- Affiliate... Must provide a valid email address and agree to receive email notifications from BIODYNAMIX®.
- Must abide all applicable laws including but not limited to CAN-SPAM Compliance laws for email
- Must abide SMS compliance, must have prior approval for SMS promotions
- Must abide the terms of the respective platforms being used to promote (Facebook, WordPress, Google etc).
- May not represent BIODYNAMIX®, its representatives or products in a negative light.
- May not make false claims.
- Must only use approved marketing materials.
- May not copy BIODYNAMIX®’s marketing resources or share them
- May not represent yourself as Dr. Mark Weis or BIODYNAMIX®
- May not resell products on Amazon or Ebay
- Chargebacks and refunds must remain at an acceptable rate, subject to Company’s discretion
- Trademark and brand Bidding is prohibited even in the context of a review (terms include but are not limited to BIODYNAMIX®, Dr. Mark Weis, and product names).
- Facebook promotions require prior approval
- Marketing to minors is expressly prohibited
- Must use exclusion/suppression and opt out links provided by BIODYNAMIX®
- Affiliate may not use or distribute our marketing resources (email creatives, banners, webpages etc) to sell other products
- Commissions will be paid by ClickBank either on a cost per acquisition or revenue share basis for verified conversions
- Chargebacks and refunds will be monitored and can be used as a basis for withholding commissions
- Payment terms are subject to change without prior notice
- Commissions may be withheld if these terms are violated
- We reserve the right to withhold commissions in the case of fraud or damages
BIODYNAMIX® AFFILIATE CAMPAIGN TERMS
Social Media Marketing
SMS or Other Form of Text Message Marketing
Affiliate Creative (with approval)
EU Resident Actions
AFFILIATES ARE NOT ALLOWED TO LINK DIRECTLY TO AN ORDER FORM OR CHECKOUT PAGE WITHOUT EXPRESSED WRITTEN PERMISSION FROM BIODYNAMIX®. AFFILIATES MUST USE THE ABOVE METHODS IN ACCORDANCE WITH THE TERMS OUTLINED BELOW.
AFFILIATE CAMPAIGN TERMS
Affiliate acknowledges and agrees that it has read and provided its Electronic Acceptance to these Affiliate Campaign Terms (“Campaign Terms”). These Campaign Terms shall be incorporated into, and governed by, that certain Affiliate Agreement previously entered into by and between Affiliate and All Good Enterprises Limited, d/b/a BIODYNAMIX® (the “Affiliate Agreement,” and together with these Campaign Terms, the “Agreement”). To the extent that anything in or associated with these Campaign Terms is in conflict or inconsistent with the Affiliate Agreement, these Campaign Terms shall take precedence unless otherwise stated to the contrary in the Affiliate Agreement. Any capitalized terms not defined herein shall have the meaning set forth in the Affiliate Agreement.
This Affiliate Agreement (“Affiliate Agreement”) is entered into on the date that Affiliate provides its Electronic Acceptance (as defined below) to the terms of this Affiliate Agreement (“Effective Date”) by and between BIODYNAMIX®, (“Company”), and the entity that provides its Electronic Acceptance (as defined below) to the terms of this Affiliate Agreement (“Affiliate”). Company and Affiliate may hereinafter be collectively referred to as the “Parties,” and each individually as a “Party.” This Affiliate Agreement incorporates herein by reference the Affiliate Campaign Terms entered into by and between the Parties (collectively, the “Campaign Terms,” and together with this Affiliate Agreement, the “Agreement”). The Agreement sets forth the Parties’ respective rights and obligations concerning Affiliate’s generation of: (a) sales of certain products (collectively, “Campaign Products”) offered by Company and/or the third-party advertisers specified in the Campaign Terms (collectively, “Advertisers”); (b) certain consumer data records or leads; and/or (c) other designated consumer actions (collectively, “Actions”), as further described herein and in the applicable Campaign Terms. To the extent that anything in or associated with this Affiliate Agreement is in conflict or inconsistent with any Campaign Terms, the Campaign Terms shall take precedence unless otherwise stated to the contrary herein.
1. Sub-Affiliates. For purposes of the Agreement, any reference to Affiliate shall include any and all in-house and/or third-party marketing agents, partners, affiliates and/or publishers providing services and/or Actions by and through, or on behalf of, Affiliate in connection with the Action-generation services (“Services”) contemplated hereunder (collectively, “Sub-Affiliates”). Affiliate agrees not to broker or resell any Campaigns or Creative (as defined below) to any other party (other than the previously approved Sub-Affiliates as permitted hereunder) without the express written permission of Company in each instance. Affiliate may only utilize Sub-Affiliates where Affiliate provides Company with a list of intended Sub-Affiliates (as well as the required information set forth below) and Company has provided its express prior written consent for Affiliate to use each such Sub-Affiliate. Affiliate shall remain, at all times, fully liable for any and all acts and/or omissions of its Sub-Affiliates, and for ensuring that each such Sub-Affiliate complies with any and all obligations, restrictions and other terms applicable to Affiliate hereunder. In addition, Affiliate shall ensure that Company is listed as an express third-party beneficiary in any agreement between Affiliate and any Sub-Affiliates.
2. Actions. In connection with the Action-generation Services to be provided hereunder, and depending on which methods are authorized in the applicable Campaign Terms, Affiliate may: (a) send Creative via e-mail (“Affiliate E-mail”) to individuals in the proprietary database(s) of Affiliate and/or its Sub-Affiliates (collectively, “Affiliate Database”); and/or (b) feature certain Creative on websites owned and/or operated by Affiliate and/or its Sub-Affiliates (collectively, “Affiliate Websites”). In addition, solely where expressly permitted in the Campaign Terms, Affiliate may send Creative via SMS text messages to individuals within the Affiliate Database (collectively, “Affiliate Texts,” and together with the Affiliate E-mail, Affiliate Database and Affiliate Websites, the “Affiliate Media”).
3. Consent. Affiliate represents and warrants that each individual in the Affiliate Database who is contacted by Affiliate in connection with: (a) e-mail marketing Services, has provided her/his: (i) “Affirmative Consent,” as defined in the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), to receive commercial e-mail from Affiliate; and (ii) requisite consent (“CASL Consent”) to receive “Commercial E-Mail Messages,” as defined under Canada’s Anti-Spam Legislation (“CASL”), from Affiliate, where such individuals are residents of Canada; and (b) solely where permitted in the applicable Campaign Terms, SMS text message marketing, has provided her/his “prior express written consent” (as defined in the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”)) to receive SMS text messages delivered via automated means from Affiliate (“TCPA Consent”). Affiliate shall obtain evidence of TCPA Consent by using either Jornaya’s Lead ID or Active Prospect’s TrustedForm. Where Affiliate uses Jornaya, Affiliate shall maintain the Lead ID and Compliance Report for each TCPA Consent obtained (“Jornaya Consent Records”). Where Affiliate uses TrustedForm, Affiliate shall maintain the Certificate ID and Certificate of Authenticity for each TCPA Consent obtained (“TrustedForm Consent Recordsand together with the Jornaya Consent Records, the “TCPA Consent Records”). Affiliate shall retain: (i) records of each such individual’s Affirmative Consent and/or other CASL Consent (collectively, the “E-mail Consent Records”); and (ii) TCPA Consent Records (together with the E-Mail Consent Records, the “Consent Records”), for a minimum of five (5) years following collection of same. Affiliate must, within two (2) business days of receipt of Company’s request, provide the: (A) applicable Consent Records to Company; and (B) name, date, time, IP address and referral URL where the applicable individual(s) provided Affirmative Consent, CASL Consent and/or TCPA Consent, as applicable.
4. Marketing Restrictions.
(a) Unless expressly authorized in the applicable Campaign Terms, Affiliate may not engage in any Services via telemarketing, SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol. Where Affiliate is authorized in the Campaign Terms to use SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol, Affiliate must fully comply with: (i) the TCPA; (ii) the most recent version of the Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices for Messaging, the most recent version of the Cellular Telecommunications Industry Association (“CTIA”) SMS Interoperability Guidelines and CTIA Short Code Monitoring Handbook, the rules, terms, conditions and policies of all participating mobile telephone carriers, as well as any and all other rules applicable to text message marketing (collectively, “Mobile Marketing Guidelines”); and (I ii) any laws, rules or regulations that impose any restrictions with respect to the time of day for text message marketing or number/frequency of text messages.
(b) Without limiting any of the marketing restrictions contained herein, unless expressly authorized in the applicable Campaign Terms or unless Affiliate obtains Company’s prior written approval in each instance, Affiliate may not: (i) include or promote any Creative by or through any blogs, news articles, third party newsgroups, message boards or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Creative. Where Affiliate receives Company’s prior written consent to engage in the marketing activities described in Section 4(b)(i) and (ii) above, Affiliate shall fully comply with: (A) the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials (“FTC Guidelines”); and (B) any terms, policies and rules applicable to any social media outlets utilized by Affiliate. Where Affiliate provides a product review in connection with any Campaign Products (“Review”), Affiliate shall prominently include a disclaimer adjacent to the Review that complies with the FTC Guidelines, containing: (I) a statement notifying the viewer that Affiliate will be compensated for sales of the subject Campaign Product; (II) the date when the Review was last updated, and a link to the official webpage associated with the subject Campaign Product in order for the viewer to obtain the most up to date information regarding the subject Campaign Product; and (III) a statement that the views expressed by Affiliate in connection with the Review do not represent the views or opinions of Company and any applicable Advertiser/brand associated with the subject Campaign Product.
(c) Affiliate shall not use ANY “incentivized marketing” or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, nor create the appearance of incentivized marketing or otherwise attempt to induce consumers to complete a prospective Action through use of any other incentives.
(d) Affiliate may not, nor knowingly permit any person to, inflate the number of Actions through any deceptive or misleading practice or method including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing an Action registration form. In connection with the Services provided hereunder, Affiliate may not: (i) place misleading statements in close proximity to the Creative; (ii) take control of an end-user’s computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; or (iii) install or execute on another's computer one (1) or more additional software program(s) without consent of the end-user, including spyware or other similar harmful software.
(e) Unless authorized in writing, in advance, in each instance Affiliate may not use third-party trademarks, or any other term excluded in any applicable Campaign Terms, in any manner to direct traffic to any Affiliate Websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of any third party. Affiliate must provide all text and proposed keywords/phrases that it would like to bid on (“Keyword Text”) to Company for approval or editing, prior to submitting same for use to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Affiliate must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network, and Affiliate shall fully indemnify and hold harmless Company from and against any and all liability arising in connection with such violation(s).
(f) Affiliate may not use inappropriate content on, or in connection with, the Creative and/or Affiliate Media including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, "spam," mail fraud, gambling, pyramid schemes, investment opportunities or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) content that may expose Company to negative publicity; (v) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (vi) content that violates the rights of others, such as intellectual property or privacy rights; (vii) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; or (viii) content that is otherwise offensive or inappropriate in Company’s sole discretion.
(g) Affiliate may not: (i) make any unauthorized claims concerning the Campaign Products, including with respect to their efficacy; (ii) represent, or imply, that Affiliate is Company, any of its affiliated entities, partners and/or Advertisers including, without limitation, BIODYNAMIX®,; (iii) depict Company, any of its affiliated entities, partners and/or Advertisers in a negative fashion; (iv) market the Campaign Products to any individual under eighteen (18) years of age; and/or (v) re-sell the Campaign Products, including via eBay, Amazon or any other venue.
5. E-Mail Marketing Requirements. The e-mail marketing requirements set forth in this Section 5 (the “Requirements”) state the minimum standards that Affiliate must adhere to in light of current laws, rules and regulations governing the transmission of e-mail and best practices in the industry. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the Effective Date of this Affiliate Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Affiliate, notwithstanding anything to the contrary contained in these Requirements. Affiliate shall be responsible for ensuring that each Affiliate E-mail sent hereunder is sent in accordance with all Applicable Law (as defined below) including, but not limited to, CAN-SPAM and CASL. Any and all costs and/or fees charged to Affiliate by its Internet Service Provider(s) related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from Affiliate E-mail recipients, regulatory agencies or otherwise shall be borne exclusively by Affiliate. Affiliate shall: (a) make adequate disclosures as required by law to those in the Affiliate Database regarding its e-mail and privacy and security policies; (b) respond to all complaints within three (3) business days after Affiliate becomes aware of the subject complaint(s); and (c) provide Company with a copy of every complaint, immediately, upon Affiliate’s receipt thereof. Affiliate is solely responsible for all Consumer complaints in connection with the Campaigns. Affiliate represents and warrants that it shall: (i) not falsify e-mail header, domain or transmission information (including, without limitation, source, destination and routing information); (ii) not, unless expressly authorized by Company in writing, in advance, in each instance, use brand names and/or trademarks of another party as a domain, or in the subject or from lines or body, of any Affiliate E-mail; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any Affiliate E-mail; (iv) include within all Affiliate E-mail, Affiliate’s correct point-of-origin e-mail address, transmission information and routing information; (v) include within all Affiliate E-mail, a toll-free telephone number or valid e-mail address at which recipient may contact Affiliate to file complaints and/or opt-out; (vi) include within all Affiliate E-mail a valid physical postal address; (vii) not send any Affiliate E-mail to any recipients featured on industry Blocklists. For purposes of the Agreement, “Blocklist” means any IP or URL-based listing of e-mail addresses to which marketers should never disseminate or attempt to disseminate commercial e-mail including, without limitation, Barracuda, Brightmail, CBL, NJABL, Spamcop, Spamhaus and XMission; (viii) include within all Affiliate E-mail, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s e-mail address from the Affiliate Database; and (ix) include within each Affiliate E-mail sent the unsubscribe link(s) provided by Company. Company shall provide Affiliate with a list of email addresses that have opted-out of receiving marketing messages from Company and/or the applicable Advertiser (“Suppression List”). Affiliate will: (A) check such Suppression Lists on a daily basis; (B) process all unsubscribe requests, no matter the source, within seven (7) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such e-mail address(es) and/or U.S. mail address(es), as applicable, from its Mailings; and (C) not distribute Affiliate E-Mail to any individual on the Company provided Suppression List. The Suppression List shall be deemed Company’s Confidential Information (as defined below) for purposes of the Agreement. If, at any time, Company is identified on an industry Blacklist (as defined below) as a result of actions attributable to Affiliate, then Affiliate shall have no more than twenty-four (24) hours from the receipt of Blacklist notification to remedy the situation, at Affiliate’s sole cost and expense. If, after the expiration of the allotted twenty-four (24) hours, Affiliate has been unable or unwilling to obtain satisfactory resolution (as reasonably determined by Company), then Company may terminate the Agreement immediately for Affiliate’s material breach and Affiliate shall reimburse Company for any and all costs incurred in connection with remedying same. For purposes of the Agreement, “Blacklist” means any and all industry lists of individuals or entities identified as disseminators of spam. Affiliate agrees that it is responsible for ensuring that the Affiliate E-mail do not generate spam complaints in excess of industry norms. Company shall determine in its sole discretion whether Affiliate’s number of spam complaints is within industry norms. Affiliate agrees that Company’s determination shall be final, binding and conclusive for all purposes under the Agreement. If Company determines that Affiliate’s number of spam complaints is in excess of industry norms, Company reserves the right to immediately terminate the Agreement upon written notice (with e-mail sufficing as written notice), and Affiliate shall forfeit all amounts that may otherwise be due Affiliate hereunder.
(a) Company Creative. Unless otherwise indicated in the Campaign Terms, Company shall provide Affiliate with all marketing materials, including copy, images, graphics, banner ads and to be used in connection with Affiliate’s Services hereunder (“Company Creative”). Unless Affiliate is expressly permitted to use Affiliate Creative (as defined below) as set forth in the Campaign Terms, no copy, images, graphics, banner ads, links or process other than the Company Creative may be used by Affiliate in connection with the Services provided hereunder without first obtaining the prior express written permission of Company in each instance. Affiliate will not edit, modify, deviate from or otherwise make any changes to any Company Creative in any manner, whatsoever. Without limiting the foregoing, Company shall have sole discretion with respect to the creation of the “subject” and “from” lines used in connection with any Affiliate E-mail sent hereunder. The Parties understand and agree that Company is the sole owner and/or licensee of any and all intellectual property rights associated with the Company Creative. Without limiting the foregoing, Affiliate shall not use the Company Creative to market any products and/or services other than the Campaign Products. During the Term (as defined below) of the Agreement only, Company grants to Affiliate a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the Company Creative, including the trademarks, service marks, trade names and logos that Company may adopt from time to time (“Company Marks”) solely and exclusively as necessary to perform its Services hereunder. Except as expressly set forth in this Section 6, nothing contained in the Agreement will grant to Affiliate any right, title or interest in or to the Company Marks.
(b) Affiliate Creative. Where Company permits Affiliate to use Affiliate Creative in the Campaign Terms and/or Company otherwise provides prior written approval to Affiliate in each instance, Affiliate may use its own images, graphics, links, copy or other creative material in connection with its Services hereunder (collectively, “Affiliate Creative” and together with the Company Creative, the “Creative”). All Affiliate Creative must be submitted to Company prior to distribution of same by Affiliate, and Affiliate may not distribute any Affiliate Creative until Company has approved same in writing. Affiliate will not edit, modify, deviate from or otherwise make any changes to any Affiliate Creative in any manner, whatsoever, after same has been approved for distribution and/or use by Company. Affiliate shall be fully responsible for all aspects of the Affiliate Creative.
(c) Cancellation. In the event that Company desires to cancel the use of any Creative (including any portion of such Creative), Affiliate shall cease the distribution and use of same to/in connection with the Affiliate Media no more than forty-eight (48) hours following Company’s written request.
7. Payment for Valid Actions. Company shall only be obligated to pay Affiliate for Valid Actions (as defined below) if and when Company is able to collect the corresponding amount from the applicable Advertiser(s). The amount that Company shall pay Affiliate for each Valid Action shall be set forth in the applicable Campaign Terms; provided, however,that Company reserves the right to change the payout amounts upon email notice to Affiliate at any time. Affiliate will typically be paid pursuant to the payment schedule set forth in the applicable Campaign Terms. For purposes of the Agreement, where the Action is a lead, that Action will be deemed a Valid Action where the subject lead: (a) submitted by Affiliate contains all of the Required Lead Data Fields, as validly submitted by an individual; and (b) is not a Duplicate Lead, Invalid Action or Fraudulent Action (as those terms are defined below). For purposes of the Agreement, a “Duplicate Lead” means a lead submitted by Affiliate to Company that reproduces all or substantially all of the uniquely identifying data of an individual already in Company’s and/or the applicable Advertiser’s database. For purposes of the Agreement, an “Invalid Action” means a sale or other Action that is generated in connection with a violation of any of the terms or conditions of this Agreement or any Campaign Terms including, without limitation, where Affiliate modified the Creative, used non-approved creative material and/or non-approved Affiliate Media, as determined by Company in its reasonable discretion. For purposes of the Agreement, a “Fraudulent Action” means an Action generated by Affiliate that is the product of incentivized marketing, fraud or manipulation of information on the part of Affiliate and/or any of its Sub-Affiliates. For purposes of the Agreement, a “Valid Action” means an Action that is not a Duplicate Lead, Invalid Action or Fraudulent Action. The number of Valid Actions for billing purposes shall be determined based on Company’s tracking and reporting, which determination shall be final and binding upon the Parties. Affiliate agrees that it shall not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Company to be used in connection with any Creative.
Company may take legal action and reserves the absolute right to withhold payment from accounts for Affiliates that violate any of the terms and conditions set forth in the Agreement, as determined by Company in its reasonable discretion. In addition, for any chargebacks, bad debt, consumer refunds and/or where Company refunds any Advertiser for Actions generated by Affiliate (collectively, “Chargebacks”), Affiliate shall refund any associated amounts paid by Company to Affiliate for such Actions, or Company may offset same from amounts otherwise then due and owing to Affiliate hereunder. If Company determines that Affiliate’s number of Chargebacks is excessive, Company reserves the right to immediately terminate the Agreement upon written notice (with e-mail sufficing as written notice). Any Affiliate dispute regarding payment (“Payment Dispute”) must be made within thirty (30) days from the date that the subject invoice is initially sent to Affiliate. If Affiliate does not provide a written dispute to Company regarding payment or the payment terms within such time period, Affiliate will have waived the right to bring an action regarding a Payment Dispute. Affiliate agrees to pay all sales, use, excise and other taxes which may be levied upon either party in connection with the Agreement, except for income taxes associated with Company’s income.
8. Rejection of Actions. Where Company suspects that an Action generated by Affiliate is not a Valid Action (collectively, “Bad Actions”), Company shall notify Affiliate thereof. If Affiliate receives notice of a Bad Action from Company, the Parties shall investigate such Action and seek to resolve the matter in good faith within ten (10) business days of Affiliate’s receipt of notice thereof. If the Parties acting together in good faith determine that such Action was a Valid Action, then no further action shall be taken. If the investigation reveals that the Action was not a Valid Action, Affiliate shall refund Company (within thirty (30) days of such determination) for the fees associated with the subject Bad Action where Company has already paid for it or, in the alternative, Company’s payment obligations shall be excused with respect to such Bad Action where Company has not yet made payment. Where the Parties cannot agree, Company’s determination shall control in all respects.
9. Ownership. Following delivery of the consumer data associated with the applicable Actions (collectively, “Consumer Data”), as between Affiliate and Company, Company shall have the sole and exclusive ownership of the posted Actions and associated Consumer Data and Affiliate shall not: (a) transfer, license, rent, sell or otherwise distribute any such Consumer Data to any third party; or (b) use such Consumer Data on its own behalf in any manner without obtaining the prior express written consent of Company in each instance.
10. Term. The Agreement shall commence on the Effective Date and continue for a period of twelve (12) months (“Initial Term”). Thereafter, the Agreement shall automatically renew on a month-to-month basis (the Initial Term, together with each such monthly renewal, the “Term”). Either Party may terminate the Agreement at any time during the Term, with or without cause, upon two (2) business days’ prior written notice to the other Party. Either Party may terminate the Agreement immediately upon written notice if the other Party materially breaches the Agreement.
11. Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the Electronic Acceptance of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) upon Electronic Acceptance, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each Party in accordance with its terms; and (d) its marketing activities will neither infringe upon any copyright, trademark, U.S. patent or any other third party right, nor knowingly violate any Applicable Law or regulation.
12. GDPR Compliance. Other than where indicated to the contrary in the Campaign Terms, Affiliate shall not deliver any Actions from residents of the European Union (“EU”). Where EU resident Actions are authorized in the Campaign Terms, and where the subject individual is a resident of the EU, Affiliate shall obtain the affirmative consent as defined under the GDPR (without the use of pre-checked boxes or other forms of implied consent) from the subject consumer as defined under the GDPR for Affiliate to share her/his Consumer Data with third-parties, specifically Company and its Advertisers, for the marketing purposes contemplated herein (“GDPR Consent”). Affiliate shall immediately provide Company with written notice if any consumer revokes her/his GDPR Consent and/or where such consumer requests that her/his personal information be deleted from Company’s databases and servers. Affiliate shall retain the records of each consumer’s GDPR Consent (“GDPR Consent Records”) for a period of at least five (5) years following collection of same, or the period required by Applicable Law, whichever is longer. Affiliate must, within two (2) business days of receipt of Company’s request, provide the: (a) GDPR Consent Records to Company; and (b) name, date, time, IP address and referral URL where the applicable consumer(s) submitted the Consumer Data. Without limiting the foregoing, Affiliate shall ensure that it shall fully comply with all applicable provisions of the GDPR including, without limitation: (i) Affiliate’s internal security policies and procedures, encryption technology, personnel oversight and networks associated with the Consumer Data that it collects, stores, maintains, utilizes and/or transfers; (ii) Affiliate’s record keeping practices in connection with Consumer Data obtained, stored, utilized and/or transferred to third parties by Affiliate; (iii) Affiliate’s procedures for preventing a Consumer Data breach and responding in the event that a Consumer Data breach occurs; (iv) Affiliate’s policies and procedures related to cross-border transfers of Consumer Data; and (v) Affiliate’s policies for honoring the right of consumers to access, modify and delete their respective Consumer Data records, including Affiliate’s policies regarding compelling third parties with which Affiliate has shared Consumer Data to honor same.
13. Audit. Affiliate agrees that, at all times during the term of the Agreement, it shall maintain accurate books and records relating to its generation of Actions hereunder. Affiliate agrees that Company, or any designee of Company that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of the Agreement, and for three (3) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Affiliate at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Company’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to Affiliate’s generation of Actions, as well as Affiliate’s compliance with Applicable Law and the terms of the Agreement in connection therewith. Notwithstanding the foregoing, if Company uncovers any material misconduct associated with Affiliate’s generation of Actions hereunder, then the audit shall be at the sole cost and expense of Affiliate.
14. Indemnification. Affiliate agrees to indemnify, defend and hold harmless Company, its subsidiaries, Advertisers, shareholders, agents, contractors, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of the Agreement by Affiliate; (b) claim related to the Services, generation of Actions and/or Affiliate’s marketing practices associated therewith; (c) claim related to the Affiliate Creative and/or Affiliate Media; and/or (d) act or omission of any Sub-Affiliate. Company agrees to indemnify, defend and hold harmless Affiliate, its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any breach of the Agreement by Company.
15. Confidentiality. During the Term of the Agreement, and until such time as the Confidential Information (as defined below) is no longer protectable under New York State law, neither Party will use or disclose any Confidential Information of the other Party except as specifically contemplated herein. “Confidential Information” means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, all technical or non-technical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, lists of actual or potential customers or suppliers and the terms of the Agreement. For the avoidance of doubt, the Suppression Lists, payment terms set forth herein and in the Campaign Terms (including the cost per Action) and the Consumer Data associated with posted Actions, shall be deemed the Confidential Information of Company for purposes of the Agreement. Confidential Information does not include information that: (i) has been independently developed by the receiving Party without access to the other Party’s Confidential Information; (ii) has become publicly known through no breach of this Section 15 by the receiving Party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing Party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing Party, the receiving Party shall return all of the disclosing Party’s Confidential Information to the disclosing Party.
16. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. COMPANY WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY CAMPAIGN TERMS AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND COMPANY’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, COMPANY’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO AFFILIATE BY COMPANY PURSUANT TO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY ADVERTISER(S) UNDER ANY CIRCUMSTANCES.
18. Waiver. No delay or failure by either Party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
19. Force Majeure. Neither Party will be liable, or be considered to be in breach of the Agreement, on account of such Party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies (which includes, but is not limited to, any disruption caused by COVID-19, commonly referred to as “coronavirus,” and any governmental and/or private sector response thereto), acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected Party will give the other Party prompt written notice thereof and will use commercially reasonable efforts to minimize the impact of any such event.
20. Governing Law/Venue/Attorneys’ Fees. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State Court of competent jurisdiction, located in New York County, and further agrees to comply with all requirements necessary to give such court jurisdiction. The prevailing party in any litigation arising hereunder shall be entitled to recover from the other party all of its costs and expenses (including reasonable attorneys’ fees and court costs) incurred in connection with such litigation.
21. Entire Agreement. This Affiliate Agreement, together with any applicable Campaign Terms, contains the entire agreement between the Parties. Other than with respect to pricing and other terms that may be changed unilaterally by Company as expressly set forth herein, no modification of the Agreement shall be effective unless in writing and either executed or Electronically Accepted by an executive officer of both Parties.
22. Severability. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any Applicable Law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the Parties, and the remaining provisions of the Agreement will remain in full force and effect.
23. Relationship of the Parties. The relationship of Company and Affiliate established by the Agreement is solely that of independent contractors, and neither Party is an employee, agent, partner or joint venturer of the other. Neither Party shall make any representation, warranty or covenant, or assume or create any obligation, on the other Party’s behalf. Each Party shall be solely responsible for the actions of its respective employees, agents and representatives.
24. Assignment. Neither Party shall, without the prior written consent of the other Party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may, in the event of a merger, acquisition, joint venture, or sale of substantially all of such Party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other Party. The provisions of the Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
25. Headings. All section headings and captions have been inserted for convenience only and shall not affect the interpretation of the Agreement.
26. Drafting. Each Party providing Electronic Acceptance to the terms of the Agreement agrees that it has fully participated in the drafting of the Agreement and that no Party shall be deemed to be the drafting Party of the Agreement.
27. Electronic Signatures. Affiliate acknowledges and agrees that Affiliate accepts this Affiliate Agreement and any and all Campaign Terms via electronic means rather than via traditional handwritten signature (“Electronic Acceptance”). Affiliate acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by Company as a means of accepting this Affiliate Agreement and any and all Campaign Terms, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submission constitutes Affiliate’s agreement and intent to be bound by this Affiliate Agreement and any and all Campaign Terms. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) and other similar state and federal statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH ANY ONLINE PLATFORMS, WEBSITES AND/OR SERVICES OPERATED BY COMPANY. Further, Affiliate hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Affiliate acknowledges and agrees that it has the ability to print information delivered to Affiliate electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Affiliate in unchanged form.