Yoobi
Program Terms
Yoobi Affiliate Terms & Conditions effective May 5, 2022
PLEASE READ THIS AGREEMENT CAREFULLY! THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT BETWEEN YOU AND YOOBI (DEFINED BELOW). YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION FOR THE YOOBI AFFILIATE PROGRAM (THE “PROGRAM”) OFFERED THROUGH SHAREASALE.COM (THE “SHAREASALE SITE”). BY REGISTERING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT.
THIS YOOBI AFFILIATE PROGRAM TERMS OF SERVICE AGREEMENT (the “Agreement”) is made by and between Yoobi, LLC (“Yoobi”, “we”, “our” or “us”), and you, as an affiliate (“You”, “Your” or “Affiliate”) for purposes of the Program. The Program permits Affiliates to promote Yoobi Product(s), available for sale at:your website (the “Distribution Site”). By “Product(s)”, we mean the specific item or items that are advertised on the Distribution Site that are part of Yoobi’s products that we make available for sale in connection with the Program.
1. PROGRAM REGISTRATION, APPROVAL PROCESS AND PARTICIPATION.
a. Program Registration and Approval. To become a Program Affiliate, You must first maintain an active affiliate account and be in good standing of the Shareasale Site. Once You have an account with the Shareasale Site, You may apply to become a Program Affiliate by filling out the registration materials (“Registration Application”) and submitting it to Yoobi through the Shareasale Site. You understand and agree that Yoobi will use a variety of methods to confirm Your eligibility to become a Program Affiliate, including, without limitation, contacting references and other methods to verify Your Registration Application is accurate. By submitting Your Registration Application to become a Program Affiliate, You explicitly give permission to Yoobi and its vendors to independently confirm Your eligibility to participate in the Program. Yoobi reserves the right to continue to verify the accuracy of Your Registration Application at any time as long as You are a Program Affiliate. We will endeavor to provide You with notice whether Your Registration Application is approved within three (3) business days of our receipt of Your Registration Application. We may deny You access to the Program, in our sole discretion for any or no reason, without notice and without liability.
b. Affiliate Participation in the Program. We grant You the non-exclusive right to participate in the Program to promote and advertise Product(s) that may be sold by us to third parties through the Distribution Site, subject to the terms and conditions hereof. We reserve the right to terminate this Agreement, Your Program account and Your participation in the Program at any time and for any or no reason, in our sole and absolute discretion by giving You notice at Your e-mail address that we have in our records for You. The reasons we may terminate this Agreement, Your Program account and Your participation in the Program, include, without limitation, failure to keep Your web site up to date, or Your web site or other marketing materials incorporate images or content that we determine to be detrimental to the Yoobi brands or incorporate materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party. In addition to this Agreement, You acknowledge that You have carefully read and agree to comply with all of Yoobi’s policies and procedures as may be provided to You or are available on the Distribution Site from time to time, including, without limitation, the Distribution Site’s Terms of Use available at [Insert link], all of which are incorporated into and made part of this Agreement. You agree that if a conflict exists between this Agreement and any of the terms and conditions of the documents referenced in the previous sentence, this Agreement will control.
2. LICENSES.
a. Yoobi License. We grant You a non-exclusive, non-transferable, revocable license to use our trademarks, service marks, logos, links, Yoobi marketing materials and other intellectual property (all only in the form(s) provided to You by us for use in connection with the Program) (collectively, “Licensed Materials”) solely: (i) to promote and advertise the sale of Product(s) in connection with the Program in accordance with this Agreement, and (ii) if You are a member in good standing of the Program. You may not alter, modify, or change the Licensed Materials in any way without our express prior written approval. You will not make any specific use of any Licensed Materials for purposes other than advertising and promoting the sale of Product(s). You agree that You will not present the Licensed Materials in combination with any other name or mark, in connection with Your own goods or services, or in any manner that may suggest or imply that You or Your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance. You agree not to use the Licensed Materials, the Distribution Site, content or other materials or property in conjunction with, or to promote any activity that, in our sole discretion, is detrimental to the Yoobi brand or brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light. The determination of whether You are using the Licensed Materials, the Distribution Site, Your web site, or any other content or materials related to this Agreement in the best interest of Yoobi is left to our sole and absolute discretion. We reserve all of our rights in the Licensed Materials and our other proprietary rights. Your use of our Licensed Materials does not give You any rights in them other than as described in this Agreement. We may revoke Your license to the Licensed Materials at any time, upon notice to You, at which time You agree to immediately cease using the Licensed Materials. We may from time to time e-mail You with any changes or updates to the Licensed Materials, the Program and/or Yoobi’s related products and You must promptly comply with any directions from us in connection therewith.
b. Affiliate License. You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use Your names, titles, logos, trademarks, trade names, and service marks, copyrights, and any other materials created or used by You (which must be approved by us in writing) in connection with the Program (collectively, the “Affiliate Materials”) to advertise, market, promote and publicize in any manner the Program, Your participation in the Program and/or to promote Yoobi or our Product(s). Yoobi will not be required to use the Affiliate Materials or to advertise, market, promote or publicize Your affiliation with the Program. You represent and warrant that the Affiliate Materials, Your web site and any other materials created or used by You in connection with the Program will not contain anything that, in Yoobi’s sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with Yoobi’s public image, may be in bad taste, are indecent or in Yoobi’s opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Yoobi or any affiliated and/or subsidiary companies. You are responsible for ensuring that the Affiliate Materials and any other materials posted on Your web site do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. You must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, portrait, voice or likeness and You agree to provide such written permission to us promptly upon request. You will be solely responsible for the development, operation and maintenance of Your web site, for all materials that appear on Your web site, and for all marketing and promotion You conduct on Your web site.
c. Ownership. Subject to the limited licenses above, as between Yoobi and You, each party will exclusively own and control its respective intellectual property. All goodwill that accrues from the licensed use of a party’s trademarks hereunder will inure exclusively to the party that owns the trademark.
3. RESTRICTIONS.
a. Compliance with Law. Without limiting anything else in this Agreement, and notwithstanding anything to the contrary, You will at all times comply with all government laws and regulations, and voluntary industry standards, applicable to the Program and Your web site, including, without limitation, labor and employment laws and anti-bribery and corruption laws (e.g., the United States Foreign Corrupt Practices Act), The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), Federal Communications Commission (“FCC”), Federal Trade Commission (“FTC”) and other government regulations and guidelines, and will maintain appropriate customary high quality standards during the Term (defined below). Further, in any Affiliate Materials, You will conspicuously disclose Your affiliate status with respect to the Program and that You receive compensation from Yoobi for promoting the Product(s), all in compliance with the requirements of the FTC’s Endorsement and Testimonial Guidelines, available at: http://www.ftc.gov/opa/2009/10/endortest.shtm.
b. Disallowed Activities. Without limiting anything to the contrary in this Agreement, You will not engage in any of the following activities:
i. Restrictions on Use of Keyword Advertising (PPC, etc.)
i(a). If You engage in pay-per-click or other forms of keyword advertising, You will not provide links directly to the Distribution Site. All pay-per-click advertising needs to link to Your web site or Affiliate Materials, not directly to the Distribution Site.
i(b). You are not permitted to participate in any trademark bidding, including bidding on terms of our competitors. The terms Yoobi or any variations or misspellings of the domain name are not allowed. Also, please see Section 3(b)(ii)(b) below.
ii. Restrictions For Affiliates That Operate Coupon/Deal Web Sites or Platforms
ii(a). You may not use misleading text on affiliate links, buttons or images to imply that anything besides currently pre-authorized deals or other savings are available, as pre-approved in writing by us.
ii(b). You may not bid on any terms utilizing the word coupons or other similar phrases implying coupons are available if there is not an Yoobi pre-approved coupon posted or no coupons or savings are available that have been pre-approved by us.
ii(c). You may not generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor directly to the Distribution Site.
ii(d). Your users must be able to see all coupon, deal, and/or savings information and details before an affiliate cookie is set (i.e., "click here to see coupons and open a window to merchant site" is NOT permitted).
ii(e). Your web sites or platforms may not have "click for (or to see) coupon, deal and/or savings" or any variation, when there are no coupons or deals made available by us for use in connection with the Program. Affiliates with such text on their Affiliate Materials may be terminated from the Program immediately.
iii. Restrictions on Use of Web Sites and Other Technologies
iii(a). You may not wrap, frame or display in an iframe the Distribution Site or Product(s) to give the appearance that the Product(s) are being offered from Your web site unless, they are being displayed using an Yoobi approved third party tool. Framing in an invisible frame is expressly prohibited. All links to the Distribution Site must be done in the same full window or in a new browser window.
iii(b). No software downloads or technology may be used by You to intercept, redirect or divert traffic and/or referral fees from the Distribution Site or any of Yoobi’s affiliated web sites. This restriction includes browser helper objects (BHOs), spyware, adware, parasiteware(tm) and similar products.
iii(c). Traffic Exchanges, auto-surfing or pay-to-surf promotions, pop-ups, pop-unders, and other seen or unseen setting of cookies are NOT permitted.
iii(d). Using “Yoobi” with or without hyphens or other characters, or any misspellings in Your top level domain name are prohibited. Any use of the Yoobi intellectual property must be approved in writing by us.
iii(e). You may not maintain a web site that is a link farm or banner farm (i.e., there is no content on the site other than lists of text links or banners).
ii(f). You may place our banners or links within the content of Your web site or Your non-spam email newsletters. All other uses of banners or links, such as newsgroups, chat rooms, ICQ or other instant messaging, message boards, banner networks, hit farms, counters, or guestbooks, etc. are NOT permitted.
iii(g). You are not allowed to reference the Distribution Site on any web sites with adult, hate, discrimination, violent or other controversial content or web sites that violate intellectual property or other third party rights or any law, including, but not limited to, WAREZ, CRACKING, and HACKING sites, and sites that contain adware, spyware, malware or require other downloadable software.
iv. Restrictions on Use of E-mail
iv(a). All e-mail activities in connection with the Program must be approved in writing in advance of the sending of the e-mail. You may not engage in spamming, unsolicited mass emailing or any unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003. This does not exclude You from making people aware of the Product(s) or communicating by bulk email to a mailing list that complies with the CAN-SPAM Act, and all other applicable laws.
iv(b). All email advertising that includes advertising for Product(s) needs to link to a landing page on Your web site and not to the Distribution Site, unless written permission is obtained in advance of the sending of the e-mail.
v. Restrictions on Use of Social Media
v(a). You are permitted to use social media to promote Your activities in connection with the Program as long as they only incorporate Licensed Materials and do not otherwise violate the terms of this Agreement. You are not permitted to claim to be us in connection with any of your activities.
v(b). You must comply with all terms of services posted on any social networking site that You are using. If we become aware that You have received a suspension and or terminations notice from a third party web site, we reserve the right to terminate You from the Program.
v(c). Mentions on micro-blogs, such as (but not limited to) Twitter can only be used a maximum of five (5) times per day. Activities that consist of messaging that only include direct links that don't engage in a more detailed conversation are subject to removal from the Program.
V(d). Spam reports from any social media site are grounds for termination from the Program.
V(e). If You are not sure Your social networking methods are permitted, please ask, by contacting us using the e-mail address for approvals below.
vi. Other Restrictions
vi(a). We only work with Affiliates that are first approved through the Shareasale Site. If You are operating in a way that allows You to pay and/or approve of sub-affiliates (affiliates who work on Your behalf), You will not be permitted to participate in the Program.
vi(b). You will not act in any way that might interfere with the operation of or otherwise harm the Distribution Site. You will not attempt any unauthorized access to or use of the Distribution Site and will not attempt to access or gather any information regarding users of the Distribution Site.
vi(c). You may not post Yoobi’s prices for its Product(s), its policies or terms, its availability information, or similar information on Your web site apart from a link. You will not offer any discounts, rebates or other similar offers associated with Product(s) without our prior written approval.
c. Obtaining Approvals and Right to Monitor. If You have questions about any of these restrictions, please contact us at affiliates@Yoobi.com for clarification and to obtain our written approval for using a tool or other marketing device in connection with Your marketing activities for the Program. Any approval by us of Your tools or other activities will not, under any circumstances, void, nullify or constitute a waiver of Your indemnification obligations hereunder, the independent contractor nature of Your engagement or of any of our rights. Any Affiliate found to be in violation of the above terms is subject to immediate deactivation from the Program, in addition to all Your compensation being forfeited. We have the right, in our sole discretion, to monitor Your Program marketing activities at any time and from time to time to determine if You are in compliance with the terms of the Agreement and terminate Your participation in the Program for any failure to comply with the restrictions set forth in this Section 3. If we terminate for Your failure to comply with this Section 3 or other breach of this Agreement, we may withhold payment of Your compensation. You shall notify Yoobi by e-mail at affiliates@Yoobi.com of any known or suspected unauthorized uses of Yoobi marketing materials posted on any web site You own or control, or any known or suspected breach of security concerning any Yoobi marketing materials.
d. Fraud. Fraud is a serious offense, and will be treated by us as such. As used in this Agreement, “Fraud” means any action that intentionally attempts to create false sales, leads, or click-throughs using any method now or hereafter known, including, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of generating compensation. Misuse of Licensed Materials, including the use of banners or links in unapproved places, such as newsgroups, chat rooms, ICQ, message boards, banner networks, hit farms, counters, or guest books etc. is cause for Your account to be terminated with a forfeit of all Your compensation. Reporting or committing false or fraudulent transactions in an effort in increase Your compensation is illegal, will not be tolerated, and may result in termination of Your Program account and the forfeiture of all Your compensation and may result in the fraud being reported to legal authorities. If we suspect your are involved in Fraud, we may withhold all compensation that is owed to You.
4. ORDER PROCESSING. We will, subject to our business judgment and discretion, process orders placed by customers who follow the links from Your web site or other Affiliate Materials to our Distribution Site and who agree to the terms of our Distribution Site as we require, including, without limitation, the Distribution Site’s Terms of Use. We reserve the right to reject or withhold acceptance or fulfillment of orders for any reason, including, without limitation, the failure of any person or entity making an order to comply with our terms and conditions of sale. We will be solely responsible for all aspects of order processing and fulfillment.
5. POLICIES AND PRICING. Customers who purchase Product(s) sold by us through the Distribution Site or through the Program are customers of Yoobi, and all purchases and related transactions are subject to Yoobi’s terms and conditions of sales, rules, policies, agreements and operating procedures, all of which Yoobi may adopt and modify, in its sole discretion, from time to time. You do not have any authority to make any sale or representation or to act a distributor, dealer, or reseller on behalf of Yoobi or to bind Yoobi in any way, and You agree that You will not hold Yourself out as having authority to do so. Accordingly, You may not post Yoobi’s prices for its Products, its policies or terms, its availability information, or similar information on Your web site or other Affiliate Materials apart from a Link or Licensed Materials. This will not preclude You from considering Yoobi’s customers to also be Your customers for the purposes of offering products that You routinely offer for sale, other than Yoobi’s Products.
6. COMPENSATION. You agree to look solely to Shareasale.com, Inc. for payment of any compensation that may be owed to You pursuant to Your participation in the Program. You will be solely responsible for reporting and paying all income and other related taxes associated with the compensation paid to You and for all compensation benefits and taxes to or for Your employees and any third parties engaged by You in connection with Your participation in the Program. You will defend, indemnify and hold us harmless with respect to any taxes, penalties, damages, costs and expenses relating to payments made to You in connection with Your participation in the Program without withholding of taxes. We reserve the right in our sole and absolute discretion to withhold payment of any compensation owed to You if we have any suspicion or actual evidence of electronic or non-electronic tampering with any portion of the Program, or if a computer virus, bug, unauthorized intervention, Fraud, technical difficulties, or failures compromise or corrupt or affect the administration, integrity or security of the Program by You or a third party.
7. TERM AND TERMINATION. The term of this Agreement will begin upon our acceptance of Your Registration Application (“Effective Date”) and will end when terminated by either party in accordance with this Agreement (“Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination. If we terminate this Agreement because You are in material breach of a term hereof, we may withhold compensation payable to You and we may terminate this Agreement without further obligation to You including the obligation to pay compensation. All licenses granted herein terminate automatically upon termination of this Agreement, and the licensee of any subject matter will immediately cease use of any Licensed Materials. In addition, each party may terminate any license in part at any time by giving the other written notice that specified licensed subject matter may no longer be used, or may no longer be used in a particular manner.
8. REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
b. Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (iii) any provision of Your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon Your assets or properties.
c. You are the sole and exclusive owner or authorized licensee of the Affiliate Materials and have the right and power to grant to us the license to use the Affiliate Materials in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity. In addition, Your performance under this Agreement will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
e. There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to the Affiliate Materials, and, to the best of Your knowledge, there is no basis for any such claim, action or proceeding.
9. DISCLAIMERS. We make no express or implied warranties or representations with respect to the Program or any Product(s) or other insurance sold by us through the Program or otherwise on the Distribution Site, and WE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. In addition, we make no representation or warranty that the operation of the Distribution Site, the links, or our procedures and systems tracking sales generated by Your links will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
10. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES; ANY LOSS OF REVENUE, PROFITS, OR DATA; OR BUSINESS INTERRUPTION ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ALLEGED IN CONTRACT OR EQUITY. IN THE EVENT THE FOREGOING LIMITATION IS MODIFIED OR CURTAILED AS A MATTER OF LAW, OUR AGGREGATE MONETARY LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT IN ANY EVENT EXCEED THE TOTAL COMPENSATION PAID TO YOU UNDER THIS AGREEMENT IN THE PREVIOUS THREE (3) CALENDAR MONTHS.
11. INDEMNIFICATION. You hereby agree to indemnify, defend and hold harmless Yoobi, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all actual or threatened claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively, the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on: (i) any claim or threatened claim that the Affiliate Materials infringe on the rights of any third party; (ii) the breach or alleged breach of any covenant, agreement, representation or warranty made by You herein; (iii) any claim related to Your web site, the conduct of Your business, or Your goods or services; (iv) Your violation of any law, rule, regulation, ordinance or applicable policy of or agreement in connection with the Program or Your obligations or services hereunder; or (v) Your infringement, misappropriation or other violation of any third party intellectual, property, contractual or other right.
12. GOVERNING LAW, JURISDICTION AND NO CLASS ACTIONS. We hope we never get into any disputes with You in connection with our Program, but just in case, here are some things that would apply:
a. GOVERNING LAW/JURISDICTION. THIS AGREEMENT AND THE INTERPRETATION THEREOF WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE PROGRAM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
b. Arbitration. You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to the Program or this Agreement not otherwise resolved between You and Yoobi will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to Yoobi’s intellectual property rights, including any such rights Yoobi claims that may be in dispute, shall only be subject to arbitration if Yoobi’s President agrees in writing to have such subject to arbitration. However, before either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, and the proposed resolution. We will send notice to You based on the contact information You have provided us and notice to us must be sent to: Yoobi, LLC 215 Arena Street, El Segundo, CA 90245 (Attn: Legal Department). Yoobi and You agree to make attempts to resolve any dispute. If the parties cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the dispute to formal arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service.
In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in this Agreement and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court. If an in-person hearing is required, the arbitration hearing will be conducted in Los Angeles, California (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it. The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires Yoobi to pay a greater portion of such fees in order for the arbitration provision to be enforceable, Yoobi shall have the discretion to elect to pay such fees and proceed to arbitration. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or http://www.jamsadr.com. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties. Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
c. No Class Actions. To the fullest extent permitted by applicable law, You agree that any and all disputes, claims and causes of action You may have in connection with or related to the Program or this Agreement will be resolved individually, without resort to any form of class action.
13. INJUNCTIVE RELIEF.
You acknowledge that a violation of this Agreement by You, and particularly any provision set forth in Sections 2, 3, 8 or 11, would cause irreparable harm to Yoobi that could not be adequately compensated just by monetary damages. In addition to other relief, You agree that a preliminary and permanent injunctive relief will be available by us without the necessity of posting bond to prevent any actual or threatened violation of such provisions. You irrevocably waive Your right to any injunctive or equitable relief against us and You are limited to claims for money damages (if any).
14 GENERAL PROVISIONS.
a. Entire Agreement. This Agreement is the entire Agreement between the parties with respect to its subject matter, and it supersedes all prior agreements, representations and understandings, whether express or implied and whether oral or written.
b. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to Your address on our records, or the posting on the Distribution Site of a change notice or a new agreement designated by us to be applicable to You or a group of persons or entities including You, is agreed to constitute sufficient notice of a binding modification of this Agreement. If any modification is unacceptable to You, Your only recourse is to terminate this Agreement pursuant to Section 7 of this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on the Distribution Site will constitute binding acceptance of the modified terms. It is Your responsibility to have a working email address available in the Shareasale Site so that such notices can be delivered.
c. Assignment. You may not assign this Agreement or delegate Your obligations, in whole or in part, by operation of law or otherwise, without our prior written consent. We may freely assign this Agreement, in whole or in part. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
d. Waiver. Our failure to enforce Your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
e. Relationship of Parties. You and Yoobi are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers, enter into any contracts, or make any representations on our behalf, or to act as a distributor, seller, or reseller of any Product.
PLEASE READ THIS AGREEMENT CAREFULLY! THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT BETWEEN YOU AND YOOBI (DEFINED BELOW). YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION FOR THE YOOBI AFFILIATE PROGRAM (THE “PROGRAM”) OFFERED THROUGH SHAREASALE.COM (THE “SHAREASALE SITE”). BY REGISTERING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO AGREE TO THIS AGREEMENT.
THIS YOOBI AFFILIATE PROGRAM TERMS OF SERVICE AGREEMENT (the “Agreement”) is made by and between Yoobi, LLC (“Yoobi”, “we”, “our” or “us”), and you, as an affiliate (“You”, “Your” or “Affiliate”) for purposes of the Program. The Program permits Affiliates to promote Yoobi Product(s), available for sale at:your website (the “Distribution Site”). By “Product(s)”, we mean the specific item or items that are advertised on the Distribution Site that are part of Yoobi’s products that we make available for sale in connection with the Program.
1. PROGRAM REGISTRATION, APPROVAL PROCESS AND PARTICIPATION.
a. Program Registration and Approval. To become a Program Affiliate, You must first maintain an active affiliate account and be in good standing of the Shareasale Site. Once You have an account with the Shareasale Site, You may apply to become a Program Affiliate by filling out the registration materials (“Registration Application”) and submitting it to Yoobi through the Shareasale Site. You understand and agree that Yoobi will use a variety of methods to confirm Your eligibility to become a Program Affiliate, including, without limitation, contacting references and other methods to verify Your Registration Application is accurate. By submitting Your Registration Application to become a Program Affiliate, You explicitly give permission to Yoobi and its vendors to independently confirm Your eligibility to participate in the Program. Yoobi reserves the right to continue to verify the accuracy of Your Registration Application at any time as long as You are a Program Affiliate. We will endeavor to provide You with notice whether Your Registration Application is approved within three (3) business days of our receipt of Your Registration Application. We may deny You access to the Program, in our sole discretion for any or no reason, without notice and without liability.
b. Affiliate Participation in the Program. We grant You the non-exclusive right to participate in the Program to promote and advertise Product(s) that may be sold by us to third parties through the Distribution Site, subject to the terms and conditions hereof. We reserve the right to terminate this Agreement, Your Program account and Your participation in the Program at any time and for any or no reason, in our sole and absolute discretion by giving You notice at Your e-mail address that we have in our records for You. The reasons we may terminate this Agreement, Your Program account and Your participation in the Program, include, without limitation, failure to keep Your web site up to date, or Your web site or other marketing materials incorporate images or content that we determine to be detrimental to the Yoobi brands or incorporate materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party. In addition to this Agreement, You acknowledge that You have carefully read and agree to comply with all of Yoobi’s policies and procedures as may be provided to You or are available on the Distribution Site from time to time, including, without limitation, the Distribution Site’s Terms of Use available at [Insert link], all of which are incorporated into and made part of this Agreement. You agree that if a conflict exists between this Agreement and any of the terms and conditions of the documents referenced in the previous sentence, this Agreement will control.
2. LICENSES.
a. Yoobi License. We grant You a non-exclusive, non-transferable, revocable license to use our trademarks, service marks, logos, links, Yoobi marketing materials and other intellectual property (all only in the form(s) provided to You by us for use in connection with the Program) (collectively, “Licensed Materials”) solely: (i) to promote and advertise the sale of Product(s) in connection with the Program in accordance with this Agreement, and (ii) if You are a member in good standing of the Program. You may not alter, modify, or change the Licensed Materials in any way without our express prior written approval. You will not make any specific use of any Licensed Materials for purposes other than advertising and promoting the sale of Product(s). You agree that You will not present the Licensed Materials in combination with any other name or mark, in connection with Your own goods or services, or in any manner that may suggest or imply that You or Your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance. You agree not to use the Licensed Materials, the Distribution Site, content or other materials or property in conjunction with, or to promote any activity that, in our sole discretion, is detrimental to the Yoobi brand or brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light. The determination of whether You are using the Licensed Materials, the Distribution Site, Your web site, or any other content or materials related to this Agreement in the best interest of Yoobi is left to our sole and absolute discretion. We reserve all of our rights in the Licensed Materials and our other proprietary rights. Your use of our Licensed Materials does not give You any rights in them other than as described in this Agreement. We may revoke Your license to the Licensed Materials at any time, upon notice to You, at which time You agree to immediately cease using the Licensed Materials. We may from time to time e-mail You with any changes or updates to the Licensed Materials, the Program and/or Yoobi’s related products and You must promptly comply with any directions from us in connection therewith.
b. Affiliate License. You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use Your names, titles, logos, trademarks, trade names, and service marks, copyrights, and any other materials created or used by You (which must be approved by us in writing) in connection with the Program (collectively, the “Affiliate Materials”) to advertise, market, promote and publicize in any manner the Program, Your participation in the Program and/or to promote Yoobi or our Product(s). Yoobi will not be required to use the Affiliate Materials or to advertise, market, promote or publicize Your affiliation with the Program. You represent and warrant that the Affiliate Materials, Your web site and any other materials created or used by You in connection with the Program will not contain anything that, in Yoobi’s sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with Yoobi’s public image, may be in bad taste, are indecent or in Yoobi’s opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Yoobi or any affiliated and/or subsidiary companies. You are responsible for ensuring that the Affiliate Materials and any other materials posted on Your web site do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. You must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, portrait, voice or likeness and You agree to provide such written permission to us promptly upon request. You will be solely responsible for the development, operation and maintenance of Your web site, for all materials that appear on Your web site, and for all marketing and promotion You conduct on Your web site.
c. Ownership. Subject to the limited licenses above, as between Yoobi and You, each party will exclusively own and control its respective intellectual property. All goodwill that accrues from the licensed use of a party’s trademarks hereunder will inure exclusively to the party that owns the trademark.
3. RESTRICTIONS.
a. Compliance with Law. Without limiting anything else in this Agreement, and notwithstanding anything to the contrary, You will at all times comply with all government laws and regulations, and voluntary industry standards, applicable to the Program and Your web site, including, without limitation, labor and employment laws and anti-bribery and corruption laws (e.g., the United States Foreign Corrupt Practices Act), The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), Federal Communications Commission (“FCC”), Federal Trade Commission (“FTC”) and other government regulations and guidelines, and will maintain appropriate customary high quality standards during the Term (defined below). Further, in any Affiliate Materials, You will conspicuously disclose Your affiliate status with respect to the Program and that You receive compensation from Yoobi for promoting the Product(s), all in compliance with the requirements of the FTC’s Endorsement and Testimonial Guidelines, available at: http://www.ftc.gov/opa/2009/10/endortest.shtm.
b. Disallowed Activities. Without limiting anything to the contrary in this Agreement, You will not engage in any of the following activities:
i. Restrictions on Use of Keyword Advertising (PPC, etc.)
i(a). If You engage in pay-per-click or other forms of keyword advertising, You will not provide links directly to the Distribution Site. All pay-per-click advertising needs to link to Your web site or Affiliate Materials, not directly to the Distribution Site.
i(b). You are not permitted to participate in any trademark bidding, including bidding on terms of our competitors. The terms Yoobi or any variations or misspellings of the domain name are not allowed. Also, please see Section 3(b)(ii)(b) below.
ii. Restrictions For Affiliates That Operate Coupon/Deal Web Sites or Platforms
ii(a). You may not use misleading text on affiliate links, buttons or images to imply that anything besides currently pre-authorized deals or other savings are available, as pre-approved in writing by us.
ii(b). You may not bid on any terms utilizing the word coupons or other similar phrases implying coupons are available if there is not an Yoobi pre-approved coupon posted or no coupons or savings are available that have been pre-approved by us.
ii(c). You may not generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor directly to the Distribution Site.
ii(d). Your users must be able to see all coupon, deal, and/or savings information and details before an affiliate cookie is set (i.e., "click here to see coupons and open a window to merchant site" is NOT permitted).
ii(e). Your web sites or platforms may not have "click for (or to see) coupon, deal and/or savings" or any variation, when there are no coupons or deals made available by us for use in connection with the Program. Affiliates with such text on their Affiliate Materials may be terminated from the Program immediately.
iii. Restrictions on Use of Web Sites and Other Technologies
iii(a). You may not wrap, frame or display in an iframe the Distribution Site or Product(s) to give the appearance that the Product(s) are being offered from Your web site unless, they are being displayed using an Yoobi approved third party tool. Framing in an invisible frame is expressly prohibited. All links to the Distribution Site must be done in the same full window or in a new browser window.
iii(b). No software downloads or technology may be used by You to intercept, redirect or divert traffic and/or referral fees from the Distribution Site or any of Yoobi’s affiliated web sites. This restriction includes browser helper objects (BHOs), spyware, adware, parasiteware(tm) and similar products.
iii(c). Traffic Exchanges, auto-surfing or pay-to-surf promotions, pop-ups, pop-unders, and other seen or unseen setting of cookies are NOT permitted.
iii(d). Using “Yoobi” with or without hyphens or other characters, or any misspellings in Your top level domain name are prohibited. Any use of the Yoobi intellectual property must be approved in writing by us.
iii(e). You may not maintain a web site that is a link farm or banner farm (i.e., there is no content on the site other than lists of text links or banners).
ii(f). You may place our banners or links within the content of Your web site or Your non-spam email newsletters. All other uses of banners or links, such as newsgroups, chat rooms, ICQ or other instant messaging, message boards, banner networks, hit farms, counters, or guestbooks, etc. are NOT permitted.
iii(g). You are not allowed to reference the Distribution Site on any web sites with adult, hate, discrimination, violent or other controversial content or web sites that violate intellectual property or other third party rights or any law, including, but not limited to, WAREZ, CRACKING, and HACKING sites, and sites that contain adware, spyware, malware or require other downloadable software.
iv. Restrictions on Use of E-mail
iv(a). All e-mail activities in connection with the Program must be approved in writing in advance of the sending of the e-mail. You may not engage in spamming, unsolicited mass emailing or any unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003. This does not exclude You from making people aware of the Product(s) or communicating by bulk email to a mailing list that complies with the CAN-SPAM Act, and all other applicable laws.
iv(b). All email advertising that includes advertising for Product(s) needs to link to a landing page on Your web site and not to the Distribution Site, unless written permission is obtained in advance of the sending of the e-mail.
v. Restrictions on Use of Social Media
v(a). You are permitted to use social media to promote Your activities in connection with the Program as long as they only incorporate Licensed Materials and do not otherwise violate the terms of this Agreement. You are not permitted to claim to be us in connection with any of your activities.
v(b). You must comply with all terms of services posted on any social networking site that You are using. If we become aware that You have received a suspension and or terminations notice from a third party web site, we reserve the right to terminate You from the Program.
v(c). Mentions on micro-blogs, such as (but not limited to) Twitter can only be used a maximum of five (5) times per day. Activities that consist of messaging that only include direct links that don't engage in a more detailed conversation are subject to removal from the Program.
V(d). Spam reports from any social media site are grounds for termination from the Program.
V(e). If You are not sure Your social networking methods are permitted, please ask, by contacting us using the e-mail address for approvals below.
vi. Other Restrictions
vi(a). We only work with Affiliates that are first approved through the Shareasale Site. If You are operating in a way that allows You to pay and/or approve of sub-affiliates (affiliates who work on Your behalf), You will not be permitted to participate in the Program.
vi(b). You will not act in any way that might interfere with the operation of or otherwise harm the Distribution Site. You will not attempt any unauthorized access to or use of the Distribution Site and will not attempt to access or gather any information regarding users of the Distribution Site.
vi(c). You may not post Yoobi’s prices for its Product(s), its policies or terms, its availability information, or similar information on Your web site apart from a link. You will not offer any discounts, rebates or other similar offers associated with Product(s) without our prior written approval.
c. Obtaining Approvals and Right to Monitor. If You have questions about any of these restrictions, please contact us at affiliates@Yoobi.com for clarification and to obtain our written approval for using a tool or other marketing device in connection with Your marketing activities for the Program. Any approval by us of Your tools or other activities will not, under any circumstances, void, nullify or constitute a waiver of Your indemnification obligations hereunder, the independent contractor nature of Your engagement or of any of our rights. Any Affiliate found to be in violation of the above terms is subject to immediate deactivation from the Program, in addition to all Your compensation being forfeited. We have the right, in our sole discretion, to monitor Your Program marketing activities at any time and from time to time to determine if You are in compliance with the terms of the Agreement and terminate Your participation in the Program for any failure to comply with the restrictions set forth in this Section 3. If we terminate for Your failure to comply with this Section 3 or other breach of this Agreement, we may withhold payment of Your compensation. You shall notify Yoobi by e-mail at affiliates@Yoobi.com of any known or suspected unauthorized uses of Yoobi marketing materials posted on any web site You own or control, or any known or suspected breach of security concerning any Yoobi marketing materials.
d. Fraud. Fraud is a serious offense, and will be treated by us as such. As used in this Agreement, “Fraud” means any action that intentionally attempts to create false sales, leads, or click-throughs using any method now or hereafter known, including, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of generating compensation. Misuse of Licensed Materials, including the use of banners or links in unapproved places, such as newsgroups, chat rooms, ICQ, message boards, banner networks, hit farms, counters, or guest books etc. is cause for Your account to be terminated with a forfeit of all Your compensation. Reporting or committing false or fraudulent transactions in an effort in increase Your compensation is illegal, will not be tolerated, and may result in termination of Your Program account and the forfeiture of all Your compensation and may result in the fraud being reported to legal authorities. If we suspect your are involved in Fraud, we may withhold all compensation that is owed to You.
4. ORDER PROCESSING. We will, subject to our business judgment and discretion, process orders placed by customers who follow the links from Your web site or other Affiliate Materials to our Distribution Site and who agree to the terms of our Distribution Site as we require, including, without limitation, the Distribution Site’s Terms of Use. We reserve the right to reject or withhold acceptance or fulfillment of orders for any reason, including, without limitation, the failure of any person or entity making an order to comply with our terms and conditions of sale. We will be solely responsible for all aspects of order processing and fulfillment.
5. POLICIES AND PRICING. Customers who purchase Product(s) sold by us through the Distribution Site or through the Program are customers of Yoobi, and all purchases and related transactions are subject to Yoobi’s terms and conditions of sales, rules, policies, agreements and operating procedures, all of which Yoobi may adopt and modify, in its sole discretion, from time to time. You do not have any authority to make any sale or representation or to act a distributor, dealer, or reseller on behalf of Yoobi or to bind Yoobi in any way, and You agree that You will not hold Yourself out as having authority to do so. Accordingly, You may not post Yoobi’s prices for its Products, its policies or terms, its availability information, or similar information on Your web site or other Affiliate Materials apart from a Link or Licensed Materials. This will not preclude You from considering Yoobi’s customers to also be Your customers for the purposes of offering products that You routinely offer for sale, other than Yoobi’s Products.
6. COMPENSATION. You agree to look solely to Shareasale.com, Inc. for payment of any compensation that may be owed to You pursuant to Your participation in the Program. You will be solely responsible for reporting and paying all income and other related taxes associated with the compensation paid to You and for all compensation benefits and taxes to or for Your employees and any third parties engaged by You in connection with Your participation in the Program. You will defend, indemnify and hold us harmless with respect to any taxes, penalties, damages, costs and expenses relating to payments made to You in connection with Your participation in the Program without withholding of taxes. We reserve the right in our sole and absolute discretion to withhold payment of any compensation owed to You if we have any suspicion or actual evidence of electronic or non-electronic tampering with any portion of the Program, or if a computer virus, bug, unauthorized intervention, Fraud, technical difficulties, or failures compromise or corrupt or affect the administration, integrity or security of the Program by You or a third party.
7. TERM AND TERMINATION. The term of this Agreement will begin upon our acceptance of Your Registration Application (“Effective Date”) and will end when terminated by either party in accordance with this Agreement (“Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination. If we terminate this Agreement because You are in material breach of a term hereof, we may withhold compensation payable to You and we may terminate this Agreement without further obligation to You including the obligation to pay compensation. All licenses granted herein terminate automatically upon termination of this Agreement, and the licensee of any subject matter will immediately cease use of any Licensed Materials. In addition, each party may terminate any license in part at any time by giving the other written notice that specified licensed subject matter may no longer be used, or may no longer be used in a particular manner.
8. REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms.
b. Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which You are subject, (ii) any order, judgment, or decree applicable to You or binding upon Your assets or properties, (iii) any provision of Your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to You or binding upon Your assets or properties.
c. You are the sole and exclusive owner or authorized licensee of the Affiliate Materials and have the right and power to grant to us the license to use the Affiliate Materials in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity. In addition, Your performance under this Agreement will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby.
e. There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any affiliate of Yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to the Affiliate Materials, and, to the best of Your knowledge, there is no basis for any such claim, action or proceeding.
9. DISCLAIMERS. We make no express or implied warranties or representations with respect to the Program or any Product(s) or other insurance sold by us through the Program or otherwise on the Distribution Site, and WE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. In addition, we make no representation or warranty that the operation of the Distribution Site, the links, or our procedures and systems tracking sales generated by Your links will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
10. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES; ANY LOSS OF REVENUE, PROFITS, OR DATA; OR BUSINESS INTERRUPTION ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ALLEGED IN CONTRACT OR EQUITY. IN THE EVENT THE FOREGOING LIMITATION IS MODIFIED OR CURTAILED AS A MATTER OF LAW, OUR AGGREGATE MONETARY LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT IN ANY EVENT EXCEED THE TOTAL COMPENSATION PAID TO YOU UNDER THIS AGREEMENT IN THE PREVIOUS THREE (3) CALENDAR MONTHS.
11. INDEMNIFICATION. You hereby agree to indemnify, defend and hold harmless Yoobi, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all actual or threatened claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively, the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on: (i) any claim or threatened claim that the Affiliate Materials infringe on the rights of any third party; (ii) the breach or alleged breach of any covenant, agreement, representation or warranty made by You herein; (iii) any claim related to Your web site, the conduct of Your business, or Your goods or services; (iv) Your violation of any law, rule, regulation, ordinance or applicable policy of or agreement in connection with the Program or Your obligations or services hereunder; or (v) Your infringement, misappropriation or other violation of any third party intellectual, property, contractual or other right.
12. GOVERNING LAW, JURISDICTION AND NO CLASS ACTIONS. We hope we never get into any disputes with You in connection with our Program, but just in case, here are some things that would apply:
a. GOVERNING LAW/JURISDICTION. THIS AGREEMENT AND THE INTERPRETATION THEREOF WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE PROGRAM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
b. Arbitration. You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to the Program or this Agreement not otherwise resolved between You and Yoobi will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to Yoobi’s intellectual property rights, including any such rights Yoobi claims that may be in dispute, shall only be subject to arbitration if Yoobi’s President agrees in writing to have such subject to arbitration. However, before either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, and the proposed resolution. We will send notice to You based on the contact information You have provided us and notice to us must be sent to: Yoobi, LLC 215 Arena Street, El Segundo, CA 90245 (Attn: Legal Department). Yoobi and You agree to make attempts to resolve any dispute. If the parties cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the dispute to formal arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service.
In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in this Agreement and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court. If an in-person hearing is required, the arbitration hearing will be conducted in Los Angeles, California (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it. The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires Yoobi to pay a greater portion of such fees in order for the arbitration provision to be enforceable, Yoobi shall have the discretion to elect to pay such fees and proceed to arbitration. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or http://www.jamsadr.com. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties. Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
c. No Class Actions. To the fullest extent permitted by applicable law, You agree that any and all disputes, claims and causes of action You may have in connection with or related to the Program or this Agreement will be resolved individually, without resort to any form of class action.
13. INJUNCTIVE RELIEF.
You acknowledge that a violation of this Agreement by You, and particularly any provision set forth in Sections 2, 3, 8 or 11, would cause irreparable harm to Yoobi that could not be adequately compensated just by monetary damages. In addition to other relief, You agree that a preliminary and permanent injunctive relief will be available by us without the necessity of posting bond to prevent any actual or threatened violation of such provisions. You irrevocably waive Your right to any injunctive or equitable relief against us and You are limited to claims for money damages (if any).
14 GENERAL PROVISIONS.
a. Entire Agreement. This Agreement is the entire Agreement between the parties with respect to its subject matter, and it supersedes all prior agreements, representations and understandings, whether express or implied and whether oral or written.
b. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to Your address on our records, or the posting on the Distribution Site of a change notice or a new agreement designated by us to be applicable to You or a group of persons or entities including You, is agreed to constitute sufficient notice of a binding modification of this Agreement. If any modification is unacceptable to You, Your only recourse is to terminate this Agreement pursuant to Section 7 of this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on the Distribution Site will constitute binding acceptance of the modified terms. It is Your responsibility to have a working email address available in the Shareasale Site so that such notices can be delivered.
c. Assignment. You may not assign this Agreement or delegate Your obligations, in whole or in part, by operation of law or otherwise, without our prior written consent. We may freely assign this Agreement, in whole or in part. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
d. Waiver. Our failure to enforce Your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
e. Relationship of Parties. You and Yoobi are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers, enter into any contracts, or make any representations on our behalf, or to act as a distributor, seller, or reseller of any Product.