SEMO, Inc.
Program Terms
Semo Affiliate Terms
These Affiliate Terms (hereinafter the “Affiliate Terms” or this “Agreement”) sets forth the terms and conditions that govern your participation in the affiliate marketing program (the “Program”) offered on ShareASale.com (“ShareASale”) by Semo, Inc., a Delaware corporation with its principal office located at 5631 Broadway, San Antonio, TX 78209 (“Semo”).
By registering and/or participating in the Program, you agree to be bound by the terms and conditions of this Agreement. You also agree that Semo’s decisions with respect to the administration of the Program and other interpretation and application of this Agreement, including those relating to your participation in the Program and your compliance with the requirements set forth herein, will be final and binding and made by Semo in its sole discretion.
Semo reserves the right to modify these Affiliate Terms at any time. In the event of such a modification, you will be notified through the ShareASale.com account. Your continued participation in the Program after any such modification will constitute your acceptance of such modification. If you do not wish to accept any such modification to this Agreement, you must provide notice of termination in accordance with Section 6, Term and Termination, below.
As used in this Agreement, “we”, “us”, and “our” refers to Semo, and "you”, “your” means an entity or individual that participates in the Program as an owner or operator of an Eligible Site.
1. Definitions. Capitalized terms defined in this document shall have the meaning set forth in this Section or elsewhere in this Agreement, as applicable.
“Semo Site” means any Site that is owned or operated by or on behalf of Semo or that is designated by Semo in writing as a Semo Site.
“Eligible Link” means a link to the Semo Site using (a) the URL(s) available through ShareASale.com that are intended to be used to link from an Eligible Site to the Semo Site, or (b) any other URL provided by Semo, through ShareA Sale.com, that is intended to be used to link from an Eligible Site to the Semo Site for the Program.
“Eligible Site” means a Site owned or operated by or on behalf of you that has been accepted and approved by Semo for participation in the Program.
“Semo Marks and Materials” means Semo’s trademarks, service marks, copyrights, logos, slogans, other identifying symbols and indicia and other marketing materials provided by Semo in connection with this Agreement.
“Commission” means the compensation that you may earn under the Program as set forth in Section 4 below.
“Site” means any medium, channel, domain or portion of a domain accessible within the Internet.
2. Participation in the Program.
Your participation in the Program is at the sole discretion of Semo and may be revoked at any time. Once approved to participate in the Program, you may post Eligible Links on your Eligible Sites. If at any time we determine in our sole discretion that any of your Eligible Sites are unsuitable for the Program or that you are otherwise in breach of this Agreement, we may require that you terminate use of the any Eligible Links and/or Semo Marks on any Eligible Sites we identify, terminate your participation in the Program and/or this Agreement immediately, and/or require you take additional remedial measures as determined by Semo.
3. Responsibilities of Affiliate Marketer.
You shall display any Semo Marks and Materials on your Eligible Sites in compliance with all applicable laws and regulations. You shall be solely responsible for the development, operation and maintenance of each of your Eligible Sites and for all materials that appear on your Sites. SEMO DISCLAIMS ALL LIABILITY FOR SUCH MATERIALS.
You are also responsible for notifying us of any malfunctions of the Eligible Links or other problems with your participation in the Program in accordance with the terms of this Agreement. You shall only link to the Semo Site using an Eligible Link. You may post more than one Eligible Link on your Eligible Sites. You shall not modify or change any of the Eligible Links. Only Eligible Links generated by ShareASale.com will be tracked for purposes of determining the Commissions that you may be eligible to receive through your Eligible Sites.
4. Commission. You will earn a commission (the “Commission”) for each new Valid Lead (as defined below) that you refer to Semo while in compliance with this Agreement, unless another arrangement has been approved by Semo. The value of the Commission is defined in ShareASale. A “Valid Lead” is a natural person who: (a) clicks an Eligible Link located on an Eligible Site; (b) is directed to the Semo Site; (c) as a result of such click, creates a Semo account using a U.S. address that is not already identified with a Semo user at the time of referral; and (d) provides legitimate information at the time of such registration (a “Registration”).
You may not manually input information on behalf of any potential Valid Lead that you refer to Semo. Semo reserves the right to determine, at its sole discretion: (i) whether a potential Valid Lead referred via the Program is a new Valid Lead; and (ii) whether to withhold, reverse or void any Commissions if (A) the potential Valid Lead does not constitute a new Valid Lead; (B) you have already claimed any form of compensation for such potential Valid Lead under another Semo marketing program; (C) Semo suspects any fraudulent activity or any abuse of the Program; or (D) you have violated the terms of this Agreement. Where multiple Program affiliates refer the same Valid Lead to Semo, Semo will only award the applicable Commission for such Valid Lead to the last referring affiliate at the time of Registration, as determined by Semo in its sole, reasonable discretion. Semo may ask you to provide additional information or clarification on any potential Valid Leads referred by you, and you must respond promptly and honestly. To the extent Semo makes available multiple marketing programs (e.g., Affiliate Marketing Program, Referral Program, or any other marketing program) you may only claim credit or commission for a potential Valid Lead you refer to Semo under one such program. Semo may void and reverse all credits or commissions for a potential Valid Lead referred by you if you claim compensation for such individual under more than one Semo marketing program.
5. Sub-Affiliates. If you use affiliate aggregators or sub-affiliate networks to promote Semo, you must disclose clearly to Semo where traffic from your sub-affiliates originated, and all sub-affiliates promoting Semo must adhere to the terms of this Agreement. You may not permit any affiliate aggregate or sub-affiliate network that is, at such time, sending organic SEO links to Semo to promote us via your Links unless we have given you and they written permission to do so. Semo reserves the right to withhold and/or reduce Commissions to you from sales made through any sub-affiliate that does not comply with this Agreement. You will be responsible for the acts and omissions of any affiliate aggregator or sub-affiliate network you use to promote Semo.
6. Restrictions and Obligations.
6.1 Websites. You shall not create, design or operate any website in a manner that (a) resembles or frames the Semo Site; (b) distributes toolbars, browser plug-ins, extensions or downloadable software; (c) redirects internet traffic to or from another website (other than via legitimate links); (d) diverts affiliate commissions from another website; or (e) identify your site as an “official” Semo Site. You may not cybersquat, purchase domains or use sub-domains that contain the Semo Marks and Materials; provided, however, that you may use the Semo Marks and Materials as a directory of your domain name (e.g., www.example.com/semo). Content and ad text must be in logical sentence or phrase form, including correct grammar and spelling, and must not be misleading. Your site must contain your own trademark (word and/or logo) in sufficient prominence to be reasonably clear that your site is not an official Semo site. You shall not use or publish Semo Marks and Materials or links on any website, blog, social media source or equivalent platform (whether controlled by you or by third-parties) where any Objectionable Content (as defined below) is displayed or promoted, as determined at Semo’s sole discretion. “Objectionable Content” includes, but is not limited to, content that (i) is potentially harmful, threatening, obscene, indecent, sexually explicit, gratuitously violent, defamatory, discriminatory, unlawful, misleading, deceptive, fraudulent or infringing of third-party intellectual property rights; (ii) promotes gambling, illicit drugs, software pirating, hacking, spoofing, redirecting or any other harmful or illegal act as determined by Semo; or (iii) contains software viruses, worms, defects, trojans, adware, spyware, malware or other similar computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware device.
6.2 Materials and Information. You accept sole responsibility for the development, operation and maintenance of your marks and materials. You will: (a) provide accurate, current, and complete information about yourself as requested by Semo and update such information as needed to maintain accuracy; (b) accept sole responsibility for all use of and activity under your ShareASale account; and (c) correct any incorrect or inaccurate information on your website or other materials within 2 days of receiving notice from Semo of the need for correction. You must abide by this Agreement, your agreement with ShareASale and all other Semo terms, policies and guidelines communicated to you via email or otherwise.
7. Ownership and Licenses. Semo owns and shall retain all right, title, and interest in Semo Marks and Materials. Subject to the terms and conditions of this Agreement, Semo hereby grants you a limited, royalty-free, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to use the Semo Marks and Materials solely to perform activities and obligations expressly authorized under this Agreement. Semo grants you no rights in or to any of its copyrights, trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. For clarity, you may not modify or develop derivative works of the Semo Marks and Materials without Semo’s express consent. You expressly acknowledge Semo’s sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. You agree further to take such additional actions, at Semo’s expense, as Semo deems reasonably necessary to establish and/or preserve Semo’s exclusive rights in and to Semo Marks and Materials. You agree not to form any combination marks with Semo Marks and Materials, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to the Semo Marks and Materials or any other trademarks of any Semo subsidiary. All your uses of Semo Marks and Materials shall inure to the benefit of, and be on behalf of, Semo. Upon termination of this Agreement, you shall immediately return and/or cease to use any information and materials provided by Semo under the Program, including the Semo Marks and Materials, and shall remove any Semo Marks and Materials from items and locations under your control.
8. Term and Termination
Your participation in the Program shall commence following your indication that you have accepted this Agreement through your ShareA Sale.com account and upon Semo’s subsequent acceptance of your request to participate in the Program. Your participation shall continue until terminated in accordance with the terms of this Agreement.
Semo may terminate your participation in the Program or this Agreement at any time, for any reason, upon one (1) day prior written notice of such termination to you. Notwithstanding the foregoing, Semo shall be entitled to terminate your participation in the Program or this Agreement immediately if you breach or violate any terms or conditions of this Agreement. Termination of this Agreement shall also terminate your participation in the Program. All rights to causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement. However, in the case of your breach of this Agreement, Semo reserves the right to withhold any outstanding payments and pursue further action against to recover additional monetary damages resulting from your breach of this Agreement and failure to comply with the terms herein.
You may terminate your participation in the Program and/or this Agreement at any time, for any reason, upon seven (7) days prior written notice of such termination to Semo.
Upon any termination of this Agreement or at any time upon Semo’s request: you agree to (i) cease use of, return, destroy and/or remove all Eligible links to the Semo Site, and all Semo Marks and Materials and Semo Confidential Information.
Any right or obligation of the parties in this Agreement which, by its nature, should survive, will survive termination of this Agreement.
9. Representations and Warranties. Semo represents and warrants that it has the full power and authority to enter into this Agreement and perform its obligations hereunder. You represent and warrant that (i) you have the full power and authority to enter into this Agreement, participate in the Program, and perform all of your obligations hereunder; (ii) by entering into this Agreement you will not breach any current or future obligation that you have, or may have, with any third party; (iv) you shall comply with all applicable laws, regulations, and rules, including but not limited to the Guidelines; and (v) performance of your obligations hereunder and any material you display on your Eligible Sites shall not infringe upon any U.S. or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third party.
10. Indemnification. You agree to indemnify and hold Semo, its respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (“Indemnitees”) free and harmless from any and all claims, liabilities, or damages, including attorneys’ fees and costs incurred in defense of any action, including the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing an insurance providers, related to or arising from (i) any breach by you of any of your duties, covenants, or representations or warranties hereunder, and/or (ii) any allegations that you infringe the intellectual property rights (including, without limitation, copyrights, patent rights, trade secrets, trademarks, service marks, and rights of publicity) of a third party.
11. Remedies. If you breach any provision of this Agreement, Semo shall, in addition to any damages to which it is entitled, be entitled to immediate injunctive relief against you prohibiting further actions inconsistent with your obligations under this Agreement. Except as otherwise specified herein, all rights and obligations provided in this Agreement are cumulative and not exhaustive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or then be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the foregoing, the parties intend that your sole and exclusive remedy for Semo’s payment breach shall be your right to damages equal to its earned but unpaid fees.
12. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREOF: (I) IN NO EVENT SHALL SEMO OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR AFFILIATES (COLLECTIVELY, THE “SEMO PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS OR REVENUES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT; (II) THE MAXIMUM AGGREGATE LIABILITY OF THE SEMO PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL COMMISSION AMOUNT PAID TO YOU PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Confidentiality.
Confidential Information. Each party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other party’s proprietary business procedures, products, services, operations, marketing materials, fees, policies and plans of the other party that is received or obtained during the negotiation or performance of this Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information”). The term “Confidential Information” shall not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).
Use of Confidential Information. For as long as Confidential Information is in possession of a party, such party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information, other than by or to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or except as required by law or by a supervising regulatory agency of a receiving party; provided, that in the case of legally-required disclosure, the receiving party shall (i) to the extent permitted by law, promptly notify disclosing party of such required disclosure, (ii) reasonably cooperate with disclosing party to seek confidential treatment of any information that it is required to disclose and (iii) only disclose such portion of the Confidential Information that it is legally required, in the opinion of counsel, to disclose. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The parties shall use Confidential Information only as necessary to perform this Agreement.
Return of Information. Upon the termination or expiration of this Agreement, or at any time upon Semo’s written request, the receiving party shall promptly return all Confidential Information received as part of the negotiation or performance of this Agreement, or shall promptly destroy any materials containing such information (and any copies, extracts, and summaries thereof) and shall provide the disclosing party with written confirmation of such return or destruction upon request. Notwithstanding the foregoing, the receiving party shall not be required to destroy any automated archival backup of such Confidential Information to the extent (i) such destruction is not reasonably practicable or (ii) as required by applicable law or regulation. Each party shall be entitled to all remedies available at law or equity, including injunctive relief, to enforce the provisions of this Section. The provisions of this Section shall survive termination of this Agreement.
14. Audit. During the term of this Agreement and for a period of one (1) year following expiration or termination of this Agreement you will maintain accurate books and records of all information necessary to permit Semo, upon advance written notice, and at its expense, to audit you for the sole purpose of determining your compliance with this Agreement.
15. No Public Statements. Neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party. Unless otherwise provided herein, neither party will use the other party’s name, trademark or logos without the prior written consent of the other party.
16. Notices. All notices hereunder shall be given in writing (including via email), addressed to the respective addresses set forth in the ShareASale.com account, or at such other address as may from time to time be designated by either party to the other in writing.
17. No Waiver. No failure by either party hereto to exercise and no delay in exercising any rights hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder by either party preclude any other or future exercise of that right or any other right hereunder by that party.
18. No Third-Party Beneficiaries. Except as otherwise stated in the next sentence, this Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. The parties hereby designate the Indemnitees (as defined above) as third-party beneficiaries for purposes of having the right to enforce the indemnification obligations under this Agreement.
19. Independent Contractors. The parties are acting as independent contractors to each other under this Agreement, and nothing contained in this Agreement shall create or suggest any affiliation, association, agency or joint venture between the parties. Neither party shall represent itself or act as the associate, agent or joint venturer of the other party in any way whatsoever. Neither party shall have the authority to bind or commit the other party for any purpose and will not hold themselves out as having the authority to do so.
20. No Assignment. This Agreement is not assignable in whole or in part by you without the prior written consent of Semo. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
21. Dispute Resolution. The parties agree that this Section shall govern any controversy or claim arising out of, or relating to, this Agreement or the breach thereof (“Dispute”), and that all Disputes shall be resolved by the procedures in the order provided below.
Informal Resolution. The parties shall use their good faith efforts first to resolve any Dispute, which shall include providing written notice of any Dispute and at least 10 business days to resolve the Dispute.
Mediation. In the event that the parties are unable to resolve the Dispute informally, the parties agree to submit the matter to mediation in San Antonio, Texas, before a single mediator jointly chosen by the parties. The parties agree to bear all associated costs and fees on an equal basis.
Arbitration. If the parties are unable to resolve the Dispute through mediation, either party may initiate arbitration by filing a written demand for arbitration, at any time but no later than 45 days from the conclusion of mediation. The parties shall jointly choose a single arbitrator designated by the American Arbitration Association (the “AAA”). The arbitration shall be conducted in accordance with the terms of the Commercial Arbitration Rules of the AAA and shall take place in San Antonio, Texas. The arbitrator shall administer and conduct any arbitration in accordance with the Federal Arbitration Act and Texas law and shall apply substantive and procedural Texas law to the Dispute, without reference to any conflict-of-law provisions of any jurisdiction. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. The parties to the arbitration shall each pay an equal share of the costs and expenses of any arbitration, and each party shall separately pay for its respective attorneys’ fees and costs; provided, however, that the arbitrator shall award to the prevailing party, if any, the attorneys’ fees and costs reasonably incurred by the prevailing party in connection with the arbitration, except as prohibited by law. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the attorneys’ fees and costs reasonably incurred by the prevailing party. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
22. Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party's control, including without limitation, natural disasters, embargoes, explosions, riots, wars, or acts of terrorism (each, a "Force Majeure Event"). Each party shall give the other prompt written notice of any potential or actual Force Majeure Event, the anticipated duration of such Force Majeure Event, and shall use diligent efforts to mitigate or end the Force Majeure Event in order to resume full performance under this Agreement.
23. Entire Agreement. This Agreement, together with any documents incorporated herein by reference, and related exhibits and schedules, shall constitute the complete and exclusive agreement between the parties respecting this subject matter. This Agreement supersedes all previous agreements between you and Semo, whether oral or in writing. Unless the parties expressly agree to supersede or modify this Agreement with another written agreement that governs the subject matter herein, this Agreement shall control.
24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
These Affiliate Terms (hereinafter the “Affiliate Terms” or this “Agreement”) sets forth the terms and conditions that govern your participation in the affiliate marketing program (the “Program”) offered on ShareASale.com (“ShareASale”) by Semo, Inc., a Delaware corporation with its principal office located at 5631 Broadway, San Antonio, TX 78209 (“Semo”).
By registering and/or participating in the Program, you agree to be bound by the terms and conditions of this Agreement. You also agree that Semo’s decisions with respect to the administration of the Program and other interpretation and application of this Agreement, including those relating to your participation in the Program and your compliance with the requirements set forth herein, will be final and binding and made by Semo in its sole discretion.
Semo reserves the right to modify these Affiliate Terms at any time. In the event of such a modification, you will be notified through the ShareASale.com account. Your continued participation in the Program after any such modification will constitute your acceptance of such modification. If you do not wish to accept any such modification to this Agreement, you must provide notice of termination in accordance with Section 6, Term and Termination, below.
As used in this Agreement, “we”, “us”, and “our” refers to Semo, and "you”, “your” means an entity or individual that participates in the Program as an owner or operator of an Eligible Site.
1. Definitions. Capitalized terms defined in this document shall have the meaning set forth in this Section or elsewhere in this Agreement, as applicable.
“Semo Site” means any Site that is owned or operated by or on behalf of Semo or that is designated by Semo in writing as a Semo Site.
“Eligible Link” means a link to the Semo Site using (a) the URL(s) available through ShareASale.com that are intended to be used to link from an Eligible Site to the Semo Site, or (b) any other URL provided by Semo, through ShareA Sale.com, that is intended to be used to link from an Eligible Site to the Semo Site for the Program.
“Eligible Site” means a Site owned or operated by or on behalf of you that has been accepted and approved by Semo for participation in the Program.
“Semo Marks and Materials” means Semo’s trademarks, service marks, copyrights, logos, slogans, other identifying symbols and indicia and other marketing materials provided by Semo in connection with this Agreement.
“Commission” means the compensation that you may earn under the Program as set forth in Section 4 below.
“Site” means any medium, channel, domain or portion of a domain accessible within the Internet.
2. Participation in the Program.
Your participation in the Program is at the sole discretion of Semo and may be revoked at any time. Once approved to participate in the Program, you may post Eligible Links on your Eligible Sites. If at any time we determine in our sole discretion that any of your Eligible Sites are unsuitable for the Program or that you are otherwise in breach of this Agreement, we may require that you terminate use of the any Eligible Links and/or Semo Marks on any Eligible Sites we identify, terminate your participation in the Program and/or this Agreement immediately, and/or require you take additional remedial measures as determined by Semo.
3. Responsibilities of Affiliate Marketer.
You shall display any Semo Marks and Materials on your Eligible Sites in compliance with all applicable laws and regulations. You shall be solely responsible for the development, operation and maintenance of each of your Eligible Sites and for all materials that appear on your Sites. SEMO DISCLAIMS ALL LIABILITY FOR SUCH MATERIALS.
You are also responsible for notifying us of any malfunctions of the Eligible Links or other problems with your participation in the Program in accordance with the terms of this Agreement. You shall only link to the Semo Site using an Eligible Link. You may post more than one Eligible Link on your Eligible Sites. You shall not modify or change any of the Eligible Links. Only Eligible Links generated by ShareASale.com will be tracked for purposes of determining the Commissions that you may be eligible to receive through your Eligible Sites.
4. Commission. You will earn a commission (the “Commission”) for each new Valid Lead (as defined below) that you refer to Semo while in compliance with this Agreement, unless another arrangement has been approved by Semo. The value of the Commission is defined in ShareASale. A “Valid Lead” is a natural person who: (a) clicks an Eligible Link located on an Eligible Site; (b) is directed to the Semo Site; (c) as a result of such click, creates a Semo account using a U.S. address that is not already identified with a Semo user at the time of referral; and (d) provides legitimate information at the time of such registration (a “Registration”).
You may not manually input information on behalf of any potential Valid Lead that you refer to Semo. Semo reserves the right to determine, at its sole discretion: (i) whether a potential Valid Lead referred via the Program is a new Valid Lead; and (ii) whether to withhold, reverse or void any Commissions if (A) the potential Valid Lead does not constitute a new Valid Lead; (B) you have already claimed any form of compensation for such potential Valid Lead under another Semo marketing program; (C) Semo suspects any fraudulent activity or any abuse of the Program; or (D) you have violated the terms of this Agreement. Where multiple Program affiliates refer the same Valid Lead to Semo, Semo will only award the applicable Commission for such Valid Lead to the last referring affiliate at the time of Registration, as determined by Semo in its sole, reasonable discretion. Semo may ask you to provide additional information or clarification on any potential Valid Leads referred by you, and you must respond promptly and honestly. To the extent Semo makes available multiple marketing programs (e.g., Affiliate Marketing Program, Referral Program, or any other marketing program) you may only claim credit or commission for a potential Valid Lead you refer to Semo under one such program. Semo may void and reverse all credits or commissions for a potential Valid Lead referred by you if you claim compensation for such individual under more than one Semo marketing program.
5. Sub-Affiliates. If you use affiliate aggregators or sub-affiliate networks to promote Semo, you must disclose clearly to Semo where traffic from your sub-affiliates originated, and all sub-affiliates promoting Semo must adhere to the terms of this Agreement. You may not permit any affiliate aggregate or sub-affiliate network that is, at such time, sending organic SEO links to Semo to promote us via your Links unless we have given you and they written permission to do so. Semo reserves the right to withhold and/or reduce Commissions to you from sales made through any sub-affiliate that does not comply with this Agreement. You will be responsible for the acts and omissions of any affiliate aggregator or sub-affiliate network you use to promote Semo.
6. Restrictions and Obligations.
6.1 Websites. You shall not create, design or operate any website in a manner that (a) resembles or frames the Semo Site; (b) distributes toolbars, browser plug-ins, extensions or downloadable software; (c) redirects internet traffic to or from another website (other than via legitimate links); (d) diverts affiliate commissions from another website; or (e) identify your site as an “official” Semo Site. You may not cybersquat, purchase domains or use sub-domains that contain the Semo Marks and Materials; provided, however, that you may use the Semo Marks and Materials as a directory of your domain name (e.g., www.example.com/semo). Content and ad text must be in logical sentence or phrase form, including correct grammar and spelling, and must not be misleading. Your site must contain your own trademark (word and/or logo) in sufficient prominence to be reasonably clear that your site is not an official Semo site. You shall not use or publish Semo Marks and Materials or links on any website, blog, social media source or equivalent platform (whether controlled by you or by third-parties) where any Objectionable Content (as defined below) is displayed or promoted, as determined at Semo’s sole discretion. “Objectionable Content” includes, but is not limited to, content that (i) is potentially harmful, threatening, obscene, indecent, sexually explicit, gratuitously violent, defamatory, discriminatory, unlawful, misleading, deceptive, fraudulent or infringing of third-party intellectual property rights; (ii) promotes gambling, illicit drugs, software pirating, hacking, spoofing, redirecting or any other harmful or illegal act as determined by Semo; or (iii) contains software viruses, worms, defects, trojans, adware, spyware, malware or other similar computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware device.
6.2 Materials and Information. You accept sole responsibility for the development, operation and maintenance of your marks and materials. You will: (a) provide accurate, current, and complete information about yourself as requested by Semo and update such information as needed to maintain accuracy; (b) accept sole responsibility for all use of and activity under your ShareASale account; and (c) correct any incorrect or inaccurate information on your website or other materials within 2 days of receiving notice from Semo of the need for correction. You must abide by this Agreement, your agreement with ShareASale and all other Semo terms, policies and guidelines communicated to you via email or otherwise.
7. Ownership and Licenses. Semo owns and shall retain all right, title, and interest in Semo Marks and Materials. Subject to the terms and conditions of this Agreement, Semo hereby grants you a limited, royalty-free, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to use the Semo Marks and Materials solely to perform activities and obligations expressly authorized under this Agreement. Semo grants you no rights in or to any of its copyrights, trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. For clarity, you may not modify or develop derivative works of the Semo Marks and Materials without Semo’s express consent. You expressly acknowledge Semo’s sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. You agree further to take such additional actions, at Semo’s expense, as Semo deems reasonably necessary to establish and/or preserve Semo’s exclusive rights in and to Semo Marks and Materials. You agree not to form any combination marks with Semo Marks and Materials, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to the Semo Marks and Materials or any other trademarks of any Semo subsidiary. All your uses of Semo Marks and Materials shall inure to the benefit of, and be on behalf of, Semo. Upon termination of this Agreement, you shall immediately return and/or cease to use any information and materials provided by Semo under the Program, including the Semo Marks and Materials, and shall remove any Semo Marks and Materials from items and locations under your control.
8. Term and Termination
Your participation in the Program shall commence following your indication that you have accepted this Agreement through your ShareA Sale.com account and upon Semo’s subsequent acceptance of your request to participate in the Program. Your participation shall continue until terminated in accordance with the terms of this Agreement.
Semo may terminate your participation in the Program or this Agreement at any time, for any reason, upon one (1) day prior written notice of such termination to you. Notwithstanding the foregoing, Semo shall be entitled to terminate your participation in the Program or this Agreement immediately if you breach or violate any terms or conditions of this Agreement. Termination of this Agreement shall also terminate your participation in the Program. All rights to causes of action and any provisions which by their terms are intended to survive termination, shall survive termination of this Agreement. However, in the case of your breach of this Agreement, Semo reserves the right to withhold any outstanding payments and pursue further action against to recover additional monetary damages resulting from your breach of this Agreement and failure to comply with the terms herein.
You may terminate your participation in the Program and/or this Agreement at any time, for any reason, upon seven (7) days prior written notice of such termination to Semo.
Upon any termination of this Agreement or at any time upon Semo’s request: you agree to (i) cease use of, return, destroy and/or remove all Eligible links to the Semo Site, and all Semo Marks and Materials and Semo Confidential Information.
Any right or obligation of the parties in this Agreement which, by its nature, should survive, will survive termination of this Agreement.
9. Representations and Warranties. Semo represents and warrants that it has the full power and authority to enter into this Agreement and perform its obligations hereunder. You represent and warrant that (i) you have the full power and authority to enter into this Agreement, participate in the Program, and perform all of your obligations hereunder; (ii) by entering into this Agreement you will not breach any current or future obligation that you have, or may have, with any third party; (iv) you shall comply with all applicable laws, regulations, and rules, including but not limited to the Guidelines; and (v) performance of your obligations hereunder and any material you display on your Eligible Sites shall not infringe upon any U.S. or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third party.
10. Indemnification. You agree to indemnify and hold Semo, its respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (“Indemnitees”) free and harmless from any and all claims, liabilities, or damages, including attorneys’ fees and costs incurred in defense of any action, including the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing an insurance providers, related to or arising from (i) any breach by you of any of your duties, covenants, or representations or warranties hereunder, and/or (ii) any allegations that you infringe the intellectual property rights (including, without limitation, copyrights, patent rights, trade secrets, trademarks, service marks, and rights of publicity) of a third party.
11. Remedies. If you breach any provision of this Agreement, Semo shall, in addition to any damages to which it is entitled, be entitled to immediate injunctive relief against you prohibiting further actions inconsistent with your obligations under this Agreement. Except as otherwise specified herein, all rights and obligations provided in this Agreement are cumulative and not exhaustive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or then be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the foregoing, the parties intend that your sole and exclusive remedy for Semo’s payment breach shall be your right to damages equal to its earned but unpaid fees.
12. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION HEREOF: (I) IN NO EVENT SHALL SEMO OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR AFFILIATES (COLLECTIVELY, THE “SEMO PARTIES”) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS OR REVENUES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT; (II) THE MAXIMUM AGGREGATE LIABILITY OF THE SEMO PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL COMMISSION AMOUNT PAID TO YOU PURSUANT TO THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. Confidentiality.
Confidential Information. Each party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other party’s proprietary business procedures, products, services, operations, marketing materials, fees, policies and plans of the other party that is received or obtained during the negotiation or performance of this Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information”). The term “Confidential Information” shall not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).
Use of Confidential Information. For as long as Confidential Information is in possession of a party, such party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information, other than by or to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or except as required by law or by a supervising regulatory agency of a receiving party; provided, that in the case of legally-required disclosure, the receiving party shall (i) to the extent permitted by law, promptly notify disclosing party of such required disclosure, (ii) reasonably cooperate with disclosing party to seek confidential treatment of any information that it is required to disclose and (iii) only disclose such portion of the Confidential Information that it is legally required, in the opinion of counsel, to disclose. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The parties shall use Confidential Information only as necessary to perform this Agreement.
Return of Information. Upon the termination or expiration of this Agreement, or at any time upon Semo’s written request, the receiving party shall promptly return all Confidential Information received as part of the negotiation or performance of this Agreement, or shall promptly destroy any materials containing such information (and any copies, extracts, and summaries thereof) and shall provide the disclosing party with written confirmation of such return or destruction upon request. Notwithstanding the foregoing, the receiving party shall not be required to destroy any automated archival backup of such Confidential Information to the extent (i) such destruction is not reasonably practicable or (ii) as required by applicable law or regulation. Each party shall be entitled to all remedies available at law or equity, including injunctive relief, to enforce the provisions of this Section. The provisions of this Section shall survive termination of this Agreement.
14. Audit. During the term of this Agreement and for a period of one (1) year following expiration or termination of this Agreement you will maintain accurate books and records of all information necessary to permit Semo, upon advance written notice, and at its expense, to audit you for the sole purpose of determining your compliance with this Agreement.
15. No Public Statements. Neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party. Unless otherwise provided herein, neither party will use the other party’s name, trademark or logos without the prior written consent of the other party.
16. Notices. All notices hereunder shall be given in writing (including via email), addressed to the respective addresses set forth in the ShareASale.com account, or at such other address as may from time to time be designated by either party to the other in writing.
17. No Waiver. No failure by either party hereto to exercise and no delay in exercising any rights hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder by either party preclude any other or future exercise of that right or any other right hereunder by that party.
18. No Third-Party Beneficiaries. Except as otherwise stated in the next sentence, this Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. The parties hereby designate the Indemnitees (as defined above) as third-party beneficiaries for purposes of having the right to enforce the indemnification obligations under this Agreement.
19. Independent Contractors. The parties are acting as independent contractors to each other under this Agreement, and nothing contained in this Agreement shall create or suggest any affiliation, association, agency or joint venture between the parties. Neither party shall represent itself or act as the associate, agent or joint venturer of the other party in any way whatsoever. Neither party shall have the authority to bind or commit the other party for any purpose and will not hold themselves out as having the authority to do so.
20. No Assignment. This Agreement is not assignable in whole or in part by you without the prior written consent of Semo. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
21. Dispute Resolution. The parties agree that this Section shall govern any controversy or claim arising out of, or relating to, this Agreement or the breach thereof (“Dispute”), and that all Disputes shall be resolved by the procedures in the order provided below.
Informal Resolution. The parties shall use their good faith efforts first to resolve any Dispute, which shall include providing written notice of any Dispute and at least 10 business days to resolve the Dispute.
Mediation. In the event that the parties are unable to resolve the Dispute informally, the parties agree to submit the matter to mediation in San Antonio, Texas, before a single mediator jointly chosen by the parties. The parties agree to bear all associated costs and fees on an equal basis.
Arbitration. If the parties are unable to resolve the Dispute through mediation, either party may initiate arbitration by filing a written demand for arbitration, at any time but no later than 45 days from the conclusion of mediation. The parties shall jointly choose a single arbitrator designated by the American Arbitration Association (the “AAA”). The arbitration shall be conducted in accordance with the terms of the Commercial Arbitration Rules of the AAA and shall take place in San Antonio, Texas. The arbitrator shall administer and conduct any arbitration in accordance with the Federal Arbitration Act and Texas law and shall apply substantive and procedural Texas law to the Dispute, without reference to any conflict-of-law provisions of any jurisdiction. The decision of the arbitrator shall be final, conclusive, and binding on the parties to the arbitration. The parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. The parties to the arbitration shall each pay an equal share of the costs and expenses of any arbitration, and each party shall separately pay for its respective attorneys’ fees and costs; provided, however, that the arbitrator shall award to the prevailing party, if any, the attorneys’ fees and costs reasonably incurred by the prevailing party in connection with the arbitration, except as prohibited by law. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the attorneys’ fees and costs reasonably incurred by the prevailing party. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction.
THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY.
22. Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party's control, including without limitation, natural disasters, embargoes, explosions, riots, wars, or acts of terrorism (each, a "Force Majeure Event"). Each party shall give the other prompt written notice of any potential or actual Force Majeure Event, the anticipated duration of such Force Majeure Event, and shall use diligent efforts to mitigate or end the Force Majeure Event in order to resume full performance under this Agreement.
23. Entire Agreement. This Agreement, together with any documents incorporated herein by reference, and related exhibits and schedules, shall constitute the complete and exclusive agreement between the parties respecting this subject matter. This Agreement supersedes all previous agreements between you and Semo, whether oral or in writing. Unless the parties expressly agree to supersede or modify this Agreement with another written agreement that governs the subject matter herein, this Agreement shall control.
24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.