Marigold Living

Marigold Living Affiliate Agreement Terms & Conditions

Please read our Affiliate Agreement carefully before applying to join our program. The terms and conditions noted herin are written to ensure the success of our affiliate program and our valued affiliate partners. It is each affiliate's responsibility to ensure compliance at all times.

Please do not hesitate to reach out to us at contact@marigoldliving.com for any questions or concerns you may have and if you need to discuss any of the terms. We look forward to working with you.

MARIGOLD LIVING

AFFILIATE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MARIGOLD LIVING.

BY SUBMITTING THE ONLINE AFFILIATE APPLICATION (DESCRIBED BELOW), YOU ARE AGREEING THAT YOU HAVE READ AND YOU UNDERSTAND AND AGREE TO THE TERMS OF THIS AFFILIATE AGREEMENT AND THAT YOU WILL COMPLY WITH ALL SUCH TERMS.

1. Overview and Definitions

1.1 This Affiliate Agreement (the “Agreement”) contains the complete terms and conditions that apply to you becoming, and participating as, an affiliate in Merchant’s Program (defined below) related to Merchant’s Website (defined below).

1.2 You expressly acknowledge and agree that Merchant’s decisions and judgments with respect to the administration and management of Merchant’s Program (including Merchant’s decisions related to who may participate in Merchant’s Program) are final and binding and made by Merchant in its sole discretion.

1.3 Definitions. As used in this Agreement, the following terms have the definitions ascribed to them:

1.3.1 “Affiliate” refers to an Applicant that is approved by Merchant to participate as an affiliate in Merchant’s Program as described in Section 2 below.

1.3.2 “Applicant” is defined in Section 2.1 below.

1.3.3 “Assets” refers to all artwork, copyrightable materials, banner creatives, text links, data feeds, designs, images, text, and other audio and/or visual content and materials provided by Merchant for use by Affiliate in connection with Merchant’s Program. The Assets include the Marks solely to the extent Merchant permits you to use the same with respect to Merchant’s Program and subject to all terms and conditions of this Agreement.

1.3.4 “Confidential Information” is defined in Section 14 below.

1.3.5 “Link” refers to a hyperlink from Affiliate’s Channel to web pages on Merchant’s Website.

1.3.6 “Marks” refers to Merchant’s trademark, logo and trade names.

1.3.7 “Merchant”, "we", "us", and "our" refer to Marigold Living.

1.3.8 “Merchant’s Program” refers to Merchant’s affiliate program that is related to Merchant’s Website and is the subject of this Agreement.

1.3.9 “Merchant’s Website” refers to Merchant’s Website at marigoldliving.com

1.3.10 “Pay-Per-Click” or “PPC” refers to a form of digital marketing where advertisers pay each time a visitor clicks on one of their advertisements.

1.3.11 “Third-Party Affiliate Platform” refers to the Third-Party Affiliate Platform Provider’s network and platform Awin (awin.com) used by Merchant to manage Merchant’s Program.

1.3.12 “Third-Party Affiliate Platform Provider” refers to Awin, the provider of the Third-Party Affiliate Platform used by Merchant to manage Merchant’s Program.

1.3.13 “Tracking Code” refers to the software code (from time to time) provided by the Third-Party Affiliate Platform Provider for the recording of, amongst other things, sales and other actions that are commissionable to Affiliate under the Merchant’s Affiliate Program and in accordance with the Third-Party Affiliate Platform Provider’s terms.

1.3.14 "you", "your", and "yours" refer to you whether you are an Applicant, an Affiliate, a prospective Applicant or reviewing this Agreement and/or Merchant’s Program.

1.3.15 “Your Channels” refers to all of Affiliate’s owned and operated social media pages, websites, blogs, email campaigns and other channels and communications where Affiliate includes the Link (subject to the terms of this Agreement).

2. Applicants and Affiliates; Affiliate Obligations

2.1 Each website, company, influencer and other individual and entity that is interested in becoming an Affiliate (each an “Applicant”) needs official approval from Merchant before they can become an Affiliate. Only Applicants that have been reviewed and approved are permitted to be an Affiliate and use the Assets.

2.2 In order to become an Affiliate, you must complete and submit the online affiliate application via the Third-Party Affiliate Platform. In the application, you must identify all of Your Channels where you wish to include the Link. You may include the Link on other of Your Channels provided that you notify Merchant and Merchant approves the same prior to your use. Approval of your application does not imply that we may not re-evaluate your application at a later time. We may reject your application and your participation in Merchant’s Program at any time in our sole discretion. We may, for example, cancel your application (and your Affiliate account if you were issued an account) if we determine that any of Your Channels and/or your business is unsuitable for Merchant’s Program, including if we determine that any of Your Channels and/or your business:

2.2.1 Promotes sexually explicit materials;

2.2.2 Promotes violence;

2.2.3 Promotes discrimination based on race, sex, religion, nationality, disability, gender identity, sexual orientation, or age;

2.2.4 Promotes illegal, abusive, harmful or dangerous activities;

2.2.5 Infringes or violates, or might assist others to infringe or violate, any rights of others or any law (including, but not limited to any intellectual property, privacy or personal right or law);

2.2.6 Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene or harassing, or racially, ethnically or otherwise objectionable, as determined by us in our sole discretion;

2.2.7 Includes “Marigold Living” or any other Mark, or any variation, abbreviation or misspelling thereof, in its domain name;

2.2.8 Offers incentives to visitors to click on links or ads for Merchant. Incentives include, but are not limited to, cash, points, prizes and contest entries;

2.2.9 Is incompatible with the values or mission of Merchant or is otherwise incompatible with Merchant’s Website content and aesthetic; or

2.2.10 Contains software downloads that potentially enable diversions of commission from other affiliates to Affiliate, or that potentially enable a commission to Affiliate where no commission is due or owed.

2.3 You will only use the Links and Tracking Code obtained via your account on the Third-Party Affiliate Platform. You may not modify or manipulate any Link or Tracking Code. You acknowledge and agree that modifying or manipulating any Link or Tracking Code may result in immediate suspension or termination of your account and cancellation of any fees that might otherwise be due and a claw back of fees previously paid to you.

2.4 Your Channels and other social media will not in any way copy, resemble or mirror the look or feel of Merchant’s Website, Merchant’s identity or Merchant’s social media. You may not and will not create or design Your Channels or any other social media, or otherwise promote Merchant’s Website, in a manner that might lead a visitor to believe that you are Merchant, or might otherwise cause confusion as to your relationship with Merchant. You hereby affirm that you will not use any means to create the impression that, you are owned by or share common ownership with Merchant, or that any of Your Channels is Merchant’s Website or any part of Merchant’s Website.

2.5 You will not engage in any publication, posting or other activity via social media that impersonates, imitates or supplants Merchant or Merchant’s identity, or might be deemed to impersonate, imitate or supplant Merchant or Merchant’s identity. All of your social media, materials and other engagements that reference Merchant, Merchant’s Website or any of Merchant’s products must clearly identify you or your company as the source of such social media, materials and other engagements.

2.6 Details regarding Merchant’s Program are provided on the Third-Party Affiliate Platform. As an Affiliate in Merchant’s Program, you may, via the Third-Party Affiliate Platform (and subject to the terms of this Agreement and the Third-Party Affiliate Platform Provider’s terms), download the applicable Tracking Code, Links and Assets. All use of the Tracking Code, Links and Assets is subject to compliance with the terms of this Agreement and the Third-Party Affiliate Platform Provider’s terms, and other requirements communicated to you by Merchant or via the Third-Party Affiliate Platform. In order for us to accurately keep track of all visitors from Your Channels to Merchant’s Website, you must use the Tracking Code and Links provided via the Third-Party Affiliate Platform.

2.7 Merchant reserves the right, at any time, to review your placement and use of the Assets and require that you change the placement and/or use to comply with this Agreement and Merchant’s Program requirements.

2.8 You are responsible for maintaining and updating Your Channels.

2.9 It is entirely your responsibility to follow all applicable intellectual property, privacy, advertising and other laws that pertain to Your Channels. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or any other intellectual property or other material in violation of applicable law or any third party’s rights.

2.10 You acknowledge and agree that you do not have, nor will you claim, any right, title or interest in or to Merchant’s Website or any of the Assets or Merchant’s intellectual property, data, supplier information, manufacturer information, business information, methods of doing business, or any elements of the foregoing.

3. Third-Party Affiliate Platform

3.1 Merchant uses the Third-Party Affiliate Platform to manage Merchant’s Program including, but not limited to, management of the Tracking Code and all compensation owed to Affiliate in relation to Affiliate’s participation in the Merchant Program. By signing up to be an Affiliate, or by otherwise using the Third-Party Affiliate Platform as an Applicant or otherwise, you acknowledge and agree that you are subject to all terms and policies offered by such Third-Party Affiliate Platform Provider and that such terms and policies are solely between you and such Third-Party Affiliate Platform Provider. Merchant is not responsible or liable for any of the Third-Party Affiliate Platform Provider’s services, policies, acts or omissions including, but not limited to, any data usage, privacy and/or compliance practices of the Third-Party Affiliate Platform Provider.

4. Merchant’s Rights and Obligations

4.1 We have the right to monitor Your Channels and determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to Your Channels that we feel should be made, or to make sure that your links to Merchant’s Website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to Your Channels that we believe are necessary, we reserve the right to terminate your participation in Merchant’s Program.

4.2 Merchant reserves the right to terminate this Agreement and your participation in Merchant’s Program immediately and without notice to you should you commit fraud in your use of the Assets, Merchant’s Website or Merchant’s Program, or should you abuse this program in any way. If such fraud or abuse is detected, Merchant shall not be liable to you for any commissions for such fraudulent sales.

5. Term and Termination

5.1 This Agreement commences when you apply to become an Affiliate and continues unless and until terminated as provided herein.

5.2 Either you or we may terminate this Agreement at any time, with or without cause as provided herein. If you wish to terminate this Agreement, you must provide notice to Merchant via email to contact@marigoldliving.com. If we wish to terminate this Agreement and your Affiliate account, we will notify you at your email address that is on record with the Third-Party Affiliate Platform. This Agreement will terminate immediately upon any breach of this Agreement by you.

6. Modification

6.1 This Agreement may be amended by us from time to time without specific notice to you. The latest Agreement will be posted under Merchant’s account on the Third-Party Affiliate Platform. An email alert will be sent from the Third-Party Affiliate Platform to all Affiliates participating in Merchant’s Program if the Agreement has been amended. You should review this Agreement prior to each use of Merchant’s Website. By signing up for Merchant’s Program, you indicate your acceptance of this Agreement and its terms and conditions and any future modification. If you do not accept this Agreement or any modification, your only option is to end this Agreement. Your continued participation in Merchant’s Program following receipt of notice as described above in this Section, will indicate your agreement to the changes. This Agreement, as the same may be amended, constitutes the entire and only agreement between us and you related to the subject matter herein.

7. Compensation

7.1 The Third-Party Affiliate Platform manages all tracking and all payments owed to Affiliate. Please review your agreement with the Third-Party Affiliate Platform for terms and conditions related to tracking and payment.

7.2 Notwithstanding anything to the contrary, please note:

7.2.1 Affiliate is not entitled to any payment outside of what it is entitled to as an Affiliate under Merchant’s Program and the Third-Party Affiliate Platform Provider’s terms.

7.2.2 Affiliate is not entitled to compensation in relation to purchases made by Affiliate via the Link or Tracking Code.

7.2.3 Merchant is not responsible for providing any compensation to Affiliate for sales that are not tracked properly due to Affiliate’s or a third party’s error.

7.2.4 Merchant reserves the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and/or violations of Merchant’s Program.

8. Reports Related to Compensation. All reports related to compensation are prepared or generated by the Third-Party Affiliate Platform.

9. Promotion Restrictions

9.1 Fraudulent activity is prohibited. If Merchant suspects any fraudulent activity in relation to your account, website, use of the Assets or involvement in Merchant’s Program, Merchant may immediately suspend your account. Any fraud or attempted fraud will result in termination of your account and participation in Merchant’s Program and forfeiture of all commissions.

9.2 Affiliate shall not:

9.2.1 Offer incentives to any customer to follow links or ads, or otherwise use widgets containing trackable links for referrals or sales;

9.2.2 Engage in any fraudulent activities with respect to the generation of referrals or sales, including, without limitation, fake redirects and automated or manual lead generation activities;

9.2.3 Make any false or misleading statement about Merchant, its products, Merchant’s Website, or any content or products offered via Merchant’s Website (including any products or services offered by any third party otherwise accessible on the Merchant’s Website or Merchant’s Program);

9.2.4 Place links in newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks;

9.2.5 Advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. At all times, you must clearly represent yourself and your web sites as independent from Merchant.

9.2.6 Post on Your Channels or any other of your websites or other media any inappropriate, profane, defamatory, obscene, indecent or unlawful material of any kind, or any material that is discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; or

9.2.7 Knowingly or recklessly introduce any virus, worm, harmful code, Trojan horse, malicious code, and/or other computer programming routine that is intended to, or is likely to, damage, interfere with, or surreptitiously intercept or expropriate any system, data, or personal information.

9.3 Email Marketing Requirements. If you intend to promote Merchant, Merchant’s Program and/or the Links via an e-mail campaign, you must adhere to the following: (a) you must abide by the Privacy and Electronic Communications Regulations of 2003 (Regulations 22 and 23); (b) you must not engage in “spamming” and you must comply with the CAN-SPAM Act; (c) e-mail must be sent on your behalf and must identify you and email must not suggest that the e-mail is being sent on behalf of Merchant; (d) you must send a copy of each such e-mail to Merchant at contact@marigoldliving.com

9.4 Pay-Per-Click/SEM Requirements. You shall not engage in PPC advertising or any PPC search activity on behalf of Merchant or in relation to Merchant’s Website, the Assets, Merchant’s products or, Merchant’s Program, or otherwise for purposes of sending traffic to Merchant’s Website directly. You acknowledge and agree that if you engage in PPC advertising, you will do so for your own account only (separate and unrelated to Merchant or Merchant’s Program). You may not engage in any of the following:

9.4.1 You may not bid on any Mark or any of Merchant’s product names (including any variation, abbreviation or misspelling thereof) for search or content-based campaigns on any network or otherwise.

9.4.2 You may not use any Mark or any of Merchant’s product names (or any variation, abbreviation or misspelling thereof) in sequence with any other keyword(s) (for example: “Marigold Living Coupon”, “Marigold Living Sale”, “Marigold Coupon”).

9.4.3 You may not use any Mark or any of Merchant’s product names in your ad title, ad copy or display name or as the display url.

9.4.4 You may not link to Merchant’s Website from any PPC ad or use redirects that yield the same result. Any PPC link that you use must be directed to an actual web page on Your Channels.

9.5 Coupons.

9.5.1 Merchant may, from time to time, allow Affiliate to advertise a coupon code in relation to Merchant’s products. Any such coupon code will be valid for the products and period of time as determined by Merchant in its sole discretion.

9.5.2 Affiliate may only advertise coupon codes that are provided to Affiliate by the Merchant via the Third-Party Affiliate Platform. Any sales registered through any other coupon code (any coupon code not provided by Merchant via the Third-Party Affiliate Platform) will not be considered as valid. Affiliate will not receive a commission in relation to any coupon code that was not provided by Merchant via the Third-Party Affiliate Program.

9.5.3 Coupons are valid for the term specified by Merchant and Merchant may terminate a coupon offering at any time.

9.5.4 For the avoidance of doubt, you may not advertise coupon codes obtained from our non-affiliate advertising, customer e-mails, paid search, or any other campaign.

9.6 Domain Names. Use of any of our Marks as part of the domain or sub-domain for any of Your Channels or any other social media is strictly prohibited.

9.7 Deceptive Practices. Affiliate shall not transmit any “interstitials,” “Parasiteware,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets”, “deceptive pop-ups and/or pop-unders”, “cookie stuffing” or any other technique or tool that is deemed intrusive or illegal. As used herein “Parasiteware” and “Parasitic Marketing” shall mean any application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) sets commission tracking cookies through loading of Merchant’s Website in IFrames, hidden links and/or automatic pop ups that open Merchant’s Website; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application. As used herein “cookie stuffing” means a technique or method that forces a user's browser to accept a cookie.

10. Grant of Licenses

10.1 Subject to Affiliate’s compliance with all terms and conditions of this Agreement, Affiliate is granted a non-exclusive, non-transferable, limited, revocable right: (i) to use the Links, and access Merchant’s Website through the Links, solely in accordance with the terms of this Agreement, and (ii) to use the Assets that we provide to you in connection with the Links (via the Third-Party Affiliate Platform) solely for purposes of marketing and promoting Merchant and Merchant’s products to visitors and customers.

10.2 You are only entitled to use the Assets if and for so long as you are an active Affiliate in good standing of Merchant’s Program. You agree that (a) all uses of the Assets will be on behalf of Merchant only; (b) you have no right to use any Mark other than as the same are included in the Assets and provided that your use is in compliance with this Agreement; and (c) any and all goodwill associated with use of any of the Marks and any other names, marks and logos of Merchant will inure to the sole benefit of Merchant. You will provide all reasonable assistance to help Merchant in enforcing and protecting its rights in the Marks and Assets.

10.3 Each party agrees not to use the other's proprietary materials (and you agree not to use any of the Assets or Marks) in any manner that is disparaging, misleading, obscene or that otherwise portrays the other party in a negative light.

10.4 Each party reserves all of its respective rights in its proprietary materials. Merchant expressly reserves all of its rights in its Marks, Assets, Merchant Website and other intellectual property, including all intellectual property rights in the foregoing. Other than the limited license granted in this Agreement, Merchant retains all right, title, and interest to its respective rights and no right, title, or interest is transferred hereby.

11. Representations and Warranties

11.1 Each party represents and warrants that it has the right to enter into this Agreement. You represent and warrant that (a) you will comply with the terms of this Agreement; (b) you, Your Channels, and the content made available on Your Channels: (i) do not and will not infringe on any copyright, trademark, patent, trade secret, right of publicity or privacy, or other proprietary right of Merchant or any third party; (ii) are not and will not be fraudulent or misleading; and (iii) shall comply with all applicable local, state, and federal laws and regulations; and (c) you will obtain and maintain all licenses and permits as are required in order to conduct your activities contemplated herein.

11.2 EXCEPT FOR THE FOREGOING WARRANTIES AND THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MERCHANT DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING OR RELATED TO THIS AGREEMENT AND/OR MERCHANT’S PROGRAM. MERCHANT MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO (A) ANY THIRD PARTY (WHICH INCLUDES, BUT IS NOT LIMITED TO THE THIRD-PARTY AFFILIATE PLATFORM PROVIDER) OR ANY SERVICE, POLICY, ACT OR OMISSION OF ANY THIRD PARTY; OR (B) THE MERCHANT’S WEBSITE, ANY PRODUCTS DESCRIBED ON THE MERCHANT’S WEBSITE, MERCHANT’S PROGRAM, ANY LINK, ASSETS OR ANY RESULTS OF PARTICIPATING IN MERCHANT’S PROGRAM. MERCHANT EXPRESSLY DISCLAIMS ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. IN ADDITION, MERCHANT MAKES NO REPRESENTATION THAT THE OPERATION OF THE MERCHANT’S WEBSITE OR ANY LINK WILL BE UNINTERRUPTED OR ERROR-FREE, AND MERCHANT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

12. Limitations of Liability. MERCHANT SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MERCHANT SHALL NOT BE LIABLE FOR ANY SERVICE, POLICY, ACT OR OMISSION ATTRIBUTABLE TO ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, THE THIRD-PARTY AFFILIATE PLATFORM PROVIDER). FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL MERCHANT'S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE MERCHANT’S PROGRAM, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, IN TORT OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OR NEGLIGENCE.

13. Indemnification. You hereby agree to indemnify, defend and hold harmless Merchant, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (all of the foregoing referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any misrepresentation or breach by you of any of the terms of this Agreement, (ii) any claim that our use of your intellectual property or proprietary information infringes a third party’s rights, or (iii) any claim related to any of Your Channels, including, without limitation, content therein not provided by us.

14. Confidentiality. Each party acknowledges that in its performance of its obligations hereunder one party (the “disclosing party”) may make available to the other party (the “receiving party”) certain confidential and proprietary information concerning the disclosing party’s business, manufacturing, sourcing and/or customers, including, without limitation, personally identifiable information (the “Confidential Information”). Any Confidential Information provided by you must be identified as confidential in writing at the time it is disclosed to Merchant or within a reasonable period of time following disclosure to Merchant. The receiving party shall not disclose any Confidential Information of the disclosing party to any person or entity other than the receiving party’s employees or contractors who are bound to protect the confidentiality thereof, shall use such information only for the purposes contemplated hereby, and shall otherwise protect such information from disclosure to others with the same degree of care (but in no event less than a reasonable degree of care) accorded to its own proprietary information of a similar nature. This obligation shall not apply to Confidential Information to the extent such information (a) was known by the receiving party prior to its date of disclosure to the receiving party, as evidenced by the prior written records of the receiving party; or (b) is disclosed to the receiving party without an obligation of confidentiality by sources other than the disclosing party rightfully in possession of the Confidential Information and having the right to disclose the Confidential Information; or (c) becomes published or generally known to the public through no fault or omission on the part of the receiving party; or (d) is required to be disclosed by the receiving party to comply with law, provided that the receiving party provides to the other party prior notice of such disclosure (if permitted by law or regulatory authority) and a reasonable opportunity to contest such disclosure. Upon the termination or expiration of this Agreement, or upon the request of the disclosing party, the receiving party shall promptly return or destroy all Confidential Information in its possession (and all copies, extracts, and summaries thereof) and shall provide the disclosing party with written confirmation of such return or destruction upon request.

15. Miscellaneous

15.1 Where notice to a party is required pursuant to this Agreement, notice shall be delivered via email to the email address on record with the Third-Party Affiliate Platform for such party. Notice to Merchant shall be sent to contact@marigoldliving.com. Either party may change their email address for receipt of notice by notifying the other party of such change via email. Notice shall be deemed delivered the day that it is sent provided that it is received during regular business hours (9am to 5pm M-F not including bank holidays) of the receiving party. Notice delivered outside of regular business hours of the receiving party shall be deemed delivered on the receiving party’s next business day.

15.2 You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Merchant. You will have no authority to make or accept any offers or representations on our behalf or bind or commit Merchant. You will not make any statement, whether on any of Your Channels or otherwise, that reasonably would contradict anything in this Section.

15.3 You may not assign any of your rights or obligations under this Agreement to any party without Merchant’s written consent.

15.4 In the event of a breach attributable to you of any term of this Agreement, Merchant may seek money damages in addition to terminating this Agreement and/or your Affiliate account. You acknowledge and agree that a breach by you may result in harm to Merchant that money damages will not adequately compensate. In such circumstances, Merchant has the right to seek injunctive, specific performance and other equitable relief, in any event without prejudice to any other rights and remedies that Merchant may have.

15.5 This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof.

15.6 You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

15.7 This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written. Sections 1-6, 7.2, 8, 9, 10.2, 10.3, 10.4 and 11-15 of this Agreement shall survive expiration or termination of this Agreement.

15.8 The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.

15.9 All definitions in this Agreement apply to both their singular and plural forms, as the context may require.

15.10 If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

Updated November 20, 2024.