This Agreement applies as between Happy Wolf. (“Advertiser”) and Social Media Influencer (“Media Partner”) and supersedes in whole Schedule 1 of the ShareASale Master Campaign Agreement.
1. Definitions
1.1 Any defined terms used herein shall (unless otherwise stated) have the same meaning as set forth in
the Master Campaign Agreement.
2. Intellectual Property and Confidential Information
2.1 License. For the purposes only of the Media Partner providing its Services, the Advertiser grants to the Media Partner (and its permitted users) for the duration of this Agreement a non-exclusive, non- transferable, world-wide, royalty-free license to use the advertising content (“Creative”), including, but not limited to, Advertiser’s trademark(s), supplied by the Advertiser through the Platform to the extent necessary only for the Media Partner to perform its obligations under this Agreement, including each accompanying Electronic Insertion Order (EIO).
2.2 Misuse of Creative: The Parties acknowledge and agree that if the Advertiser notifies Media Partner of misuse of its Creative by the Media Partner then the Media Partner shall take immediate corrective action.
2.3 Intellectual Property: “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals). All Intellectual Property existing prior to the commencement date of each EIO shall belong to the Party that owned such rights immediately prior to such date. Each Party acknowledges and agrees that it shall not acquire or claim any title to the other Party’s Intellectual Property.
2.4 Protection of Intellectual Property: Media Partner shall indicate Advertiser’s ownership of the Intellectual Property whenever Media Partner uses it in connection with the promotion, advertising, or sale of Advertiser’s products and services. Media Partner acknowledges Advertiser’s exclusive right, title, and interest in and to the Intellectual Property and will not do anything that will in any way impair or tend to impair any part of Advertiser’s right, title and interest. In connection with the use of the Intellectual Property, Media Partner will not represent that it has any ownership in the property or in its registration, will not pass itself off as the official website of Advertiser, and will not otherwise promote itself in a way which can confuse or mislead third parties into thinking Media Partner is Advertiser; this includes, without limitation, using ad copy that represents itself as a corporate ad or official site, or copying or mimicking any of the Advertiser web pages. Use of the Intellectual Property by Media Partner will not create any right, title, or interest in or to the property in favor of Media Partner.
2.5 Confidential Information. "Confidential Information" means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential
Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to it, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.
3. Marketing and Promotion.
3.1 Promotional Methods. Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser. Unless explicitly authorized in an EIO, Media Partner shall not promote Advertiser using the following means:
1. a) Provision of leads obtained other than through intended consumer (“End User”) action (e.g. through the use of phone books, or similar such compilations of personal data);
2. b) Use of fake redirects, automated software, or other mechanisms to generate Actions; or
3. c) Actions that are caused that are not in good faith, such as those using any device, robot,
Iframes or hidden frames.
4. d) Prohibited Search Engine Marketing (SEM) Ad Copy Content. Media Partners shall not use
the word “free” in any paid search headlines, titles or ad copy to state or imply that a service
or product from Advertiser, other than shipping, is available through an affiliate at zero cost.
5. e) Prohibited SEM Display URL Content. Media Partner shall not use any of Advertiser’s
trademarks, including but not limited to product and manufacturer names, in the main URL or
sub-domain without prior written approval from Advertiser.
6. f) Prohibited Website Domain and URL Keywords. Media Partner shall not employ any so-
called “fat-finger” domains or typo-squatters redirecting web traffic to Media Partner’s link without first notifying Advertiser of the use of such domains and registration information pertaining to such domains. A typo-squatter or fat-finger domain is any domain that amounts to a misspelling of any registered or unregistered Advertiser trademark. Examples of these types of misspelled domains, include, but are not limited to the following: happywolfsnack.com, happywolves.com, and so forth.
7. g) Protected SEM Bidding Keyword. Bidding on Happy Wolf trademarks and branded keywords is prohibited. Such branded keywords/trademarks include, but are not limited to: Happy Wolf, Happy Wolf Snacks, Happy Wolf Fridge-Fresh Bars. Bidding on trademark plus terms (exact keyword matches used in combination with a general term such as: coupon, discount, offer) may be allowed, but only with prior written approval by Advertiser.
8. h) Search Marketing Publishing. Bidding on any keyword that is directed to a landing page containing another Media Partner’s link is not permitted on search engines outside of the United States. Media Partners found to be in violation of any of these search guidelines risk immediate expulsion from the program and reversal of any payments.
9. i) Prohibited Direct Linking. Use of display URL is prohibited.
If Media Partners intend to use incentives to promote Advertiser and procure clicks, leads or sales, Media Partner is required to notify Advertiser prior to executing an EIO with Advertiser, and Media Partner’s use of incentives must be in a bona fide way.
3.2 Disclosures: Media Partner will tell the truth in its advertising and not mislead consumers. Any claims or representations made by Media Partner in its advertisements must be substantiated. Media Partner must clearly and conspicuously disclose that the ad is sponsored. Examples of acceptable disclosures include, but may not be limited to:
• For sponsored Instagram posts, using hashtags such as #sponsored, #spon, #ad, or #paid help consumers distinguish between paid or non-paid posts
• For sponsored blog posts, including the verbiage "brought to you by," "sponsored by," "in partnership with," or "thanks to" or tag sponsored blog posts as "sponsored" or "collaborations."
• For sponsored YouTube videos, calling out the sponsor (whether verbally, visually, or both) within the start of the video and writing a sponsorship statement at the top of the video description.
4. Compensation
4.1 Advertiser will pay Media Partner in accordance with Insertion Order: Happy Wolf
Terms (50094).
4.2 Tracking Actions and Calculating Payouts: Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by ShareASale. ShareASale shall aggregate payments due from Advertisers to the Media Partner and make payments to the Media Partner in accordance with each EIO. If tracking is disabled as a result of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Media Partner then the Advertiser shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors.
4.3 Chargebacks: An Action can be cancelled or returned by the Advertiser (“Chargeback”) if: (a) the Action is incomplete; (b) if a customer has cancelled or returns an Action; (c) if the Action has been made fraudulently or in an otherwise non-bona fide manner; (d) if the Action is carried out by a person who is outside the area serviced by the Advertiser; or (e) if the Advertiser is unable to ship goods to a customer in relation to the Action. Each EIO shall state the period of time within which the Advertiser may apply a Chargeback.
5. Representations, Disclaimers and Indemnification
5.1 Representations and Warranties:
(a) Each Party warrants, represents and undertakes to the other Party in relation to each EIO that:
(i) it has the full power and authority to carry out the actions contemplated under each EIO;
(ii) its entry into and performance of its obligations under the terms of the EIO shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party;
(iii) in relation to all EIOs and at all times in using the Platform it shall comply fully with any and all applicable Laws.
(b) The Media Partner represents and warrants to the Advertiser that the Services shall be performed in a manner consistent with professional industry standards and with reasonable skill and care and in accordance with all applicable laws and regulations
5.2 Indemnification: Subject to Section 5.3, each party (an “indemnifying party”) will defend (or settle), indemnify and hold harmless at its expense, any action brought against the other party (an “indemnified party”) by a third party to the extent that it is based upon a claim resulting from a breach of this Agreement or any Statement of Work by the indemnifying party or from the negligent acts or willful misconduct of the indemnifying party or its personnel hereunder. The indemnifying party will also will pay any reasonable, direct, out-of-pocket costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against the indemnified party (or are payable in settlement by the indemnified party). The indemnified party shall: (i) promptly notify the indemnifying party in writing of the claim; (ii) grant the indemnifying party sole control of the defense and settlement of the claim; and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Notwithstanding the foregoing, the indemnifying party’s obligations under this Section shall be reduced, limited or eliminated due to the indemnified party’s breach of its obligations in the preceding sentence only to the extent the indemnified party is prejudiced thereby. The indemnifying party’s obligations under this Section shall not apply to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party or its employees or subcontractors. The indemnified party retains the right to participate in any indemnified matter with counsel and consultants of its own selection, at its own expense. The indemnifying party shall not consent to the entry of any judgment or enter into any settlement with respect to an indemnified matter which requires any action other than consent from the indemnified party without the written consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed).
5.3 Limitations of Liability:
(a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded
or limited under law (together the "Excluded Losses").
(b) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.
5. General
5.1 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an EIO shall prejudice or restrict the rights (whether provided by this Agreement, an EIO or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement, an EIO or at law) and each such right, power or remedy shall be cumulative.
5.2 Assignment: Either Party may assign any or all of its rights under this Agreement or an EIO, or transfer or sub-contract any or all of its obligations under this Agreement or an EIO, upon prior written approval to the other Party, subject to the non-assigning Party’s right to terminate. Notwithstanding the foregoing, any subcontract between Media Partner and any third party shall incorporate by reference all the terms and conditions set forth in this Agreement.
5.3 Independent Parties: None of the provisions of this Agreement are intended to create nor shall be deemed or construed to create any relationship between the parties hereto other than that of independent contractors solely for the purpose of effecting the provisions of this Agreement. Neither of the parties
hereto, nor any of their respective officers, directors or employees, shall act as nor be construed to be the agent, employee or representative of the other.
5.4 Audit rights: Media Partner agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to Advertiser upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
5.5 Notices: All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform. All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
5.6 Governing Law: This Agreement, and each EIO shall be governed, and construed in accordance with, the laws of the State of California.
5.7 Equal Employment Opportunity: Advertiser is a federal government contractor and therefore subject to various federal laws, executive orders and regulations regarding equal opportunity, affirmative action, and labor, that may also be applicable to Media Partner. Advertiser is an equal opportunity employer. Advertiser and Media Partner agree that they will comply with Executive Order 11246, as amended, Executive Order 13496; the Vietnam Era Veterans Readjustment Assistance Act of 1974, the Rehabilitation Act of 1973 as amended, to the extent applicable, and also agree that these law are incorporated herein by this reference.
