of the law or any third party
rights, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contain profanity or otherwise contain materials that we inform you that we consider objectionable (collectively, "Objectionable Content").
3.3 Not to make any representations, warranties or other statements concerning Landmark Kids or Client or any of their respective products or services, except as expressly authorized herein.
3.4 That your Media does not, nor will it ever, copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Landmark Kids, any of its affiliated businesses, Clients or a part of the Program Web Site, without prior written permission from us in each instance.
3.5 Not to use any device or tactic that will divert Qualified Actions away from other Landmark Kids influencers.
3.6 To comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
3.7 To comply with the terms, conditions, guidelines and policies of any third-party services which you use in connection with the Influencer Program, including but not limited to, email providers, social networking services and ad networks.
3.8 To prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Influencer Program and the provision of such personally identifiable information to Landmark Kids and Clients for use as intended by Landmark Kids and Clients.
3.9 To prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by us or Client, or as required by applicable laws regarding such Offers.
3.10 Not place Landmark Kids ads on any online auction platform (i.e., eBay, Amazon, etc.).
3.11 No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by us Landmark Kids in each instance. Any pop-ups/unders used for the Influencer Program shall be clearly identified as Influencer served in the title bar of the window, and any Client-side ad serving software used by Influencer shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement, and the software can be easily removed according to generally accepted methods.
3.12 If you maintain your own influencer network, you agree to place the Links in your influencer network (the "Network") for access and use by those influencers in the Network (each a "Third Party Influencer"). You agree that you will expressly forbid any Third-Party Influencer to modify the Links in any way. You agree to maintain your Network according to the highest industry standards. You shall not permit any party to be a Third Party Influencer whose website or business model involves content containing Objectionable Content. You must require and confirm that all Third-Party Influencers affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. You shall promptly terminate any Third-Party Influencer who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. You shall promptly disclose to us the identity and contact information for such Third-Party Influencer. You shall promptly remove any Third-Party Influencer from the Influencer Program and terminate their access to our future Offers upon written notice from us. Unless we have been provided with all truthful and complete contact information for a Third-Party Influencer and such Third-Party Influencer has affirmatively accepted this Agreement as recorded by Landmark Kids, Influencer shall remain liable for all acts or omissions of any Third-Party Influencer.
3.13 If your Website promotes coupon codes and/or influencer links, you must adhere to our Coupon and Link Guidelines as follows:
(i) you may ONLY advertise coupon codes and/or influencer links that are provided to you through the Influencer Program,
(ii) you may not post any information about how to work around the requirements of a coupon/promotion (i.e., first time customers only),
(iii) coupons and/or influencer links must be displayed in their entirety with the full Offer, valid expiration date and code,
(iv) you may NOT use any technology that covers up the coupon code and/or influencer links and generates the affiliate click by revealing the code(s),
(v) you may NOT advertise coupon codes and/or affiliate links obtained from any non-influencer marketing channel, including coupon codes or links from our email, paid search, or any other non-influencer advertising campaigns,
(vi) you may NOT give the appearance that any ongoing offer requires clicking from your website in order to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from your site to get this deal,
(vii) you may NOT advertise in Google or any other web search on our keywords or any branded term (i.e., Landmark Kids, The Landmark Kids), and
3.14 If you participate in Pay Per Click (“PPC”) advertising, you must adhere to our PPC guidelines as follows:
(i) you may not bid on any of our trademarked terms (which are identified below), including any variations or misspellings thereof for search or content-based campaigns on Google, MSN, Yahoo, Facebook or any other network,
(ii). you may not use our trademarked terms in sequence with any other keyword (i.e., Landmark Kids Coupons),
(iii). you may not use our trademarked terms in your ad title, ad copy, display name or as the display URL,
(iv). you may not direct link to our website from any PPC ad or use redirects that yield the same result. Influencer links must be directed to an actual page on your website;
(v). you may not bid in any manner appearing higher than Landmark Kids for any search term in position 1-5 in any auction style PPC advertising program,
(vi) if you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your program, and we strongly suggest you add our trademarked terms as negative keywords, and
(vii) we have a strict no tolerance policy on PPC trademark bidding. You will forfeit all commissions for a minimum of the past 30 days and your commission will be set to 0% without warning if you engage in PPC trademark bidding that uses our trademarked terms including, but not limited to, Landmark Kids, The Landmark Kids, and Landmark Kids Review.
3.15 You agree to read, review and comply with any materials that Landmark Kids provides to you as an exhibit to this Agreement, during the onboarding process, or at any time in the future.
4. Confidentiality
4.1 You agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Legal Affiliates, or Clients provided by or on behalf of any of them shall remain strictly confidential and shall not be utilized by you for any purpose other than your participation in the Influencer Program, except
and solely to the extent that any such information is generally known or available to the public through a source other than you.
4.2 You shall not use any information obtained from the Influencer Program to develop, enhance, or operate a service that competes with the Influencer Program, or assist another party to do the same.
4.3 Landmark Kids agrees that all information, including without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales provided by you to Landmark Kids shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Landmark Kids for any purpose other than as is required to fulfill its obligations under this Agreement, except and solely to the extent that any such information is generally known or available to the public through a source other than you.
5. Suppression List
If you send Landmark Kids Emails, as defined below, this section applies to your sending Landmark Kids Emails.
5.1 You agree that for all dedicated email campaigns, if requested by Landmark Kids, you will submit your email list to be scrubbed against The Landmark Kids’s list of individuals who have opted out of receiving promotional emails from Landmark Kids (the “Scrubbed List”), which may be done by a third-party, Landmark Kids or You, at The Landmark Kids’s sole discretion.
5.2 You further agree that you will use only the list provided by the third-party (the “List”), which is the result of the scrubbing of our suppression list against your list, before sending any dedicated electronic communication referencing us or any of our products (“Landmark Kids Emails”) and will not send any such Landmark Kids Emails to an email address other than those included on the List.
5.3 In the event that we receive a complaint from any recipient of a Landmark Kids Email transmitted by you, and upon our request, you will immediately provide us with the appropriate records verifying consent from such recipient to receive transmissions from you. Such records shall include, but may not necessarily be limited to, the URL of the underlying web site where the recipient consented to receive transmissions from you (or from third parties), the date and time stamp consent was received from the recipient, the IP address of the computer used by the recipient at the time consent was provided and the privacy policy of such underlying web site.
5.4 If you fail to comply with any of the provisions of this Section 5, we have the right to suspend or withhold commission payments, suspend or terminate you from the Influencer Program or pursue any other remedy available under the Agreement, at law or in equity.
5.5 The parties agree that Landmark Kids will provide an opt-out method in all Links, however, if any opt-out requests come directly to Influencer, Influencer shall immediately forward them to Landmark Kids at media@thelandmarkkids.com. Influencer’s emails containing the Links may not include any content other than the Links, except as required by applicable law.
6. Limited License & Intellectual Property
6.1 Landmark Kids agrees:
6.1.1. We grant you a nonexclusive, nontransferable, revocable right to (i) use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement and (ii) our graphics, creative, copy or other materials owned by, or licensed to us (collectively, the Licensed Materials”), for the sole purpose of identifying your Media as a participant in the Influencer Program and assisting sales through the Program Web Site for the term of your participation in the Influencer Program.
6.2 Influencer agrees:
6.2.1 You grant us (including, without limitation, our agents and others working for us or on our behalf) and our respective licensees, successors, and assigns (collectively “Landmark Kids”) the unlimited right and
permission to use, distribute, publish, exhibit, digitize, broadcast, display, reproduce, and otherwise exploit your name, signature, picture, likeness, voice, and biographical information, and any of your statements, content or Media which reference us or our products or services, and any material we base thereon or derive therefrom, together with any actual or fictional material, or to refrain from doing so, in any manner or media whatsoever (whether now known or hereafter derived) anywhere in the world in perpetuity for the purpose of consumer advertising or trade promoting and publicizing us or our products or services.
6.2.2 You will have no right of approval, no claim to compensation, and no claim (including, without limitation, claims based upon invasion of privacy, defamation, or right of publicity) arising out of any use, blurring, alteration, distortion, illusionary effect, faulty reproduction, fictionalization, or use in any composite form of your name, signature, picture, likeness, voice, and biographical information and any of your statements, content or Media. You have the full and exclusive right and authority to grant the rights granted hereunder and agree that the grant of these rights (as well as this Agreement) does not in any way conflict with any existing commitment on your part.
6.2.3 You have not previously authorized (which authority is still in effect), nor will you authorize or permit the use of your name, signature, picture, likeness, voice, or biographical information or any statements, content or Media in connection with the advertising or promotion of any product or services competitive or incompatible with those of Landmark Kids.
The goodwill associated with the Links and Licensed Materials will inure to our sole benefit.
6.2.4 You will not alter, modify, manipulate or create derivative works of the Links or any of the Licensed Materials in any way.
6.2.5 You will only be entitled to use the Links and Licensed Materials to the extent that you are a member in good standing of our Influencer Program. We may revoke your usage rights immediately at any time by written notice, electronic or otherwise, to you.
6.3 Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of our Links, Licensed Materials, trademarks, service marks, copyrights, patents or trade secrets. You agree that Landmark Kids may use, in any manner, any suggestion, comment or recommendation you provide to us without compensation.
7. Term and Termination
7.1 This Agreement shall commence on the date of our approval of your Influencer Program application and shall continue thereafter until terminated as provided herein.
Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice, email sufficing. As to Landmark Kids, an email indicating termination must be sent to: media@thelandmarkkids.com.
7.3 In the event of a breach by you, Landmark Kids may terminate this Agreement immediately and you shall forfeit all compensation payable to you as of the date of termination by Landmark Kids.
7.4 Upon termination you will immediately cease all use of and delete all Licensed Materials, Links, plus all of Landmark Kids’s intellectual property or Client intellectual property, and you will cease representing yourself as an Influencer with respect to any of our or Client’s Offers.
7.5 All rights to validly accrued payments (meaning those accrued prior to any breach by you), causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
8. Remedies
8.1 In addition to any other rights and remedies available to Landmark Kids under this Agreement, we reserve the right to delete any actions submitted through your Links and withhold and freeze any unpaid commissions
or charge back paid commissions to your account if (i) we determine that you have violated this Agreement,
(ii) we receive any complaints about your participation in the Influencer Program which we reasonably believe to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or the Influencer Program.
8.2 Such withholding or freezing of commissions, or charge backs for paid commissions, shall be without regard as to whether such commissions were earned because of such breach.
8.3 In the event of a material breach of this Agreement, we reserve the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
9. Anti-Spam Compliance
9.1 You must comply with the federal CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991 (the "Acts"). For the avoidance of doubt, (i) for the purposes of the CAN-SPAM Act of 2003 and any similar or successor legislation (CAN-SPAM), you are the “Sender” of each email referencing us, (ii) for the purposes of the Communications Act of 1934 as amended by Telephone Consumer Protection Act of 1991 and any similar or successor legislation (TCPA), you “make” and “initiate” each text message referencing us, and (iii) you must comply with CAN-SPAM, TCPA and marketing industry standards and best practices for all emails, texts, and other messages relating to us.
9.2 From time to time, we may request - prior to your publishing blogs, social media posts or sending emails, texts and other messages referring to us or containing linking or referencing the Influencer Program (“Communications”) - that you submit to a review of any of your Communications prior to transmitting it to a third party (“Review”). Upon receiving notice from Landmark Kids that we completed our Review of such Communications, it may be transmitted to third parties. However, it is your sole obligation to ensure that your email complies with all applicable laws, rules and regulations, including the Acts, industry standards and best practices. You agree not to rely upon our Review of your Communication as compliance and you agree not to assert any claim against Landmark Kids that you are complying based upon Review of the Communications.
9.3 Upon our request, you will provide us with written certification that you have complied with the foregoing. We will specify the form of, and content required in, that certification in any such request.
9.4 Any failure by you to comply with any applicable laws, rules, and regulations, including but not limited to these Anti-Spam Compliance provisions will constitute a material breach of this Agreement.
10. FTC Disclosure Compliance
10.1 The Federal Trade Commission (“FTC”) requires disclosure of material connections between advertisers and those who endorse their products/services. Please be sure to state in ALL promotional activities, including all Media, that you are compensated for your promotion of Landmark Kids. For the avoidance of doubt, you must include a disclosure statement within all pages, blog/posts, or social media posts which reference us or where influencer links for our Influencer Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement must be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us in exchange for your honest review, you must clearly and concisely state that in your disclosure. Remember to the extent that you represent you use our products or services, you are expressing your current honest opinion, finding, belief or experience provide your honest opinion and feedback so as not to deceive your audience.
10.2 Disclosures must be made at the beginning of the communication and may not appear solely in a “Terms of Use”, “Legal”, “About Us” or another linked page. Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure (e.g., disclosure should be visible before the jump).
10.3 You must include the following hashtags in each social media post:
a. #Ad, or #Paid, or #Sponsored; and
b. #LandmarkKidsAffiliate, or #LandmarkKidsSponsor or #LandmarkKidsInfluencer.
10.4 Pop-up, hover state and button disclosures are prohibited.
10.5 Disclosure policy applies to all social media, even when space is restricted (e.g., tweets)
10.6 Disclosures should be made in the same medium as the claim (e.g., video, text)
10.7 For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Guidelines at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (example 21) and the FTC's Endorsement Guidelines at https://www.ftc.gov/business-guidance/resources/disclosures-101-social-media- influencers.
10.8 If you engage in so called “native advertising”, you further agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf and the related guidelines.
10.9 Any failure by you to comply with any FTC regulations will constitute a material breach of this Agreement.
11. Fraud
11.1 You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other influencers, or falsify information in connection with referrals through the Links or the generation of commissions or exceed your permitted access to the Influencer Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, cookie-stuffing and other deceptive acts or click-fraud. Landmark Kids shall make all determinations about fraudulent activity in its sole discretion.
12. Representations and Warranties
You represent and warrant that:
12.1 The information you have submitted to us in your application, electronic or otherwise, is true and complete.
12.2 You have not paid nor agreed to pay any fee or monetary consideration or anything of value to us or to or for the benefit of any of our officers, directors, employees or representatives related to entering into this Agreement.
12.3 This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
12.4 Either on behalf of yourself or on behalf of a business entity, you represent that you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
13. Indemnification
13.1 To the maximum extent permitted by applicable law, we will have no liability for any matter directly or indirectly relating to the creation, maintenance, or operation of your web site or Media or your violation of this Agreement, and you agree to defend, indemnify and hold us and our Legal Affiliates, licensors, Clients and their respective employees, officers, directors and representatives harmless from and against all and all claims, damages, losses, liabilities, costs and expenses (including attorneys’ fees and investigative expenses), relating to (i) your Media, web site or any materials that appear on your web site, including the combination of your web site or those materials with other applications, content, or processes, (ii) the use, development,
design, manufacture, production, advertising, promotion, or marketing of your Media, website or any materials that appear on or within your website, (iii) your use of any service offering, whether or not such use is authorized by or violates this Agreement or applicable law, (iv) your violation of any term or condition of this Agreement , or (v) your or your employees’ or contractors’ negligence or willful misconduct. We may take whatever legal action we believe to be necessary to exercise or defend a legal claim or for the protection of rights, including for the purpose of enforcing this paragraph.
13.2 Landmark Kids agrees to defend, indemnify and hold you harmless from and against any and all third-party claims, damages, losses, liabilities, costs and expenses (including attorneys’ fees and investigative expenses), relating solely to claims Landmark Kids makes about its products.
14. Limitation of Liability
NEITHER WE NOR ANY OF OUR LEGAL AFFILIATES, LICENSORS OR CLIENTS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH YOUR PERFORMANCE OF THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
15. Modifications
15.1 In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time without notice to you.
15.2 We may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. You agree to promptly implement any request from us to remove, alter or modify any Link, graphic or banner ad that is being used by you as part of the Influencer Program.
16. Disclaimers
THE INFLUENCER PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO INFLUENCER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, LANDMARK KIDS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LANDMARK KIDS DOES NOT WARRANT THAT THE INFLUENCER PROGRAM OR LINKS WILL MEET INFLUENCER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE INFLUENCER PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. LANDMARK KIDS EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. LANDMARK KIDS DOES NOT GUARANTEE THAT INFLUENCER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
17. Dispute Resolution; Governing Law
17.1 Any and all disputes, claims, and causes of action arising out of or connected with this Agreement or your relationship with us shall be resolved individually, without resort to any form of class action, by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of Ohio, without regard to principles of conflict of law rules (whether of the Ohio, the United States or any other jurisdiction which would cause the application of the laws of any jurisdiction other than Ohio), will govern this Agreement and any dispute of any sort that might arise between you and us.
17.2 The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial.
17.3 Any and all claims, judgments, and awards shall be limited to actual out of pocket costs incurred, but in no event attorneys’ fees; and under no circumstances will you be permitted to obtain awards for and you hereby waives all rights to claim punitive, incidental and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU.
17.4 Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Influencer Program are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
18. Force Majeure
Except to the extent that the specific provisions of this Agreement provide otherwise, we reserve the unqualified right to manage our business in all aspects including, but not limited to, the right to alter our product offerings and commission schedules. If we are restricted in the production, sale or delivery of products by capacity limitations, acts of governmental authority, strikes or any other cause, natural or otherwise, beyond our control, we shall not be compelled to honor previously accepted orders, but shall distribute available products in a manner we determine to be fair and equitable.
19. Miscellaneous
19.1 This Agreement contains the entire agreement between you and us with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. You agree that we shall not be subject to or bound by any Influencer insertion order or online terms and conditions that amend, conflict with, or supplement this Agreement, regardless of whether we "clicks through" or otherwise indicate acceptance thereof.
19.2 In entering into this Agreement, you understand that you have been selected by us to furnish the services specified herein because of your reliability, the standards of service and quality represented to be performed hereunder, your reputation as an influencer, and other like factors which we have considered in making our determination to accept your application and enter into this Agreement. For the foregoing reasons, the covenants and agreements contained herein shall be binding upon you, and you acknowledge that you do not have the right to assign, transfer or delegate your duties and obligations hereunder or your interest herein (except as provided in paragraph 3.12 herein) without our express written consent, first obtained in each instance.
19.3 The provisions of this Agreement which by their nature were intended to survive the termination and/or expiration of this Agreement, shall survive such termination and/or expiration of this Agreement.
19.4 Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties.
19.5 If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
19.6 Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a legal partnership, joint venture, association or employment relationship between the parties, and neither may act as the agent, employee or fiduciary of the other.
19.7 No course of dealing or the failure of either of the parties at any time to enforce any provision of this Agreement shall be construed as a waiver of such provision and shall not affect the right of that party at a later time to enforce each and every provision.
BY SUBMITTING YOUR APPLICATION TO THE INFLUENCER PROGRAM, YOU AFFIRM AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT SUBMIT YOUR APPLICATION.
This Influencer Program Master Agreement ("Agreement") is made and entered into by and between The Landmark Kids, LLC its legal affiliates (“Legal Affiliates”) (defined below), its agents, respective officers, employees and others working for or on its behalf and the successors and assigns of each (“The Landmark Kids,” "Landmark Kids," “we,” “us” and “our”) and you (an influencer desiring to become a Landmark Kids marketing/advertising affiliate, also known as “Landmark Kids Affiliate,” “you” or “your”), the person submitting an online application to become a Landmark Kids Affiliate. Legal Affiliate means any entity which controls, is controlled by or under common control with Landmark Kids.
WHEREAS, by submitting the online application you are agreeing that you have read and understand the terms and conditions of this Agreement;
WHEREAS, the terms and conditions contained in this Agreement govern your participation with Landmark Kids’s Influencer Program ("Influencer Program"). Each Influencer Program offer (an "Offer") may be for any offering by Landmark Kids or by a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Influencer Program and are incorporated as part of this Agreement. By submitting your application or participating in an Offer, you expressly agree to be legally responsible for every term and condition of this Agreement. Landmark Kids reserves the right to update or replace these terms at any time without notice to you.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Enrollment in the Influencer Program.
To begin the enrollment process, you must submit an accurate and complete Influencer Program application online. You must provide us with future updates to the information you have provided and not use any aliases or other means to mask your true identity or contact information. Landmark Kids will review your application and notify you of your acceptance or rejection to the Influencer Program. We may accept or reject your application at our sole discretion for any reason or no reason at all. We reserve the right to re-evaluate your application and/or participation in the Influencer Program at any time, for any or no reason at all.
2. Landmark Kids Obligations and Rights.
Subject to your acceptance as an Influencer and your continued compliance with this Agreement, the parties hereby agree as follows:
2.1 We will provide the graphic and textual links to the Program Web Site and/or other creative materials (collectively, the "Links"). You may display the Links on websites owned or controlled by you, in emails sent by you, which make it clear the emails are coming from you, in blogs written by you and in all other materials referencing us online or offline (collectively, "Media"). The Links will serve to identify you as a member of our Influencer Program and will establish a link from your Media to the Program Web Site.
2.2 We have the right to monitor your Media at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your Media that we feel should be made, to make sure that your links to the Program Web Site are appropriate and to notify you of any changes that we may require you to make. If you do not make such changes, we reserve the right to terminate your participation in the Influencer Program.
2.3 We will pay you a commission for each Qualified Action. A “Qualified Action” is defined as an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by us and
(v) is not later determined by us to violate Section 10 herein. If such fraud or abuse is detected, you forfeit any commissions related to such occurrence and Landmark Kids will not be liable for any commissions lost as a result of such occurrence.
2.4 Subject to the terms of this Agreement, and provided that your account balance is greater than $0, we will pay you any commissions earned monthly in arrears, net thirty (30) days from the end of the month in which the commissions were earned. Accounts with a balance of less than or equal to $0 will roll over to the next month and will continue to roll over monthly until $0 is reached. We reserve the right to charge back to your account any previously paid commissions for Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
2.5 When payment of commissions related to client transactions are dependent upon Clients providing such funds to Landmark Kids, you agree that Landmark Kids shall only be liable to you for commissions for such transactions to the extent that we have received such funds from the Client. You hereby release Landmark Kids from any claim for Client transaction commissions if we have not received such funds from the Client. All orders for our products shall be subject to our acceptance.
2.6 We shall automatically generate a calculation to you for all commissions payable under this Agreement and shall remit payment to you based upon that calculation. All tracking of Links and determinations of Qualified Actions and commissions shall be made by us, in our sole discretion. If you dispute in good faith any portion of your locked commission report/dashboard, you must submit that dispute to us in writing and in enough detail before the fifteenth (15th) day of the month following the month in which the dispute arose. If your Qualified Actions and commission data statistics vary by more than 10% from our data and we reasonably determine that you have used generally accepted industry methods to track Qualified Actions, then we will make a good faith effort to arrive at a reconciliation. If we are unable to arrive at a reconciliation with you, then our numbers shall govern. If you do not dispute an invoice as described herein, then you agree to irrevocably waive any claim based upon that invoice. We reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Influencer Program violations as outlined in these terms and conditions. If we ask you for clarification or more information on any orders or clicks, we expect that you will respond in a timely and honest manner. If you (a) are not forthcoming, intentionally vague or are found to be lying, (b) are not responsive within a reasonable time period and after multiple attempts to contact you with information listed in your network profile, or (c) cannot substantiate or validate the source of your traffic to our program with clear and demonstrable proof; we reserve the absolute right to reverse orders, set your commission to 0% or suspend you from the Influencer Program for the period or orders in question. We know that many reversal issues are a result of automated processes; however, it is incumbent upon you to ensure that you have the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.
2.7 All payments due for deliverables delivered by you as set forth in a statement of work with an effective date that is prior to February 1, 2023, and that is subject to this Agreement, will be paid net thirty days (30) from the date of receipt of invoice by us. All payments due for deliverables delivered by you as set forth in a statement of work with an effective date that is on or after March 1, 2023, and that is subject to this Agreement, will be paid with a discount of two percent if paid within fifteen days (2%15); otherwise, net thirty days (30) from the date of receipt of invoice by us.
3. Influencer Obligations and Rights.
Influencer agrees as follows:
3.1 If you have an outstanding balance due to us under this Agreement or any other agreement between you and us, whether or not related to the Influencer Program, you agree that we may offset any such amounts due us from amounts otherwise payable to you under this Agreement.
3.2 To have the sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media. You agree to ensure that all materials posted on your Media or otherwise used in connection with the Influencer Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party – we will not be responsible (and you will be solely responsible) if you use another party’s copyrighted material or other intellectual property in violation of the law or any third party
rights, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contain profanity or otherwise contain materials that we inform you that we consider objectionable (collectively, "Objectionable Content").
3.3 Not to make any representations, warranties or other statements concerning Landmark Kids or Client or any of their respective products or services, except as expressly authorized herein.
3.4 That your Media does not, nor will it ever, copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Landmark Kids, any of its affiliated businesses, Clients or a part of the Program Web Site, without prior written permission from us in each instance.
3.5 Not to use any device or tactic that will divert Qualified Actions away from other Landmark Kids influencers.
3.6 To comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
3.7 To comply with the terms, conditions, guidelines and policies of any third-party services which you use in connection with the Influencer Program, including but not limited to, email providers, social networking services and ad networks.
3.8 To prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Influencer Program and the provision of such personally identifiable information to Landmark Kids and Clients for use as intended by Landmark Kids and Clients.
3.9 To prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by us or Client, or as required by applicable laws regarding such Offers.
3.10 Not place Landmark Kids ads on any online auction platform (i.e., eBay, Amazon, etc.).
3.11 No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by us Landmark Kids in each instance. Any pop-ups/unders used for the Influencer Program shall be clearly identified as Influencer served in the title bar of the window, and any Client-side ad serving software used by Influencer shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement, and the software can be easily removed according to generally accepted methods.
3.12 If you maintain your own influencer network, you agree to place the Links in your influencer network (the "Network") for access and use by those influencers in the Network (each a "Third Party Influencer"). You agree that you will expressly forbid any Third-Party Influencer to modify the Links in any way. You agree to maintain your Network according to the highest industry standards. You shall not permit any party to be a Third Party Influencer whose website or business model involves content containing Objectionable Content. You must require and confirm that all Third-Party Influencers affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. You shall promptly terminate any Third-Party Influencer who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. You shall promptly disclose to us the identity and contact information for such Third-Party Influencer. You shall promptly remove any Third-Party Influencer from the Influencer Program and terminate their access to our future Offers upon written notice from us. Unless we have been provided with all truthful and complete contact information for a Third-Party Influencer and such Third-Party Influencer has affirmatively accepted this Agreement as recorded by Landmark Kids, Influencer shall remain liable for all acts or omissions of any Third-Party Influencer.
3.13 If your Website promotes coupon codes and/or influencer links, you must adhere to our Coupon and Link Guidelines as follows:
(i) you may ONLY advertise coupon codes and/or influencer links that are provided to you through the Influencer Program,
(ii) you may not post any information about how to work around the requirements of a coupon/promotion (i.e., first time customers only),
(iii) coupons and/or influencer links must be displayed in their entirety with the full Offer, valid expiration date and code,
(iv) you may NOT use any technology that covers up the coupon code and/or influencer links and generates the affiliate click by revealing the code(s),
(v) you may NOT advertise coupon codes and/or affiliate links obtained from any non-influencer marketing channel, including coupon codes or links from our email, paid search, or any other non-influencer advertising campaigns,
(vi) you may NOT give the appearance that any ongoing offer requires clicking from your website in order to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from your site to get this deal,
(vii) you may NOT advertise in Google or any other web search on our keywords or any branded term (i.e., Landmark Kids, The Landmark Kids), and
3.14 If you participate in Pay Per Click (“PPC”) advertising, you must adhere to our PPC guidelines as follows:
(i) you may not bid on any of our trademarked terms (which are identified below), including any variations or misspellings thereof for search or content-based campaigns on Google, MSN, Yahoo, Facebook or any other network,
(ii). you may not use our trademarked terms in sequence with any other keyword (i.e., Landmark Kids Coupons),
(iii). you may not use our trademarked terms in your ad title, ad copy, display name or as the display URL,
(iv). you may not direct link to our website from any PPC ad or use redirects that yield the same result. Influencer links must be directed to an actual page on your website;
(v). you may not bid in any manner appearing higher than Landmark Kids for any search term in position 1-5 in any auction style PPC advertising program,
(vi) if you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your program, and we strongly suggest you add our trademarked terms as negative keywords, and
(vii) we have a strict no tolerance policy on PPC trademark bidding. You will forfeit all commissions for a minimum of the past 30 days and your commission will be set to 0% without warning if you engage in PPC trademark bidding that uses our trademarked terms including, but not limited to, Landmark Kids, The Landmark Kids, and Landmark Kids Review.
3.15 You agree to read, review and comply with any materials that Landmark Kids provides to you as an exhibit to this Agreement, during the onboarding process, or at any time in the future.
4. Confidentiality
4.1 You agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Legal Affiliates, or Clients provided by or on behalf of any of them shall remain strictly confidential and shall not be utilized by you for any purpose other than your participation in the Influencer Program, except
and solely to the extent that any such information is generally known or available to the public through a source other than you.
4.2 You shall not use any information obtained from the Influencer Program to develop, enhance, or operate a service that competes with the Influencer Program, or assist another party to do the same.
4.3 Landmark Kids agrees that all information, including without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales provided by you to Landmark Kids shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Landmark Kids for any purpose other than as is required to fulfill its obligations under this Agreement, except and solely to the extent that any such information is generally known or available to the public through a source other than you.
5. Suppression List
If you send Landmark Kids Emails, as defined below, this section applies to your sending Landmark Kids Emails.
5.1 You agree that for all dedicated email campaigns, if requested by Landmark Kids, you will submit your email list to be scrubbed against The Landmark Kids’s list of individuals who have opted out of receiving promotional emails from Landmark Kids (the “Scrubbed List”), which may be done by a third-party, Landmark Kids or You, at The Landmark Kids’s sole discretion.
5.2 You further agree that you will use only the list provided by the third-party (the “List”), which is the result of the scrubbing of our suppression list against your list, before sending any dedicated electronic communication referencing us or any of our products (“Landmark Kids Emails”) and will not send any such Landmark Kids Emails to an email address other than those included on the List.
5.3 In the event that we receive a complaint from any recipient of a Landmark Kids Email transmitted by you, and upon our request, you will immediately provide us with the appropriate records verifying consent from such recipient to receive transmissions from you. Such records shall include, but may not necessarily be limited to, the URL of the underlying web site where the recipient consented to receive transmissions from you (or from third parties), the date and time stamp consent was received from the recipient, the IP address of the computer used by the recipient at the time consent was provided and the privacy policy of such underlying web site.
5.4 If you fail to comply with any of the provisions of this Section 5, we have the right to suspend or withhold commission payments, suspend or terminate you from the Influencer Program or pursue any other remedy available under the Agreement, at law or in equity.
5.5 The parties agree that Landmark Kids will provide an opt-out method in all Links, however, if any opt-out requests come directly to Influencer, Influencer shall immediately forward them to Landmark Kids at media@thelandmarkkids.com. Influencer’s emails containing the Links may not include any content other than the Links, except as required by applicable law.
6. Limited License & Intellectual Property
6.1 Landmark Kids agrees:
6.1.1. We grant you a nonexclusive, nontransferable, revocable right to (i) use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement and (ii) our graphics, creative, copy or other materials owned by, or licensed to us (collectively, the Licensed Materials”), for the sole purpose of identifying your Media as a participant in the Influencer Program and assisting sales through the Program Web Site for the term of your participation in the Influencer Program.
6.2 Influencer agrees:
6.2.1 You grant us (including, without limitation, our agents and others working for us or on our behalf) and our respective licensees, successors, and assigns (collectively “Landmark Kids”) the unlimited right and
permission to use, distribute, publish, exhibit, digitize, broadcast, display, reproduce, and otherwise exploit your name, signature, picture, likeness, voice, and biographical information, and any of your statements, content or Media which reference us or our products or services, and any material we base thereon or derive therefrom, together with any actual or fictional material, or to refrain from doing so, in any manner or media whatsoever (whether now known or hereafter derived) anywhere in the world in perpetuity for the purpose of consumer advertising or trade promoting and publicizing us or our products or services.
6.2.2 You will have no right of approval, no claim to compensation, and no claim (including, without limitation, claims based upon invasion of privacy, defamation, or right of publicity) arising out of any use, blurring, alteration, distortion, illusionary effect, faulty reproduction, fictionalization, or use in any composite form of your name, signature, picture, likeness, voice, and biographical information and any of your statements, content or Media. You have the full and exclusive right and authority to grant the rights granted hereunder and agree that the grant of these rights (as well as this Agreement) does not in any way conflict with any existing commitment on your part.
6.2.3 You have not previously authorized (which authority is still in effect), nor will you authorize or permit the use of your name, signature, picture, likeness, voice, or biographical information or any statements, content or Media in connection with the advertising or promotion of any product or services competitive or incompatible with those of Landmark Kids.
The goodwill associated with the Links and Licensed Materials will inure to our sole benefit.
6.2.4 You will not alter, modify, manipulate or create derivative works of the Links or any of the Licensed Materials in any way.
6.2.5 You will only be entitled to use the Links and Licensed Materials to the extent that you are a member in good standing of our Influencer Program. We may revoke your usage rights immediately at any time by written notice, electronic or otherwise, to you.
6.3 Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of our Links, Licensed Materials, trademarks, service marks, copyrights, patents or trade secrets. You agree that Landmark Kids may use, in any manner, any suggestion, comment or recommendation you provide to us without compensation.
7. Term and Termination
7.1 This Agreement shall commence on the date of our approval of your Influencer Program application and shall continue thereafter until terminated as provided herein.
Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice, email sufficing. As to Landmark Kids, an email indicating termination must be sent to: media@thelandmarkkids.com.
7.3 In the event of a breach by you, Landmark Kids may terminate this Agreement immediately and you shall forfeit all compensation payable to you as of the date of termination by Landmark Kids.
7.4 Upon termination you will immediately cease all use of and delete all Licensed Materials, Links, plus all of Landmark Kids’s intellectual property or Client intellectual property, and you will cease representing yourself as an Influencer with respect to any of our or Client’s Offers.
7.5 All rights to validly accrued payments (meaning those accrued prior to any breach by you), causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
8. Remedies
8.1 In addition to any other rights and remedies available to Landmark Kids under this Agreement, we reserve the right to delete any actions submitted through your Links and withhold and freeze any unpaid commissions
or charge back paid commissions to your account if (i) we determine that you have violated this Agreement,
(ii) we receive any complaints about your participation in the Influencer Program which we reasonably believe to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or the Influencer Program.
8.2 Such withholding or freezing of commissions, or charge backs for paid commissions, shall be without regard as to whether such commissions were earned because of such breach.
8.3 In the event of a material breach of this Agreement, we reserve the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
9. Anti-Spam Compliance
9.1 You must comply with the federal CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991 (the "Acts"). For the avoidance of doubt, (i) for the purposes of the CAN-SPAM Act of 2003 and any similar or successor legislation (CAN-SPAM), you are the “Sender” of each email referencing us, (ii) for the purposes of the Communications Act of 1934 as amended by Telephone Consumer Protection Act of 1991 and any similar or successor legislation (TCPA), you “make” and “initiate” each text message referencing us, and (iii) you must comply with CAN-SPAM, TCPA and marketing industry standards and best practices for all emails, texts, and other messages relating to us.
9.2 From time to time, we may request - prior to your publishing blogs, social media posts or sending emails, texts and other messages referring to us or containing linking or referencing the Influencer Program (“Communications”) - that you submit to a review of any of your Communications prior to transmitting it to a third party (“Review”). Upon receiving notice from Landmark Kids that we completed our Review of such Communications, it may be transmitted to third parties. However, it is your sole obligation to ensure that your email complies with all applicable laws, rules and regulations, including the Acts, industry standards and best practices. You agree not to rely upon our Review of your Communication as compliance and you agree not to assert any claim against Landmark Kids that you are complying based upon Review of the Communications.
9.3 Upon our request, you will provide us with written certification that you have complied with the foregoing. We will specify the form of, and content required in, that certification in any such request.
9.4 Any failure by you to comply with any applicable laws, rules, and regulations, including but not limited to these Anti-Spam Compliance provisions will constitute a material breach of this Agreement.
10. FTC Disclosure Compliance
10.1 The Federal Trade Commission (“FTC”) requires disclosure of material connections between advertisers and those who endorse their products/services. Please be sure to state in ALL promotional activities, including all Media, that you are compensated for your promotion of Landmark Kids. For the avoidance of doubt, you must include a disclosure statement within all pages, blog/posts, or social media posts which reference us or where influencer links for our Influencer Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement must be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us in exchange for your honest review, you must clearly and concisely state that in your disclosure. Remember to the extent that you represent you use our products or services, you are expressing your current honest opinion, finding, belief or experience provide your honest opinion and feedback so as not to deceive your audience.
10.2 Disclosures must be made at the beginning of the communication and may not appear solely in a “Terms of Use”, “Legal”, “About Us” or another linked page. Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure (e.g., disclosure should be visible before the jump).
10.3 You must include the following hashtags in each social media post:
a. #Ad, or #Paid, or #Sponsored; and
b. #LandmarkKidsAffiliate, or #LandmarkKidsSponsor or #LandmarkKidsInfluencer.
10.4 Pop-up, hover state and button disclosures are prohibited.
10.5 Disclosure policy applies to all social media, even when space is restricted (e.g., tweets)
10.6 Disclosures should be made in the same medium as the claim (e.g., video, text)
10.7 For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Guidelines at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (example 21) and the FTC's Endorsement Guidelines at https://www.ftc.gov/business-guidance/resources/disclosures-101-social-media- influencers.
10.8 If you engage in so called “native advertising”, you further agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf and the related guidelines.
10.9 Any failure by you to comply with any FTC regulations will constitute a material breach of this Agreement.
11. Fraud
11.1 You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other influencers, or falsify information in connection with referrals through the Links or the generation of commissions or exceed your permitted access to the Influencer Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, cookie-stuffing and other deceptive acts or click-fraud. Landmark Kids shall make all determinations about fraudulent activity in its sole discretion.
12. Representations and Warranties
You represent and warrant that:
12.1 The information you have submitted to us in your application, electronic or otherwise, is true and complete.
12.2 You have not paid nor agreed to pay any fee or monetary consideration or anything of value to us or to or for the benefit of any of our officers, directors, employees or representatives related to entering into this Agreement.
12.3 This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
12.4 Either on behalf of yourself or on behalf of a business entity, you represent that you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
13. Indemnification
13.1 To the maximum extent permitted by applicable law, we will have no liability for any matter directly or indirectly relating to the creation, maintenance, or operation of your web site or Media or your violation of this Agreement, and you agree to defend, indemnify and hold us and our Legal Affiliates, licensors, Clients and their respective employees, officers, directors and representatives harmless from and against all and all claims, damages, losses, liabilities, costs and expenses (including attorneys’ fees and investigative expenses), relating to (i) your Media, web site or any materials that appear on your web site, including the combination of your web site or those materials with other applications, content, or processes, (ii) the use, development,
design, manufacture, production, advertising, promotion, or marketing of your Media, website or any materials that appear on or within your website, (iii) your use of any service offering, whether or not such use is authorized by or violates this Agreement or applicable law, (iv) your violation of any term or condition of this Agreement , or (v) your or your employees’ or contractors’ negligence or willful misconduct. We may take whatever legal action we believe to be necessary to exercise or defend a legal claim or for the protection of rights, including for the purpose of enforcing this paragraph.
13.2 Landmark Kids agrees to defend, indemnify and hold you harmless from and against any and all third-party claims, damages, losses, liabilities, costs and expenses (including attorneys’ fees and investigative expenses), relating solely to claims Landmark Kids makes about its products.
14. Limitation of Liability
NEITHER WE NOR ANY OF OUR LEGAL AFFILIATES, LICENSORS OR CLIENTS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH YOUR PERFORMANCE OF THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
15. Modifications
15.1 In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time without notice to you.
15.2 We may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. You agree to promptly implement any request from us to remove, alter or modify any Link, graphic or banner ad that is being used by you as part of the Influencer Program.
16. Disclaimers
THE INFLUENCER PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO INFLUENCER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, LANDMARK KIDS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LANDMARK KIDS DOES NOT WARRANT THAT THE INFLUENCER PROGRAM OR LINKS WILL MEET INFLUENCER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE INFLUENCER PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. LANDMARK KIDS EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. LANDMARK KIDS DOES NOT GUARANTEE THAT INFLUENCER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
17. Dispute Resolution; Governing Law
17.1 Any and all disputes, claims, and causes of action arising out of or connected with this Agreement or your relationship with us shall be resolved individually, without resort to any form of class action, by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of Ohio, without regard to principles of conflict of law rules (whether of the Ohio, the United States or any other jurisdiction which would cause the application of the laws of any jurisdiction other than Ohio), will govern this Agreement and any dispute of any sort that might arise between you and us.
17.2 The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial.
17.3 Any and all claims, judgments, and awards shall be limited to actual out of pocket costs incurred, but in no event attorneys’ fees; and under no circumstances will you be permitted to obtain awards for and you hereby waives all rights to claim punitive, incidental and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU.
17.4 Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Influencer Program are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
18. Force Majeure
Except to the extent that the specific provisions of this Agreement provide otherwise, we reserve the unqualified right to manage our business in all aspects including, but not limited to, the right to alter our product offerings and commission schedules. If we are restricted in the production, sale or delivery of products by capacity limitations, acts of governmental authority, strikes or any other cause, natural or otherwise, beyond our control, we shall not be compelled to honor previously accepted orders, but shall distribute available products in a manner we determine to be fair and equitable.
19. Miscellaneous
19.1 This Agreement contains the entire agreement between you and us with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. You agree that we shall not be subject to or bound by any Influencer insertion order or online terms and conditions that amend, conflict with, or supplement this Agreement, regardless of whether we "clicks through" or otherwise indicate acceptance thereof.
19.2 In entering into this Agreement, you understand that you have been selected by us to furnish the services specified herein because of your reliability, the standards of service and quality represented to be performed hereunder, your reputation as an influencer, and other like factors which we have considered in making our determination to accept your application and enter into this Agreement. For the foregoing reasons, the covenants and agreements contained herein shall be binding upon you, and you acknowledge that you do not have the right to assign, transfer or delegate your duties and obligations hereunder or your interest herein (except as provided in paragraph 3.12 herein) without our express written consent, first obtained in each instance.
19.3 The provisions of this Agreement which by their nature were intended to survive the termination and/or expiration of this Agreement, shall survive such termination and/or expiration of this Agreement.
19.4 Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties.
19.5 If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
19.6 Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a legal partnership, joint venture, association or employment relationship between the parties, and neither may act as the agent, employee or fiduciary of the other.
19.7 No course of dealing or the failure of either of the parties at any time to enforce any provision of this Agreement shall be construed as a waiver of such provision and shall not affect the right of that party at a later time to enforce each and every provision.
BY SUBMITTING YOUR APPLICATION TO THE INFLUENCER PROGRAM, YOU AFFIRM AND ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO BE BOUND BY ALL ITS TERMS AND CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT SUBMIT YOUR APPLICATION.