These Terms and Conditions (this "Agreement") are made and entered into by and between Company APPANIAC Limited, and you, ("you" or "Affiliate"), the party submitting an application to become an Company affiliate. This Agreement governs your participation in the affiliate program of Company ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by Company or a third party (a "Client") and may link to a specific web source or application for that particular Offer ("Landing Page"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you consent to all the terms and conditions of this Agreement and the additional terms and conditions on pages within the Affiliate Program.
1. ENROLLMENT IN THE AFFILIATE PROGRAM
You agree to accurately complete the application to become an affiliate, provide us with updates to the application, and agree not to use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
2. GOVERNING AGREEMENTS
3. OBLIGATIONS OF THE PARTIES
Except as otherwise provided in this Agreement or with the consent of Company, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, clients and affiliates lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same. Any credit references are issued only after parties agreed that in writing. No part of the Software, conversation, invoices, payment notifications and other financial information can be used by Affiliates as a credit reference from Company.
5. LIMITED LICENSE & INTELLECTUAL PROPERTY
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement and Insertion Order for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Landing Page. You may not alter, modify, manipulate or create derivative works of the Links or any Company graphics, creative, copy or other materials owned by, or licensed to, Company in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your account at anytime by giving you a written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Company's trademarks, service marks, copyrights, patents or trade secrets. You agree that Company may use any suggestion, comment or recommendation you choose to provide to Company without compensation. All rights not expressly granted in this Agreement are reserved by Company.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately stop running all Advertising Campaigns and delete all Links, plus all Company or Client intellectual property, and will cease representing yourself as a Company or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Company reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Company determines that you have violated this Agreement, (ii) Company receives any complaints about your participation in the Affiliate Program which Company reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Company reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
8. E-MAIL & TEXT MESSAGING PRACTICES; ANTI-SPAM POLICY; TCPA COMPLIANCE
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, Company shall make all determinations about fraudulent activity in its sole discretion. If you fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), you will forfeit your entire commission for all programs and your account will be terminated. Company reserves the sole judgment in determining fraud, and you agree to this clause. It is the obligation of the Affiliate to prove to Company that they are NOT committing fraud. Company will withhold your payment until you have satisfactorily provided evidence that you are not defrauding the system. Company may determine an activity as a fraud when you (1) have click-through rates that are much higher than industry averages and where solid justification is not evident; (2) have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (3) have shown fraudulent leads as determined by Company clients; (4) use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs; or (5) use automated means to increase the number of clicks through the Links or completion of any required information, spyware, stealware, cookie-stuffing or any other deceptive acts or click-fraud..
10. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Company represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Company's own business operations or Company's proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Company may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Company to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
12. INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
13. MUTUAL INDEMNIFICATION
Affiliate hereby agrees to indemnify, defend and hold harmless Company and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or Company or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). Company hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that Company is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. COMPANY DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF COMPANY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. COMPANY’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY APPANIAC Limited IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
16. COMPLIANCE WITH LAW
You agree that you will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257 (“Section 2257”), and the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”).
17. GOVERNING LAW & MISCELLANEOUS
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by Company to enforce the terms of this Agreement. This Agreement contains the entire agreement between Company and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Company shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Company "clicks through" or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without Company's prior written consent. Company may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. Any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting an application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. Relations between parties and all IOs will be governed by the laws of the State of California, USA.
18. FORCE MAJEURE
An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following: (i) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority; (ii) earthquakes, flood, fire or other physical natural disaster, but excluding weather conditions regardless of severity; and (iii) strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this contract. Neither party is responsible for any failure to perform its obligations under this contract, if it is prevented or delayed in performing those obligations by an event of force majeure. Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this contract must immediately notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfil its or their obligations under the contract. An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.
19. DISPUTE RESOLUTION
You agree that any claim or dispute between you and Company arising out of or relating in any way to this Agreement will be resolved through final, binding arbitration. This obligation applies regardless of whether the claim or dispute involves a tort, fraud, breach of contract, misrepresentation, product liability, negligence, violation of a statute, or any other legal or equitable theory. Included are all claims arising out of or relating to any aspect of our relationship, claims that may arise after the termination of this Agreement. You agree that each of us may bring claims against the other only in an individual capacity and not in a class action or representative proceeding. All arbitrations under this Agreement shall be conducted on an individual (and not a class-wide) basis and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that this Agreement specifically prohibits you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person. A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and setting forth the specific relief sought. All Notices to Company shall be sent will be sent to the contact as noted on the IO. Upon receipt of a Notice, the other party shall have a thirty-day (30) period in which it may satisfy the claim against it by fully curing the dispute and/or providing all the relief requested in the Notice. After the expiration of such thirty-day (30) cure period, you or Company may commence an arbitration proceeding. Parties agreed that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in California, and the parties consent to the jurisdiction of such courts.