We have written this agreement with you in mind, as well as to protect Tutors Friend and our subscribers. It describes the affiliate relationship we are entering into and covers your responsibilities as an affiliate, as well as our responsibilities to you. If you have any questions, please don’t hesitate to contact us via email at email@example.com
Last Updated September 1st, 2020
PLEASE READ THIS ENTIRE AFFILIATE AGREEMENT CAREFULLY.
This affiliate agreement is a legal agreement between you (the “Affiliate”, “you” and “your”) and Vantium Technologies Ltd (“we”, “us”, and “our”) that applies to your participation in our affiliate program (the “Affiliate Program”) for our website located at https://www.tutorsfriend.com/ (the “Website”).
1. ASSENT & ACCEPTANCE
You agree that upon our request, you will provide us with written certification that you have complied with this agreement (generally or specifically with respect to any provision of this agreement). Any failure to provide the certification in accordance with our request will constitute a material breach of the agreement.
2. AGE RESTRICTION
You must be at least 18 (eighteen) years of age to join our Affiliate Program. By registering as an Affiliate, you represent and warrant that you are at least 18 years of age and may legally agree to this agreement. We assume no responsibility or liability for any misrepresentation of your age.
This agreement does not create an exclusive agreement between you and us. You and we have the right to work with third parties and recommend similar products or services of third parties. This agreement imposes no restrictions on us to work or associate with any individual or company.
4. RELATIONSHIP OF THE PARTIES
Nothing contained within this agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship.
5. PROGRAM REGISTRATION AND SUITABILITY
In order to participate in our Affiliate Program, you will first be asked to submit an affiliate registration form in order to register an Affiliate account. The affiliate registration form may be found in our affiliate area at the following URL: https://www.tutorsfriend.com/affiliate-area/ (the “Affiliate Area”). You will ensure that all information provided by you on your registration form or otherwise associated with your Affiliate account (including your contact information, bank account details and country of residence) is true, accurate and complete. You further agree to notify us of any changes to information included in your Affiliate account.
We may send notifications (if any), approvals (if any), emails (if any) and other communications relating to our Affiliate Program and agreement to the email address then-currently associated with your Affiliate account. These communications may include important or time-sensitive information regarding your Affiliate account or our Affiliate Program. You will be deemed to have received all notifications, approvals, and other communications sent to your email address, even if the email address associated with your account is no longer current.
Submitting an affiliate registration form does not guarantee inclusion in the Affiliate Program. The fact that we auto-approve affiliate registration does not imply that we may not review or evaluate your participation in our Affiliate Program at a later time. We may ask for additional information from you at any time regarding your Affiliate account or for you to undertake additional steps to ensure your suitability for our Affiliate Program. We reserve the right to terminate this agreement and revoke your Affiliate status at any time for any reason at our sole discretion. Participation in our Affiliate Program does not mean that we have specifically approved you as an Affiliate or that we have approved your website.
6. AFFILIATE WEBSITE SUITABILITY
Owning a website is not a requirement for joining our Affiliate Program. If you do own a website or intend to use a website in your Affiliate promotions, it must not be a website that is deemed unsuitable by us. A website owned, managed or associated with an Affiliate may be deemed unsuitable in our view, according to this non-exhaustive list, if it:
- Contains, promotes, or links to sexually explicit or obscene material, or
- Promotes, endorses or incites violent or potentially harmful acts, or
- Promotes or contains material or activity that is hateful, harassing, harmful, invasive, abusive, or discriminatory (including on the basis of race, color, sex, religion, nationality, disability, sexual orientation, or age), or
- Promotes or contains false, deceptive, libelous or defamatory materials, or
- Promotes or undertakes illegal activities or contains unlawful material, or
- Incorporates any material which infringes or assists others to infringe on any copyright, trademark or other intellectual property rights or to violate the law, or
- Contains or otherwise disseminate any computer viruses, spyware, malware, virus, worm, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed, or
- Resembles, clones, mimics or iframes our Website or intellectual property (including any variations or misspellings), or
- Represents itself as an agent, partner, division or associate of our company, other than as an Affiliate as expressly provided for in this agreement, or
- Promotes, links to or is associated with another website that we deem to be unsuitable.
We will determine unsuitability at our sole discretion. If we deem your website to be unsuitable, then you will not be eligible to participate in our Affiliate Program and this agreement shall be terminated. If we choose to terminate your participation in our Affiliate Program and revoke your Affiliate status, we will attempt to notify you in a reasonable manner and we are not obligated to provide you any explanation. If your Affiliate status is revoked, you must immediately cease all promotions relating to our Affiliate Program and you may not reapply.
7. AFFILIATE PROGRAM
Our Affiliate Program is free to join and we provide you with resources in the Affiliate Area to help succeed in the program. After registering for our Affiliate Program, you will be given full access to the Affiliate Area of our Website where you can log in and manage your Affiliate account. We provide you with a personalized, customizable tracking link or links (for example, https://www.tutorsfriend.com/ref/example123) to use in your promotions (collectively, the “Affiliate Link”). In the Affiliate Area, you will find a setting that allows you to appropriately customize your Affiliate slug, which are the unique letters or numbers after “/ref/” which forms part of your Affiliate Link. You will also be able to utilize our Affiliate Link URL generator to add your Affiliate slug to any of our existing Website links. We may modify, change or remove an Affiliate Link at any time and will notify you if we do so.
For the purpose of this agreement, a “User” means any person that you send, using any of the Affiliate tools we make available to you, to visit our Website (the “User”). Each time a User visits our Website, it will be tracked and recorded as an Affiliate visit (the “Affiliate Visit”) and if the User successfully purchases a subscription to our Tutors Friend software on our Website, it will be recorded as an Affiliate referral (the “Affiliate Referral”). You are eligible to receive an Affiliate commission from every valid Affiliate Referral you generate, subject to the terms and conditions of this agreement. A free trial sign up is not included as an Affiliate Referral as Affiliate commission is only awarded on a purchase of a subscription. We do not allow an Affiliate Referral to be generated on your own purchase.
You are solely responsible for the content, style and placement of each Affiliate Link you use (whether created by you or made available to you by us) and for ensuring that they include the appropriate formatting necessary for us to properly track Users, Affiliate Visits and/or Affiliate Referrals.
In addition to your Affiliate Link, we provide you with our brand assets (such as official logos and images) for you to download or copy the HTML code, for you to use in your Affiliate promotions. We recommend adding your Affiliate Link to our brand assets so they direct users to our Website when clicked.
In the Affiliate Area, you will also have the option to create your own landing page/s on our Website. These landing pages will be assigned to you (which allows us to track your Affiliate Visits and Affiliate Referrals) and once the pages are published, you can promote them using a link that does not explicitly contain your unique Affiliate slug.
Furthermore, in the Affiliate Area, you may submit your own website domain as a direct link, which allows us to assign an Affiliate Visit and/or Affiliate Referral to any User visiting our Website directly after visiting your website, without using your Affiliate slug. Submitting your website as a direct link is subject to approval by us and we may review, reject or remove your direct link at any time.
8. AFFILIATE WEBSITE RESPONSIBILITY
You will be solely responsible for your website, including its development, maintenance, operation, and all materials that appear on or within it. For example, you will be solely responsible for:
- The technical operation of your website and all related equipment, and
- Displaying Affiliate Links and any Affiliate related content on your website in compliance this agreement, and
- Promptly removing Affiliate Links and any Affiliate related content from your website that is no longer relevant, does not exist, is not available, or does not comply with these terms, even if we are yet to notify you of such, and
- Complying with any and all applicable laws, regulations, licenses, guidelines, policies, industry standards, or other requirements of any applicable entity or governmental authority, including those related to disclosures and electronic marketing, cookies, data protection and privacy (for example, the General Data Protection Regulation of the European Union and the Federal Trade Commission guidelines in the United States), and
- Creating and posting, and ensuring the accuracy, completeness, and appropriateness of claims, links and other materials posted on your website, and
- Using your website or its content in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other party, person or entity (including copyrights, trademarks, privacy, publicity, or other intellectual property or proprietary rights), and
- Using our brand assets in compliance with any brand asset related guidelines and policies provided to you from time to time.
We may monitor your website, as well as visits and referrals associated with your Affiliate account. If we determine you are not in compliance with any of the terms of this agreement, we have the right to immediately terminate your participation in the Affiliate Program at our sole and exclusive discretion.
9. AFFILIATE COOKIES
When a User clicks on your Affiliate Link and arrives at our Website, or visits your landing page/s on our Website, or visits our Website directly after visiting your direct link, a cookie is stored in their browser to track your Affiliate Visits and/or Affiliate Referrals for 60 days, after which it will expire. An Affiliate Visit and/or Affiliate Referral will not be tracked if:
- The User uses a different browser that does not contain your Affiliate cookie, or
- The User clears their browser’s cookies, thereby deleting your Affiliate cookie, or
- Your Affiliate cookie has expired.
You will not be awarded commission for an untracked referral and we shall not be liable for any commissions that may have been owed to you.
Once a User purchases a subscription and an Affiliate Referral is recorded, our system will assign the User to you indefinitely, using their system ID or email address instead of an Affiliate cookie. This means you may be able eligible to earn commission on every valid Tutors Friend subscription purchase that User makes in future, regardless of whether they use another browser, clear their browser’s cookies or the cookie expires.
10. REFERRAL VALIDITY
To be eligible to receive an Affiliate commission for an Affiliate Referral, each and every Affiliate Referral must be considered valid by us. An Affiliate Referral will be considered valid and accepted by us, in our reasonable determination, including if:
- It is accurately tracked and recorded on our system, and
- It derives from an approved Affiliate Link, direct link, brand asset, landing page or any Affiliate tool that we make available to you, and
- The User’s Tutors Friend subscription purchase on our Website is considered to be valid and accepted by us at our sole discretion, and
- The User’s Tutors Friend subscription purchase has not been refunded, and
- The User is not already assigned to another Affiliate, and
- An acceptable method of promotion according to our standards was utilized by the Affiliate, and
- The Affiliate’s website has not been deemed unsuitable by us, and
- The Affiliate who generated the referral has an active Affiliate account with us and is bound by this agreement.
Notwithstanding the foregoing, we may choose to deem an Affiliate Referral invalid in our reasonable discretion. Any Affiliate Referral that is deemed invalid by us will not qualify for commission or credit from us. We may engage with any User directly at our sole discretion, regardless of whether or not the Affiliate Referral is valid.
11. ACCEPTABLE PROMOTIONAL METHODS
To be eligible to receive an Affiliate commission for participating in our Affiliate Program, you must engage in acceptable methods of promotion according to our standards. We encourage the use of promotional methods that add value to our company and create legitimate, loyal customers. A non-exhaustive list of examples of acceptable methods of promotion shall include but not be limited to:
- Telling your clients, customers or friends about us and sharing your Affiliate Link with them, or
- Writing a review or a blog post about us and linking to our site with your Referral Link, or
- Creating a post about us on social media containing your Affiliate Link, or
- Commenting with helpful feedback and giving value on other websites that relate to our Website, while disclosing your referral link in your replies.
We reserve the right to review and request changes to your methods of promotion and Affiliate Link placement or use, in order to comply with our policies and guidelines provided to you from time to time.
12. PROHIBITED PROMOTIONAL METHODS
Certain methods of promotion are always prohibited by us and will be deemed unacceptable. We shall be the sole and absolute arbiter of what constitutes an acceptable method of promotion. A non-exhaustive list of examples of prohibited and unacceptable methods of promotion shall include but not be limited to:
- Sending Unsolicited Commercial Email (UCE) or SPAM, or
- Forwarding of any URLs directly to our Website, or
- Forcing cookies through iframes, or
- Cookie stuffing, or
- Click baiting, or
- Representing yourself as our company or partner, employee or any other associate of our company, except as an Affiliate as expressly provided for in this agreement, or
- Advertising in any way that competes with our own advertising, or is likely to cause consumer confusion, including but not limited to using our brand names or keywords, or
- Offering any consideration, reward, or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for participating in your Affiliate promotions, or
- Concealing, masking, cloaking, misrepresenting or otherwise obscuring your identity, domain name, email address, application, browser or other information in any way, or
- Using a link shortening service, button, hyperlink or other method that makes it unclear that you are using an Affiliate Link, without disclosing that it is indeed an Affiliate Link if such disclosure is required by law, or
- Using intrusive or deceptive banners, pop-ups, interstitials, or other harmful applications, or
- Any illegal, unethical or offensive activity, or
- Any promotional activity that misuses your Affiliate Link, or
- Any promotional activity that shares false or misleading information.
We reserve the right to conclude that you have utilized an unacceptable method of promotion according to our standards, at our sole discretion. We may come to such a conclusion even if it is based upon our opinion or mere suspicion and is without any duty on us to prove that our opinion or suspicion is well-founded, even if our opinion or suspicion is proven not to be well-founded or if other companies have deemed it to be an acceptable method of promotion.
If we conclude that you are engaging in or adopting an unacceptable method of promotion, we will consider that cause for immediate termination of this agreement and your participation in our Affiliate Program. Any Affiliate Referral that is generated using an unacceptable method of promotion will be deemed invalid and will not qualify for commission or credit from us. Any pending balances that may be owed to you will not be paid to you if your Affiliate account is terminated due to the use of an unacceptable method of promotion.
If you are found to be utilizing an unacceptable method of promotion you may be required to pay back any such commission that we have paid to you. If we elect not to enforce this right it shall not be deemed to be a waiver of any other rights that we may have under this agreement.
13. AFFILIATE COMMISSION
For each valid Affiliate Referral you generate, you will be eligible to receive a recurring commission of 20% of the total value of each Tutors Friend subscription purchase made by the User, provided that you remain eligible to receive Affiliate commission according to the terms of this agreement. For example, if a User purchases the Individual Tutor subscription for $12.99, you will earn a commission of $2.598 rounded to $2.60 and then the following month the User upgrades to the Multiple Tutor subscription with 2 tutors for $14.99, you will earn a commission of $2.998 rounded to $3 the following month.
If the User redeems a coupon or receives a discount on their subscription, your commission will be calculated from the total value of the transaction including the coupon or discount. If the User’s transaction includes shipping fees or tax, your commission will be calculated from the total value of the transaction excluding the shipping fees or tax. If the User cancels or stops paying for their subscription, you will no longer receive commission from them. Affiliate commission is not awarded for other any other purchase the User makes on our Website, other than a Tutors Friend subscription.
Your commissions are subject to approval at sole and exclusive discretion before they are accepted and subsequently paid. We reserve the right to reject Affiliate commission for any reason.
We explicitly reserve the right to change the commission rate at our sole and exclusive discretion and will notify you if we do so.
14. AFFILIATE PAYOUTS
Payouts will only be available to you once you have registered for AffiliateWP‘s payouts service, which makes payment directly into your bank account via Stripe. There are no additional fees for registering for this service. It is entirely your responsibility to maintain and update your AffiliateWP payouts service account and ensure that all of your payout information is correct.
If you do not register for AffiliateWP‘s payouts service, you will not be able to receive your commission. If you have not registered for AffiliateWP‘s payout service after 180 (one hundred and eighty) days after registering for our Affiliate Program, then your right to receive commission arising from any and all of your Affiliate Referrals will be forever forfeited. We will have no obligation to pay your commission associated with any forfeited transaction. If you register for AffiliateWP‘s payouts service after your Affilaite Referrals have been forfeited, you will be eligible to earn commission on future Affiliate Referrals.
The AffiliateWP payout service is available in the following 31 (thirty-one) countries: Australia, Austria, Belgium, Canada, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malaysia, Netherlands, New Zealand, Norway, Poland, Portugal, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, United States. If the AffiliateWP payout service is not available in your country, then you are unable to join our Affiliate Program.
Approved commissions on valid Affiliate Referrals are processed in the first week of the month for the previous month’s earnings and you will receive the funds in your bank account within 3-15 (three to fifteen) days of us processing the payment. You will be notified each time your earnings are deposited into your bank account. There is no minimum payout amount. We will determine the currency in which we pay you, as well as the applicable conversion rate. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us. You are responsible for payment of all taxes applicable to you.
We explicitly reserve the right to change payout methods and information in our sole and exclusive discretion and will notify you if we do so.
For any disputes regarding your commission or payout, we must be notified within 30 (thirty) days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after 30 (thirty) days of payout will not be addressed.
You may log into our Affiliate Area to view reports related to your Affiliate account, such as Affiliate Visit and Affiliate Referral information, as well as payout reports and statistics. Please be advised that not all information and data has been fully reviewed or validated bu us and therefore may be subject to change.
16. INTELLECTUAL PROPERTY
You agree that the intellectual property owned by us includes all copyrights, trademarks, trade secrets, patents, inventions, names, symbols and other works. We hereby grant you a non-exclusive, non-transferable, revocable license to access our websites in conjunction with the Affiliate Program, and use our intellectual property solely and exclusively in conjunction with identifying our company in your Affiliate promotions, subject to these limitations:
- You must be an Affiliate in good standing with us, and
- You may not modify our intellectual property in any way, and
- You may not use our intellectual property in any way, other than as expressly provided for in this agreement, without our prior written permission.
- You may not to copy, rent, lease, sell, distribute, or create derivative works based on our intellectual property in whole or in part, by any means, without our prior written permission, and
We may revoke this license at any time. Please be advised that your unauthorized use of our intellectual property shall constitute unlawful infringement and we reserve all of our rights.
17. ACCEPTABLE USE
You agree not to use the Affiliate Program or our company for any unlawful purpose or any purpose prohibited by us. You agree not to use the Affiliate Program in any way that could damage our websites, products, services, or general company business. You further agree not to:
- Harass, abuse, or threaten others or otherwise violate any person’s legal rights, or
- Upload or otherwise disseminate any computer viruses, spyware, malware, virus, worm, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed,
- Conduct illegal spam activities, including gathering email addresses and personal information from others or sending any Unsolicited Commercial Email (UCE) or SPAM, or
- Perpetrate or conduct any fraud, or
- Engage in or create any unlawful gambling, sweepstakes, or pyramid scheme, or
- Publish or distribute any obscene or defamatory material, or
- Publish or distribute any material that incites violence, hate, or discrimination towards any group, or
- Unlawfully gather, intercept, collect, store, cache, record, redirect, read, interpret or otherwise use any information about others, or submitted by others on our Website (including personal data and account information), or
- Make or engage in transactions of any kind on behalf of any other person or entity, or authorize, assist, or encourage any other person or entity to do so, or
- Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of our websites or services,
- Generate clicks, visits, impressions or referrals by way of a robot or software program or otherwise, or
- Violate the security of any of our websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
18. MODIFICATION & VARIATION
We have the right, from time to time and at any time, modify and revise this agreement. We might choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. You further agree that all modifications to this agreement are in full force and effect immediately upon posting to our Website and that modifications or variations will replace any prior version of this agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this agreement. If we update or replace the terms of this agreement, we will let you know via electronic means, which may include an in-app notification or email. If you do not agree to the update or replacement, you may choose to terminate this agreement.
You agree to routinely monitor this agreement and refer to the last updated date posted at the top of this agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this agreement.
19. TERM, TERMINATION & SUSPENSION
The term of this agreement will begin when you register for our Affiliate Program and will apply for as long as you participate in the Affiliate Program.
This agreement can be terminated by either party at any time with or without cause. Both you and we may terminate this agreement without cause on 14 (fourteen) days written notice to the other party. We may terminate this agreement with cause:
- Upon 30 (thirty) days notice to you of a material breach, if such breach remains uncured at the expiration of such period, or
- Upon 30 (thirty) days notice to you of dormancy, if you have not generated an Affiliate Visit after 365 (three hundred and sixty five) days, or
- Upon 14 (fourteen) days notice to you of non-payment of any amount due to us, if such amount remains unpaid at the expiration of such period, or
- Immediately, without notice, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects or our users, including but not limited to the use of unsuitable websites or prohibited promotional methods, or
- Immediately, without notice, if you violate any of the terms of this agreement or other legal document on our Website, including but not limited to, violating our intellectual property rights or the rights of a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
If we update or replace the terms of this agreement and you no longer accept them, you may terminate this agreement on 5 (five) days written notice to us, provided that you send us written notice within 14 (fourteen) days after we send you notice of the change, after which we will assume that you accept the updated or replaced agreement.
If you wish to terminate your Affiliate account, you may do so by contacting us at firstname.lastname@example.org
You may only earn commission for as long as you are an Affiliate in good standing during the term. If you terminate this agreement with us, you will qualify to receive payouts earned prior to the date of termination, provided you are still registered with the AffiliateWP payouts service and still have an active Affiliate account with us so that we are able to process your payment prior to termination.
If you fail to comply with the terms of this agreement, or any other legal terms we have posted anywhere on our Website, or any other applicable legal terms of a third party, you forfeit all rights, including the right to any unpaid commission, and shall promptly discontinue all participation in our Affiliate Program, including the use of our intellectual property.
20. DATA LOSS
We do not accept responsibility for the security of your account or content. You agree that your access to and use of our Website, products, services, content and participation in our Affiliate Program is at your own risk.
21. SERVICE INTERRUPTIONS
We may need to interrupt your access to our Website and/or our Affiliate Program to perform maintenance, emergency services or other operations on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that we shall have no liability for any damage or loss caused as a result of such downtime.
22. NO WARRANTIES
YOU AGREE THAT YOUR USE OF THE AFFILIATE PROGRAM IS AT YOUR SOLE AND EXCLUSIVE RISK AND THAT ANY SERVICES PROVIDED BY US ARE ON AN AS IS, AS AVAILABLE BASIS. WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED WARRANTY OF MERCHANTABILITY. WE MAKES NO WARRANTIES THAT THE AFFILIATE PROGRAM WILL MEET YOUR NEEDS OR THAT IT WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. WE ALSO MAKES NO WARRANTIES AS TO THE RELIABILITY OR ACCURACY OF ANY INFORMATION. YOU AGREE THAT ANY DAMAGE THAT MAY OCCUR TO YOU, YOUR COMPUTER SYSTEM, OR AS A RESULT OF LOSS OF YOUR DATA FROM YOUR USE OF THE AFFILIATE PROGRAM IS YOUR SOLE RESPONSIBILITY AND THAT WE ARE NOT LIABLE FOR ANY SUCH DAMAGE OR LOSS.
23. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO YOUR PARTICIPATION IN OUR AFFILIATE PROGRAM (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (C) FOR ANY DAMAGES THAT MAY OCCUR TO YOU, TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, PARENTS, SUBSIDIARIES, ANY RELATED COMPANIES, LICENSORS AND PARTNERS, AND EACH OF OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, DIRECTORS, SUPPLIERS AND REPRESENTATIVES FROM ALL LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT ARISE FROM OR RELATE TO YOUR (OR ANY THIRD PARTY USING YOUR ACCOUNT OR IDENTITY) USE OR MISUSE OF, OR ACCESS TO, OUR AFFILIATE PROGRAM, YOUR BREACH OF THIS AGREEMENT, OR YOUR CONDUCT OR ACTIONS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL ASSIST AND COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENCES.
25. ENTIRE AGREEMENT
This agreement constitutes the entire understanding between the parties with respect to the Affiliate Program. This agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, between us.
26. GENERAL PROVISIONS:
- LANGUAGE: All communications, notices or documentation regarding this agreement shall be in the English language.
- HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this agreement are for convenience and organization only. Headings shall not affect the meaning of any provisions of this agreement.
- FEEDBACK: We encourage all users, Affiliates and associates to provide feedback and suggestions on our products and services. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use, or incorporate them into products and services, or modify our products and services as a result, without payment to you.
- ASSIGNMENT: This agreement may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this agreement, or the rights granted hereunder, be assigned, sold, leased or otherwise transferred by us, our the rights and liabilities will bind and inure to any assignees, administrators, successors, and executors.
- NO WAIVER: In the event that we fail to enforce any provision of this agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or subpart of this agreement will not constitute a waiver of any other part or subpart.
- SEVERABILITY: If any part of this agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this agreement will continue in effect.
- FORCE MAJEURE: Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; acts of nature; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; act of civil or military authority; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- ACTIONS PERMITTED: Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than 1 (one) year after the cause of action has accrued.
- JURISDICTION: Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of New Zealand, without regard to principles of conflict of laws.
- SURVIVAL: Upon termination of this agreement, any provisions that would be expected to survive termination by their nature shall survive termination and remain in full force and effect, including, without limitation, warranty disclaimers, indemnity and limitations of liability.