Arbor
Program Terms
This Affiliate Marketing Agreement (“Agreement”) is effective as of the date your application for the Arbor affiliate program is approved through ShareASale.com, Inc. by and between Arbor Energy Holdings Inc. (“Company”) and you (“Affiliate”). In consideration of the mutual covenants contained in this Agreement, and for other valuable consideration, the sufficiency of which is hereby acknowledged by Company and Affiliate (each a “party”, together “the parties”), the parties hereby agree as follows:
1. Promotion of Platform. Company owns and provides an Internet-based platform located on the Internet at www.joinarbor.com (“Company Site”), together with all of the technology, source code, functionality, documentation, and other elements embodied in or associated with such platform (collectively, the “Platform”). Subject to all of the terms and conditions of this Agreement, Affiliate agrees to market and promote the Platform by establishing, on the website or websites owned by Affiliate, such webpages, ad widgets, hyperlinks, interstitial sites or webpages, and such other elements designed to direct consumers to the Platform (hereinafter “Marketing Elements”). Affiliate’s efforts to market and promote the Platform shall be performed by Affiliate hereunder at Affiliate’s own expense. Affiliate shall not be entitled to expense reimbursement under this Agreement, nor to any other compensation other than the fee(s) payable under the express terms of this Agreement.
2. Fees. In consideration for Affiliate’s promotion of the Platform, Company shall pay Affiliate the fee(s) and any other amounts specified in the ShareASale.com program terms, the terms of which shall be expressly incorporated by reference and subject to the terms of this Agreement. Fees shall be paid for all valid conversions via the ShareASale.com platform.
3. Marketing Restrictions.
a. Content Restrictions. Any and all Marketing Elements or other advertising not created and provided to Affiliate by Company must be approved by Company in writing before being published by Affiliate. Affiliate agrees to comply with all search engines editorial guidelines, as applicable. Affiliate-created Marketing Elements and other advertising provided through the Platform shall not (a) contain (or lead to any website or other destination that contains) any false, inaccurate, misleading, deceptive, defamatory, obscene, sexually explicit, discriminatory, harmful, offensive or illegal content; (b) promote violence, hatred, racism or the commission of any crime, (c) be directed towards minors under the age of 16; and/or (d) infringe upon the intellectual property rights of any third party. Affiliate shall also comply with the restrictions set forth in Exhibit A, attached hereto and hereby expressly incorporated by reference herein. Company shall have the right to request that Affiliate immediately remove any Marketing Elements or other advertising that it believes, in its sole and absolute discretion, violates this Section.
b. Incentive Restrictions. Unless otherwise agreed to in writing by Company, Affiliate shall not, directly or indirectly, (i) offer any consideration, reward, or incentive (including any money, rebate, discount, points, rewards, prizes, or other benefit) to direct any person or entity to the Platform, or (ii) use any automated or other artificially generated means to direct any person or entity to the Platform, whether by way of a robot or software program or otherwise. Affiliate shall not be entitled to any fees generated in violation of this Section.
c. Anti-Spam Policy. Affiliate must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time, Company may request, prior to Affiliate sending emails containing links to the Company Site, that Affiliate submits the final version of such email to Company for approval and upon receiving written approval from Company of such email the email may be transmitted to third parties. It is solely Affiliate’s obligation to ensure that the email complies with the Act. Affiliate agrees not to rely upon Company's approval of such email for compliance with the Act or assert any claim that Affiliate is in compliance with the Act based upon Company's approval.
4. Intellectual Property. All rights, title, and interest in the Platform and all Marketing Elements provided by the Company to Affiliate shall at all times remain solely and exclusively the property of Company . Nothing in this Agreement grants to Affiliate any rights of ownership, or partial ownership, in the Platform, Marketing Elements provided by the Company to Affiliate, or in any of Company’s proprietary property or works, copyrights, patents, patent applications, trade secrets, trade names, trademarks, service marks or other intellectual property (collectively “Company Intellectual Property”). Any and all rights not expressly granted to Affiliate by Company in this Agreement are hereby reserved by Company. Affiliate shall not, and shall not allow any of its employees, agents, representatives, or any third-party, to copy, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile any of Company ’s Intellectual Property including, but not limited to, the Platform in any manner or for any purpose including, but not limited to, for the purpose of building or marketing a similar or competitive product or platform or for the purpose of obtaining unauthorized access to Company's technology, source code, functionality, schema, or other intellectual property.
5. Limited License.
a. Marketing Elements License. Subject to Affiliate’s compliance with the terms and conditions of this Agreement, Company grants to Affiliate a non-exclusive, limited, nonexclusive, nontransferable, fully paid up, royalty-free, worldwide right and license to copy, transmit, display and publish any Marketing Elements or other advertising incorporating any Company Intellectual Property for purposes of promotion of the Platform. This license shall immediately terminate upon expiration or termination of this Agreement.
b. Marks Guidelines. Affiliate may not alter Company’s trademarks (“Marks”) in any way, without the prior written approval of Company. All Marks must be reproduced exactly as they are provided to Affiliate. Affiliate may not use the Marks in close proximity to other third party trademarks or designs. Affiliate agrees to take no action contrary to Company’s ownership of and rights in its Marks both during the term of this Agreement and thereafter. Affiliate’s use of the Marks shall inure solely to the benefit of Company. Affiliate shall exercise care in the use of the Marks so as not to indicate to the public that Affiliate is a division of or otherwise related to Company (other than as an affiliate under this Agreement) or that Company has tested, approved, endorsed, certified or warranted Affiliate’s products or services. Affiliate further agrees to not adopt as its own trademark or use any word(s) or design(s) confusingly similar to the Marks.
c. Limited License to Affiliate Trademarks. Affiliate hereby grants to Company a non-exclusive, non-transferable, royalty free, and limited right during the term of this Agreement to use Affiliate’s trademarks to promote the parties’ relationship as described in the Agreement, including but not limited to use of Affiliate’s trademarks on the Company website and in promotional materials about the parties’ relationship
6. Confidential Information. As used in this Agreement, “Confidential Information” means: (a) information pertaining to the Platform including all intellectual property embodied therein; (b) business and proprietary designs and products related to the Platform or either party’s business and any and all related fees, trade secrets, vendors, business affiliates, customers, employees, contractors or subcontractors, business agreements, marketing and distribution plans, market research, business methods and techniques, finances, information systems, business operations, business plans, and business strategies of either party; (c) information that is marked “confidential”, “proprietary” or in like words, or that is summarized in writing as being confidential prior to, or promptly after, disclosure by either party to the other party; and (d) any and all research, designs, ideas, concepts, and technology embodied in any of the foregoing. Either party (as applicable, the “Disclosing Party”) may disclose to the other party (as applicable, the “Receiving Party”) such Confidential Information as the Disclosing Party determines is necessary and appropriate to carry out the terms of this Agreement. Receiving Party shall hold such Confidential Information in confidence and shall safeguard it in at least the same manner as a prudent business person would safeguard his or her own confidential information of a similar nature. Receiving Party shall not, and shall not permit any of its officers, directors, employees, contractors, subcontractors, agents, associates, advisors, or other representatives (collectively, “Agents”) to, directly or indirectly, report, publish, distribute, disclose, or otherwise disseminate the Confidential Information of Disclosing Party, or any portion thereof, to any third party, without such Disclosing Party’s express prior consent. Receiving Party shall not use, nor permit any of its Agents to use, the Confidential Information of Disclosing Party, or any portion thereof, for the benefit of Receiving Party, its Agents, or any third party, or for any purpose except as necessary to carry out the terms of this Agreement or as expressly authorized in writing by Disclosing Party. Disclosure of Confidential Information of a Disclosing Party by the Receiving Party to an Agent must be limited to disclosure to only those Agents who have a business need to know, receive, or examine the Confidential Information to enable such Receiving Party to carry out the terms of this Agreement and who have agreed in writing to confidentiality terms no less restrictive than the terms contained herein. Nothing in this Agreement shall constitute a representation, warranty, or assurance as to the accuracy or completeness of any Confidential Information. If a Receiving Party attempts to use or disclose any of the Confidential Information in violation of this Agreement, then in addition to other available remedies, the Disclosing Party shall have the right to injunctive relief enjoining any such attempt, it being acknowledged that legal remedies are inadequate in such circumstances. A Receiving Party shall promptly cease all use of the Confidential Information of the Disclosing Party and shall promptly destroy or return all such Confidential Information in its possession, upon the termination of this Agreement. Notwithstanding the foregoing, Confidential Information that has been incorporated into other documents for the internal use of a Receiving Party in connection with this Agreement need not be returned or destroyed, but the Receiving Party shall continue to comply with the provisions of this Agreement regarding such Confidential Information. Each party’s obligations herein shall survive termination of this Agreement.
7. Consumer Data. To the extent Company shares any personally identifiable information collected by Company on the Platform to enable Affiliate to pay out any qualified incentives to an end-user, Affiliate shall not retain, use or disclose such personally identifiable information for any purpose other than for the specific purpose of paying the incentives contemplated under this Agreement.
8. Affiliate Marketing Notice. Affiliate shall comply with all applicable rules and regulations relating to affiliate marketing, including, but not limited to, posting a conspicuous notice on the Platform in compliance with U.S. Federal Trade Commission Rules related to the compensation Affiliate receives from Company under this Agreement.
9. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY TYPE OR ANY KIND ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITIES RESULTING FROM A PARTY’S BREACH OF SECTIONS 4, 6 AND A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE MONETARY CONSIDERATION PAYABLE TO AFFILIATE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $500.00. THESE TERMS SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. Indemnity. Each party (as applicable, the “Indemnitor”) shall indemnify, defend, and hold harmless the other party (as applicable, the “Indemnitee”), including the Indemnitee's affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all losses, obligations, costs, liabilities, damages, settlements, judgments, or any other costs or expenses including, but not limited to, reasonable attorneys’ fees and expenses, which are asserted against, imposed upon, or incurred or suffered by such Indemnified Parties, or any of them, in connection with any third party actions, suits, causes of action, claims, or demands, which arise out of, or result from, the Indemnitor’s, its affiliates’ or any of their respective directors’, officers’, employees’, or agents’: (a) failure to properly discharge their duties or obligations under, or to observe or comply with all terms, conditions, and limitations contained in this Agreement; (b) breach or failure to observe any covenant, condition, warranty, representation, or limitation contained in this Agreement; (c) violation of any law, rule, regulation, order, or other legal authority including, but not limited to, applicable data privacy rights; (d) infringement of any third party Intellectual Property Right, or (e) negligence, gross negligence, or willful or wanton behavior. All rights and remedies of the Indemnified Parties hereunder shall be cumulative and in addition to all other rights and remedies available at law or in equity. These terms survive the termination of this Agreement.
11. Term. This Agreement shall be effective as of the date it is executed by both parties and shall remain in effect until terminated by either party or by the mutual agreement of the parties.
12. Termination. Either party may terminate this Agreement for any reason effective one (1) day after prior written notice is sent to the other party. In the event of termination, Affiliate shall (a) be entitled to payment for all fees earned pursuant to the terms of Section 2 of this Agreement through the effective date of the termination of this Agreement, and (b) immediately remove any Platform-related Marketing Elements and any Company Intellectual Property from its websites and related mobile applications.
13. Affiliate Marketing Notice. At all times during the term of this Agreement, Affiliate shall comply with all applicable rules and regulations relating to affiliate marketing, including, but not limited to, posting a conspicuous notice on its website or websites in compliance with U.S. Federal Trade Commission Rules related to the compensation Affiliate receives as an affiliate of Company .
14. Disclaimer of Warranty. Company expressly disclaims any and all representations, warranties or conditions of any kind, express or implied, including, but not limited to, implied warranties of fitness for a particular purpose and merchantability.
15. Miscellaneous.
a. Agency. The parties are acting under this Agreement as independent contractors of each other and no party is to be considered an agent, partner, joint venturer, employer, or employee of the other party for any purpose.
b. Compliance with Applicable Laws. Company and Affiliate agree that they shall each comply with all Applicable Laws that are binding on the performance of its obligations under this agreement. “Applicable Laws” means any statute, law, rule, regulation, ordinance, code, directive or order of any governmental authority that is binding a party’s performance of its obligations under this Agreement. “Applicable Law” expressly includes, but is not limited to, 15 U.S. Code c. 103 §§ 7701-7713, Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”), 47 U.S.C. § 227 Restrictions on Use of Telephone Equipment (“TCPA”), as amended, 15 U.S.C. §§ 6151-6155 The Do-Not-Call Implementation Act and 16 C.F.R. § 310.4(b)(1)(iii) The Federal Trade Commission Telemarketing Sales Rule (together, the “Do-Not-Call Registry”), as amended, the Gramm-Leach Bliley Act, and any and all state and federal laws regarding deceptive trade practices, and all rules and regulations promulgated under any of the foregoing.
c. Severability. Any term in this Agreement that is unenforceable or illegal shall be severed from this Agreement and shall not affect the enforceability of other terms of this Agreement.
d. Modification. Except as otherwise expressly provided in this Agreement, this Agreement may not be modified or amended, in whole or in part, except by a writing signed by both parties.
e. Waiver. No waiver of any right or power hereunder, at one or more times, shall be deemed a waiver or relinquishment of such right or power at any other time or times.
f. Governing Law. This Agreement shall be interpreted, construed, governed, and enforced according to the laws of the State of Delaware, without reference to its conflicts of laws, rules, or choice of laws principles.
g. Assignment. Neither party may assign or transfer (by operation of law or otherwise) to any other person or entity this Agreement or any of the rights created hereunder, or delegate to any other person or entity the performance by a party of any of such party’s duties, covenants, or obligations created hereunder without the other party’s prior written consent. Such consent shall not be unreasonably withheld. Such consent is not required, however, for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale, or other disposition of substantially all the assets of the assigning party’s business.
h. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective permitted assigns and successors.
i. Force Majeure. Neither party shall be liable or responsible for any delays in performance under this Agreement as a result of any event beyond its reasonable control including, without limitation, adverse weather conditions, Internet outage or interruption of service, governmental actions in response to a health crisis or other domestic or international crisis, telecommunications or power outages, denial of service attacks, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war, or acts of God.
j. Interpretation. Section and paragraph headings in this Agreement are for reference purposes only and do not limit the scope or extent of such section or paragraph.
k. Notices. All notices referenced in this Agreement shall be made in writing and sent to the address(es) designated below. All legal notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: (i) registered or certified first class mail, postage prepaid; or (ii) recognized courier delivery. All non-legal notices or communications may be sent by the parties by electronic mail to the email addresses designated below.
l. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute but one agreement. Either party may execute this Agreement with either a manual or digital signature. “Digital signature” means an electronic identifier that is intended by the party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
m. Entire Agreement. Except as otherwise expressly provided by this Agreement, this Agreement contains the entire agreement between the parties with respect to the subject matter contemplated herein and supersedes all prior oral and written discussions, agreements, and arrangements concerning such subject matter.
EXHIBIT A
Prohibited Activities with Respect to Ads
With respect to any advertising provided through the Platform to end users, including the results delivered to end users from clicking on such advertising (collectively an “Ad” or “Ads”), Affiliate is prohibited from engaging in any activities prohibited under any of Company ’s agreements with the providers of such Ads. These prohibited activities include, but are not limited to:
1. Displaying Ads on mobile devices not authorized by Company as mobile Ads.
2. Displaying Ads without prior authorization from Company on error pages, on registration pages, on thank you pages, or in emails.
3. Enabling the display of any Ad other than in connection with a bona fide request from a human end user. This restriction includes, but is not limited to, the use of any automated tool.
4. Removing, obscuring, or otherwise interfering with the display of, or framing, any Ad.
5. Redirecting an end user away from a web page(s) displayed in response to an Ad or otherwise creating responses different than those provided by the Ad at the time the end user clicks on the Ad including, but not limited to, caching such response page(s).
6. Displaying any content between any Ad and any web page accessed by clicking on such Ad.
7. Adding content in addition to any web page accessed by clicking on an Ad (including content displayed in a separate tab or window).
8. Fraudulently generating or modifying clicks on Ads.
9. Displaying Ads on websites containing content that: (a) is obscene, pornographic, profane, fraudulent, libelous, defamatory, abusive or harassing; (b) promotes violence or contains hate speech; (c) infringes upon, or otherwise violates, the proprietary rights of another party; or (d) advertises or promotes any illegal activity, service, or merchandise.
10. Accessing, launching, or activating any Ad through, or incorporating an Ad in, any applications, software code, or websites other than websites or applications approved by Company
11. “Crawling”, “spidering”, indexing, or in any non-transitory manner storing or caching Ads or information displayed or obtained from Ads.
12. Otherwise engaging in any activities with respect to Ads prohibited by Company ’s agreements with providers of Ads of which Affiliate is notified by Company from time to time.
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1. Promotion of Platform. Company owns and provides an Internet-based platform located on the Internet at www.joinarbor.com (“Company Site”), together with all of the technology, source code, functionality, documentation, and other elements embodied in or associated with such platform (collectively, the “Platform”). Subject to all of the terms and conditions of this Agreement, Affiliate agrees to market and promote the Platform by establishing, on the website or websites owned by Affiliate, such webpages, ad widgets, hyperlinks, interstitial sites or webpages, and such other elements designed to direct consumers to the Platform (hereinafter “Marketing Elements”). Affiliate’s efforts to market and promote the Platform shall be performed by Affiliate hereunder at Affiliate’s own expense. Affiliate shall not be entitled to expense reimbursement under this Agreement, nor to any other compensation other than the fee(s) payable under the express terms of this Agreement.
2. Fees. In consideration for Affiliate’s promotion of the Platform, Company shall pay Affiliate the fee(s) and any other amounts specified in the ShareASale.com program terms, the terms of which shall be expressly incorporated by reference and subject to the terms of this Agreement. Fees shall be paid for all valid conversions via the ShareASale.com platform.
3. Marketing Restrictions.
a. Content Restrictions. Any and all Marketing Elements or other advertising not created and provided to Affiliate by Company must be approved by Company in writing before being published by Affiliate. Affiliate agrees to comply with all search engines editorial guidelines, as applicable. Affiliate-created Marketing Elements and other advertising provided through the Platform shall not (a) contain (or lead to any website or other destination that contains) any false, inaccurate, misleading, deceptive, defamatory, obscene, sexually explicit, discriminatory, harmful, offensive or illegal content; (b) promote violence, hatred, racism or the commission of any crime, (c) be directed towards minors under the age of 16; and/or (d) infringe upon the intellectual property rights of any third party. Affiliate shall also comply with the restrictions set forth in Exhibit A, attached hereto and hereby expressly incorporated by reference herein. Company shall have the right to request that Affiliate immediately remove any Marketing Elements or other advertising that it believes, in its sole and absolute discretion, violates this Section.
b. Incentive Restrictions. Unless otherwise agreed to in writing by Company, Affiliate shall not, directly or indirectly, (i) offer any consideration, reward, or incentive (including any money, rebate, discount, points, rewards, prizes, or other benefit) to direct any person or entity to the Platform, or (ii) use any automated or other artificially generated means to direct any person or entity to the Platform, whether by way of a robot or software program or otherwise. Affiliate shall not be entitled to any fees generated in violation of this Section.
c. Anti-Spam Policy. Affiliate must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time, Company may request, prior to Affiliate sending emails containing links to the Company Site, that Affiliate submits the final version of such email to Company for approval and upon receiving written approval from Company of such email the email may be transmitted to third parties. It is solely Affiliate’s obligation to ensure that the email complies with the Act. Affiliate agrees not to rely upon Company's approval of such email for compliance with the Act or assert any claim that Affiliate is in compliance with the Act based upon Company's approval.
4. Intellectual Property. All rights, title, and interest in the Platform and all Marketing Elements provided by the Company to Affiliate shall at all times remain solely and exclusively the property of Company . Nothing in this Agreement grants to Affiliate any rights of ownership, or partial ownership, in the Platform, Marketing Elements provided by the Company to Affiliate, or in any of Company’s proprietary property or works, copyrights, patents, patent applications, trade secrets, trade names, trademarks, service marks or other intellectual property (collectively “Company Intellectual Property”). Any and all rights not expressly granted to Affiliate by Company in this Agreement are hereby reserved by Company. Affiliate shall not, and shall not allow any of its employees, agents, representatives, or any third-party, to copy, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile any of Company ’s Intellectual Property including, but not limited to, the Platform in any manner or for any purpose including, but not limited to, for the purpose of building or marketing a similar or competitive product or platform or for the purpose of obtaining unauthorized access to Company's technology, source code, functionality, schema, or other intellectual property.
5. Limited License.
a. Marketing Elements License. Subject to Affiliate’s compliance with the terms and conditions of this Agreement, Company grants to Affiliate a non-exclusive, limited, nonexclusive, nontransferable, fully paid up, royalty-free, worldwide right and license to copy, transmit, display and publish any Marketing Elements or other advertising incorporating any Company Intellectual Property for purposes of promotion of the Platform. This license shall immediately terminate upon expiration or termination of this Agreement.
b. Marks Guidelines. Affiliate may not alter Company’s trademarks (“Marks”) in any way, without the prior written approval of Company. All Marks must be reproduced exactly as they are provided to Affiliate. Affiliate may not use the Marks in close proximity to other third party trademarks or designs. Affiliate agrees to take no action contrary to Company’s ownership of and rights in its Marks both during the term of this Agreement and thereafter. Affiliate’s use of the Marks shall inure solely to the benefit of Company. Affiliate shall exercise care in the use of the Marks so as not to indicate to the public that Affiliate is a division of or otherwise related to Company (other than as an affiliate under this Agreement) or that Company has tested, approved, endorsed, certified or warranted Affiliate’s products or services. Affiliate further agrees to not adopt as its own trademark or use any word(s) or design(s) confusingly similar to the Marks.
c. Limited License to Affiliate Trademarks. Affiliate hereby grants to Company a non-exclusive, non-transferable, royalty free, and limited right during the term of this Agreement to use Affiliate’s trademarks to promote the parties’ relationship as described in the Agreement, including but not limited to use of Affiliate’s trademarks on the Company website and in promotional materials about the parties’ relationship
6. Confidential Information. As used in this Agreement, “Confidential Information” means: (a) information pertaining to the Platform including all intellectual property embodied therein; (b) business and proprietary designs and products related to the Platform or either party’s business and any and all related fees, trade secrets, vendors, business affiliates, customers, employees, contractors or subcontractors, business agreements, marketing and distribution plans, market research, business methods and techniques, finances, information systems, business operations, business plans, and business strategies of either party; (c) information that is marked “confidential”, “proprietary” or in like words, or that is summarized in writing as being confidential prior to, or promptly after, disclosure by either party to the other party; and (d) any and all research, designs, ideas, concepts, and technology embodied in any of the foregoing. Either party (as applicable, the “Disclosing Party”) may disclose to the other party (as applicable, the “Receiving Party”) such Confidential Information as the Disclosing Party determines is necessary and appropriate to carry out the terms of this Agreement. Receiving Party shall hold such Confidential Information in confidence and shall safeguard it in at least the same manner as a prudent business person would safeguard his or her own confidential information of a similar nature. Receiving Party shall not, and shall not permit any of its officers, directors, employees, contractors, subcontractors, agents, associates, advisors, or other representatives (collectively, “Agents”) to, directly or indirectly, report, publish, distribute, disclose, or otherwise disseminate the Confidential Information of Disclosing Party, or any portion thereof, to any third party, without such Disclosing Party’s express prior consent. Receiving Party shall not use, nor permit any of its Agents to use, the Confidential Information of Disclosing Party, or any portion thereof, for the benefit of Receiving Party, its Agents, or any third party, or for any purpose except as necessary to carry out the terms of this Agreement or as expressly authorized in writing by Disclosing Party. Disclosure of Confidential Information of a Disclosing Party by the Receiving Party to an Agent must be limited to disclosure to only those Agents who have a business need to know, receive, or examine the Confidential Information to enable such Receiving Party to carry out the terms of this Agreement and who have agreed in writing to confidentiality terms no less restrictive than the terms contained herein. Nothing in this Agreement shall constitute a representation, warranty, or assurance as to the accuracy or completeness of any Confidential Information. If a Receiving Party attempts to use or disclose any of the Confidential Information in violation of this Agreement, then in addition to other available remedies, the Disclosing Party shall have the right to injunctive relief enjoining any such attempt, it being acknowledged that legal remedies are inadequate in such circumstances. A Receiving Party shall promptly cease all use of the Confidential Information of the Disclosing Party and shall promptly destroy or return all such Confidential Information in its possession, upon the termination of this Agreement. Notwithstanding the foregoing, Confidential Information that has been incorporated into other documents for the internal use of a Receiving Party in connection with this Agreement need not be returned or destroyed, but the Receiving Party shall continue to comply with the provisions of this Agreement regarding such Confidential Information. Each party’s obligations herein shall survive termination of this Agreement.
7. Consumer Data. To the extent Company shares any personally identifiable information collected by Company on the Platform to enable Affiliate to pay out any qualified incentives to an end-user, Affiliate shall not retain, use or disclose such personally identifiable information for any purpose other than for the specific purpose of paying the incentives contemplated under this Agreement.
8. Affiliate Marketing Notice. Affiliate shall comply with all applicable rules and regulations relating to affiliate marketing, including, but not limited to, posting a conspicuous notice on the Platform in compliance with U.S. Federal Trade Commission Rules related to the compensation Affiliate receives from Company under this Agreement.
9. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY TYPE OR ANY KIND ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITIES RESULTING FROM A PARTY’S BREACH OF SECTIONS 4, 6 AND A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE MONETARY CONSIDERATION PAYABLE TO AFFILIATE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $500.00. THESE TERMS SURVIVE THE TERMINATION OF THIS AGREEMENT.
10. Indemnity. Each party (as applicable, the “Indemnitor”) shall indemnify, defend, and hold harmless the other party (as applicable, the “Indemnitee”), including the Indemnitee's affiliates and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against any and all losses, obligations, costs, liabilities, damages, settlements, judgments, or any other costs or expenses including, but not limited to, reasonable attorneys’ fees and expenses, which are asserted against, imposed upon, or incurred or suffered by such Indemnified Parties, or any of them, in connection with any third party actions, suits, causes of action, claims, or demands, which arise out of, or result from, the Indemnitor’s, its affiliates’ or any of their respective directors’, officers’, employees’, or agents’: (a) failure to properly discharge their duties or obligations under, or to observe or comply with all terms, conditions, and limitations contained in this Agreement; (b) breach or failure to observe any covenant, condition, warranty, representation, or limitation contained in this Agreement; (c) violation of any law, rule, regulation, order, or other legal authority including, but not limited to, applicable data privacy rights; (d) infringement of any third party Intellectual Property Right, or (e) negligence, gross negligence, or willful or wanton behavior. All rights and remedies of the Indemnified Parties hereunder shall be cumulative and in addition to all other rights and remedies available at law or in equity. These terms survive the termination of this Agreement.
11. Term. This Agreement shall be effective as of the date it is executed by both parties and shall remain in effect until terminated by either party or by the mutual agreement of the parties.
12. Termination. Either party may terminate this Agreement for any reason effective one (1) day after prior written notice is sent to the other party. In the event of termination, Affiliate shall (a) be entitled to payment for all fees earned pursuant to the terms of Section 2 of this Agreement through the effective date of the termination of this Agreement, and (b) immediately remove any Platform-related Marketing Elements and any Company Intellectual Property from its websites and related mobile applications.
13. Affiliate Marketing Notice. At all times during the term of this Agreement, Affiliate shall comply with all applicable rules and regulations relating to affiliate marketing, including, but not limited to, posting a conspicuous notice on its website or websites in compliance with U.S. Federal Trade Commission Rules related to the compensation Affiliate receives as an affiliate of Company .
14. Disclaimer of Warranty. Company expressly disclaims any and all representations, warranties or conditions of any kind, express or implied, including, but not limited to, implied warranties of fitness for a particular purpose and merchantability.
15. Miscellaneous.
a. Agency. The parties are acting under this Agreement as independent contractors of each other and no party is to be considered an agent, partner, joint venturer, employer, or employee of the other party for any purpose.
b. Compliance with Applicable Laws. Company and Affiliate agree that they shall each comply with all Applicable Laws that are binding on the performance of its obligations under this agreement. “Applicable Laws” means any statute, law, rule, regulation, ordinance, code, directive or order of any governmental authority that is binding a party’s performance of its obligations under this Agreement. “Applicable Law” expressly includes, but is not limited to, 15 U.S. Code c. 103 §§ 7701-7713, Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”), 47 U.S.C. § 227 Restrictions on Use of Telephone Equipment (“TCPA”), as amended, 15 U.S.C. §§ 6151-6155 The Do-Not-Call Implementation Act and 16 C.F.R. § 310.4(b)(1)(iii) The Federal Trade Commission Telemarketing Sales Rule (together, the “Do-Not-Call Registry”), as amended, the Gramm-Leach Bliley Act, and any and all state and federal laws regarding deceptive trade practices, and all rules and regulations promulgated under any of the foregoing.
c. Severability. Any term in this Agreement that is unenforceable or illegal shall be severed from this Agreement and shall not affect the enforceability of other terms of this Agreement.
d. Modification. Except as otherwise expressly provided in this Agreement, this Agreement may not be modified or amended, in whole or in part, except by a writing signed by both parties.
e. Waiver. No waiver of any right or power hereunder, at one or more times, shall be deemed a waiver or relinquishment of such right or power at any other time or times.
f. Governing Law. This Agreement shall be interpreted, construed, governed, and enforced according to the laws of the State of Delaware, without reference to its conflicts of laws, rules, or choice of laws principles.
g. Assignment. Neither party may assign or transfer (by operation of law or otherwise) to any other person or entity this Agreement or any of the rights created hereunder, or delegate to any other person or entity the performance by a party of any of such party’s duties, covenants, or obligations created hereunder without the other party’s prior written consent. Such consent shall not be unreasonably withheld. Such consent is not required, however, for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale, or other disposition of substantially all the assets of the assigning party’s business.
h. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective permitted assigns and successors.
i. Force Majeure. Neither party shall be liable or responsible for any delays in performance under this Agreement as a result of any event beyond its reasonable control including, without limitation, adverse weather conditions, Internet outage or interruption of service, governmental actions in response to a health crisis or other domestic or international crisis, telecommunications or power outages, denial of service attacks, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, war, or acts of God.
j. Interpretation. Section and paragraph headings in this Agreement are for reference purposes only and do not limit the scope or extent of such section or paragraph.
k. Notices. All notices referenced in this Agreement shall be made in writing and sent to the address(es) designated below. All legal notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: (i) registered or certified first class mail, postage prepaid; or (ii) recognized courier delivery. All non-legal notices or communications may be sent by the parties by electronic mail to the email addresses designated below.
l. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute but one agreement. Either party may execute this Agreement with either a manual or digital signature. “Digital signature” means an electronic identifier that is intended by the party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
m. Entire Agreement. Except as otherwise expressly provided by this Agreement, this Agreement contains the entire agreement between the parties with respect to the subject matter contemplated herein and supersedes all prior oral and written discussions, agreements, and arrangements concerning such subject matter.
EXHIBIT A
Prohibited Activities with Respect to Ads
With respect to any advertising provided through the Platform to end users, including the results delivered to end users from clicking on such advertising (collectively an “Ad” or “Ads”), Affiliate is prohibited from engaging in any activities prohibited under any of Company ’s agreements with the providers of such Ads. These prohibited activities include, but are not limited to:
1. Displaying Ads on mobile devices not authorized by Company as mobile Ads.
2. Displaying Ads without prior authorization from Company on error pages, on registration pages, on thank you pages, or in emails.
3. Enabling the display of any Ad other than in connection with a bona fide request from a human end user. This restriction includes, but is not limited to, the use of any automated tool.
4. Removing, obscuring, or otherwise interfering with the display of, or framing, any Ad.
5. Redirecting an end user away from a web page(s) displayed in response to an Ad or otherwise creating responses different than those provided by the Ad at the time the end user clicks on the Ad including, but not limited to, caching such response page(s).
6. Displaying any content between any Ad and any web page accessed by clicking on such Ad.
7. Adding content in addition to any web page accessed by clicking on an Ad (including content displayed in a separate tab or window).
8. Fraudulently generating or modifying clicks on Ads.
9. Displaying Ads on websites containing content that: (a) is obscene, pornographic, profane, fraudulent, libelous, defamatory, abusive or harassing; (b) promotes violence or contains hate speech; (c) infringes upon, or otherwise violates, the proprietary rights of another party; or (d) advertises or promotes any illegal activity, service, or merchandise.
10. Accessing, launching, or activating any Ad through, or incorporating an Ad in, any applications, software code, or websites other than websites or applications approved by Company
11. “Crawling”, “spidering”, indexing, or in any non-transitory manner storing or caching Ads or information displayed or obtained from Ads.
12. Otherwise engaging in any activities with respect to Ads prohibited by Company ’s agreements with providers of Ads of which Affiliate is notified by Company from time to time.
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