COUPONS.COM INCORPORATED CARD LINKED OFFER AFFILIATE AGREEMENT
THESE TERMS AND CONDITIONS, TOGETHER WITH THE ACCOMPANYING APPLICATION FORM, CONSTITUTE THE CARD LINKED OFFER AFFILIATE AGREEMENT (“AGREEMENT”) BY AND BETWEEN COUPONS.COM INCORPORATED (INCLUDING ITS SUBSIDIARIES, “CI”) AND YOU, OR THE COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY THAT YOU REPRESENT, AS IDENTIFIED IN THE APPLICATION FORM (“AFFILIATE”). THE AGREEMENT IS EFFECTIVE AS OF THE DATE CI ACCEPTS AFFILIATE’S APPLICATION FOR ITS CARD LINKED OFFER AFFILIATE PROGRAM (“EFFECTIVE DATE”).
BY SIGNING UP FOR OR PARTICIPATING IN THE PROGRAM, AFFILIATE ACCEPTS THIS AGREEMENT IN ITS ENTIRETY AND WITHOUT RESERVATION. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU ARE NOT AT LEAST 18 YEARS OLD, PLEASE DO NOT SIGN UP FOR OR PARTICIPATE IN THE PROGRAM.
1.1 “Advertiser” means the party whose products, services, or payment methods are the subject of an Offer.
1.2 “Affiliate Site” means the websites, applications, or other locations from which Affiliate makes Offers available to Users. The Affiliate Site may include a network of websites, applications, and other locations so long as Affiliate owns and operates all such locations or is in direct privity with the owner and operator of such locations.
1.3 “Commission” means the amount or rate Affiliate is eligible to earn for each bona fide Offer Completion by a User.
1.4 “Complete(d)” or “Completion” means, in connection with an Offer, that a User has fulfilled the Advertiser’s requirements for the Offer and has earned the Reward.
1.5 “Offer” means a digital offer, discount, coupon or other promotion of an Advertiser, including without limitation Offers that Users may add to their registered payment cards and earn Rewards through the Platform (“Card Linked Offers”).
1.7 “Platform” means CI’s online and offline digital offer platform, including without limitation the related websites and applications; APIs, software, technology, and documentation; all data and other information collected, obtained or generated through use of the Platform; and all content (including Offers) available on or through the Platform. The Platform includes digital offer services provided to consumers, as well as to businesses such as Advertisers and affiliates. Without limiting the generality of the foregoing, CI’s Affiliate Program and Card Linked Offer Services for consumers are part of the Platform.
1.8 “Reward” means the discount, statement credit, virtual currency, or other reward due to Users when they Complete an Offer.
1.9 “User” means a consumer who activates an Offer originating from the Affiliate Site. Users must be a legal resident of the 50 United States (including the District of Columbia) to use the Platform.
1.10 “User Fraud” means an Offer Completion or attempted Offer Completion that is fraudulent, invalid, unauthorized, illegal, lacking sufficient documentation, generated by a bot, automated program or similar device, or otherwise not bona fide as reasonably determined by CI, its third party service providers, or an Advertiser. By way of example, Completing an Offer with the intent to immediately cancel or return the product or service purchased from the Advertiser after obtaining the Reward would constitute fraudulent activity.
2. General. This Agreement governs Affiliate’s participation in CI’s Card Linked Offer Affiliate Program (the “Program”). Upon acceptance into the Program, Affiliate may select and display Offers on the Affiliate Site and earn Commissions in accordance with the terms and conditions below. Participation in the Program is subject to CI’s approval and Affiliate’s continued compliance with the Agreement. CI may reject any applicant and terminate any affiliate’s participation in the Program at any time in its sole discretion. CI reserves the right to add, remove and change any feature or functionality of the Program and Platform (including without limitation available Offers) at any time in its sole discretion, with or without notice to Affiliate.
3. Offers; Implementation.
3.1 CI will make Offers and Offer Materials available to Affiliate through the Platform. Affiliate may select and display Offers on the Affiliate Site only. Affiliate agrees to use commercially reasonable efforts to promote the Offers it selects to consumers.
3.2 Affiliate shall (a) implement each Offer in accordance with CI’s then current implementation guidelines, including without limitation linking the Offer to the Platform; (b) comply with all instructions CI may provide from time to time, including those relating to the proper delivery, display, tracking, and reporting of Offers; and (c) use the Offer Materials in the form provided by CI, without modification. Affiliate shall also comply with any additional requirements, rules and restrictions that Advertisers may have for Offers, including those relating to content or adjacency restrictions, Offer Completion requirements, and Rewards.
3.3 Unless otherwise prohibited by CI, in lieu of the Reward provided by or through CI, Affiliate may offer its own Reward for Offers displayed on the Affiliate Site. If Affiliate chooses to offer Rewards, Affiliate shall be solely responsible for informing Users of any terms and conditions applicable to such Rewards, incorporating such terms and conditions into its display of the Offer, and providing such Rewards to Users immediately upon receiving notification from CI that such Users have Completed Offers.
3.4 CI may terminate or suspend any Offer at any time for any reason, with or without notice. If an Offer Affiliate has selected is terminated or suspended, Affiliate shall promptly cease making such Offer available on the Affiliate Site and remove all references thereto upon receipt of notice from CI. If Affiliate fails to remove such Offer and references after notice, CI may redirect links from a terminated or suspended Offer to other offers as determined by CI in its sole discretion without compensation to Affiliate. CI makes no guarantee regarding the level of Offer Completions, the timing or availability of Offers, the quality of Offers, or the amount of Commissions payable to Affiliate under this Agreement.
4.1 Subject to the terms and conditions of the Agreement, CI hereby grants to Affiliate a limited, non-exclusive, non-sublicenseable, non-transferable, revocable license during the term of the Agreement solely to:
(a) access and use the Platform in connection with the Program to (i) manage and maintain Affiliate’s Program account; (ii) select and customize Offers to display on the Affiliate Site, within the parameters permitted by the Platform; and (iii) send and receive notifications, reports, and other information;
(b) use and make calls to CI’s application programming interfaces and related documentation (collectively, “API”) to enable the Affiliate Site to interact with the Platform in connection with the Program; and
(c) use the Offer Materials, including any trade names, trademarks, service marks and logos of CI or Advertiser contained therein (respectively, “CI Marks” and “Advertiser Marks”), to promote the Program and implement and display Offers on the Affiliate Site in connection with the Program.
4.2 Subject to the terms and conditions of the Agreement, Affiliate hereby grants to CI a non- exclusive, non-sublicenseable, non-transferable, revocable license to use Affiliate’s trade name, trademark, service mark and logos (“Affiliate Marks”) in connection with the Program and in presentations, marketing materials, financial reports, and general listings of its partners and network affiliates.
4.3 Except as expressly provided herein, neither party will use the other party’s Marks without such party’s prior written consent. Each party agrees to use the other party’s Marks in accordance with such party’s then current trademark usage guidelines. All goodwill associated with a party’s use of the other party’s Marks will inure solely to the benefit of the Mark owner and neither party will take any action to damage the goodwill associated with the other party or its Marks. For purposes of this section, Advertiser Marks shall be considered the Marks of CI.
5. Requirements and Restrictions.
5.1 Affiliate shall establish and use only one Program account and shall not transfer or share its Program account with, or disclose Program account information (including username and password) to, any third party. Affiliate shall be liable for all activity that occurs under Affiliate’s username and password;
5.2 CI shall be the exclusive provider of Card Linked Offers on the Affiliate Site. Affiliate agrees not to display Card Linked Offers from any other provider on the Affiliate Site. Notwithstanding any Offer Completions originating from the Affiliate Site, Affiliate shall not be entitled to Commissions for any month in which CI is not the exclusive provider of Card Linked Offers on the Affiliate Site and CI, in addition to any other remedies it has, may withhold any payment thereof.
5.3 If requested, Affiliate shall provide CI with a list of all websites, applications, and other locations comprising the Affiliate Site within a commercially reasonable time, and shall be liable for all activity that occurs on the Affiliate Site or any part thereof. CI may reject the Affiliate Site, and any part thereof, at any time in its sole discretion.
5.4 Affiliate shall ensure that the Affiliate Site at all times does not contain content that:
(a) violates,or encourages conduct that violates,laws,statutes,ordinances,and regulations;
(b) violates a third party’s copyrights, trade secrets, trademarks, privacy rights, publicity rights, or other intellectual property or proprietary rights;
(c) Affiliate does not have the right to disclose under any law, contractual obligation, or fiduciary relationship;
(d) is sexually explicit, pornographic, obscene, defamatory, libelous, threatening, harassing, hateful, discriminatory, racially or ethnically offensive, abusive, violent, humiliating to or bullying of other people, or otherwise inappropriate, as deemed by CI in its sole discretion;
(e) is fraudulent, false, misleading, or deceptive;
(f) may create a risk of harm, loss, emotional distress, or physical or mental injury to any person or animal;
(g) is harmful to or exploitive of children,or that includes images or videos of children without first obtaining the consent of their parent or guardian;
(h) sends, facilitates, or promotes illegal games, contests, spam, surveys, unsolicited advertising or promotional materials, pyramid schemes or chain letters;
(i) disseminates malware, spyware, adware, viruses, Trojan horses, trap doors, worms, time bombs, cancelbots, corrupted files or any other similar software, files, or programs that may (i) damage or adversely affect the operation of the software, hardware of systems of any user, or (ii) interfere with, intercept or expropriate any personal information;
(j) impersonates another person or entity;
(k) promotes or facilitates the sale or use of liquor,beer,wine or other alcoholic beverages; and
(l) promotes gambling, ammunition and/or firearms, tobacco products, illegal drugs or other illegal activity such as unlicensed pharmaceuticals, unlicensed healthcare providers or services, unlicensed pharmacies and studies or clinical trials that are not conducted pursuant to FDA approval or standards.
5.5 CI is responsible only for providing User support relating to the Platform or Offers, except for inquiries regarding Rewards offered by Affiliate. Affiliate will direct User inquiries regarding Offers to CI, not the Advertiser. Affiliate is responsible for providing User support relating to any Rewards it offers and the Affiliate Site. Each party agrees to provide the other party reasonable assistance necessary for the other party to respond to User support;
5.6 Affiliate shall not directly or indirectly, or knowingly permit other persons to:
(a) interfere with or disrupt the Platform through any automated, deceptive, fraudulent or other invalid means, including but not limited to (i) using any device or technology to block, alter, direct, redirect, substitute, insert, append itself to or otherwise intercept any Offer that originated from a source other than the Affiliate Site; (ii) redirecting Users to, or providing Users with, any offer than the Offer displayed on the Affiliate Site; and (iii) attempting to circumvent any controls or security systems included with the Platform, including any authentication technologies;
(b) distribute,modify,adapt,translate,reverse engineer,decompile or disassemble or attempt to derive the source code for any software used to operate the Platform; and
(c) remove any cookies or other tracking mechanism included in or associated with Offers and Offer Materials.
5.7 Affiliate shall not engage in, use the Program to engage in, or knowingly permit other persons to engage in, any unfair, fraudulent or deceptive business practices, including without limitation User Fraud;
5.8 Affiliate shall not sublicense, rent, lease, sell, resell, outsource, syndicate, or otherwise redistribute any Offers or Offer Materials. Affiliate will not earn any Commission from Offers displayed on any location other than the Affiliate Site;
5.9 Affiliate shall not reproduce, copy, duplicate, alter, tamper with, sell, resell, rent or trade the Platform (including any Offer or Offer Materials);
5.10 Affiliate shall not use, frame, reproduce, distribute, republish, download, transmit, remove, obscure, or alter any trademark, logo or other proprietary materials (including trademark and copyright notices) that may be affixed to or contained within the Platform (or any Offer or Offer Materials) without the express prior written consent of CI;
5.12 Affiliate shall not collect, store or use any personally identifiable information or behavioral information of Users arising from their interaction with Offers, except and solely to the extent necessary to provide Users with Rewards offered by Affiliate. If Affiliate needs to collect such information in order to provide Rewards to Users, Affiliate shall only use such information to provide Users with Rewards and destroy such information upon fulfillment of such Rewards;
6. Commissions; Reporting; Payment.
6.1 Subject to the terms and conditions of this Agreement, Affiliate is eligible to earn a Commission for each Offer Completion originating from the Affiliate Site. Commission amounts will vary and will be listed with each Offer in the Platform. CI may change the Commission and any Reward associated with an Offer for any reason at any time, with or without notice. Offers that have been activated by Users prior to such change shall be subject to the original Commission and Reward.
6.2 CI and its service providers will track Offers activated by Users from the Affiliate Site, determine whether such Offers have been Completed, and calculate any Commissions due to Affiliate. CI’s records shall be determinative for purposes of calculating all amounts paid or payable under the Agreement.
6.3 CI will make summary reporting of Commissions available to Affiliate through the Platform. Affiliate acknowledges and agrees that such reports are preliminary and subject to change and should not be interpreted or relied upon as the actual Commissions earned or as a guarantee of present or future performance. Final Commission information will only be provided in connection with payment thereof.
6.4 CI will use reasonable efforts to pay Commissions within forty-five (45) days from the end of the calendar month in which CI receives payment from Advertisers for the associated Offers, provided that the amount payable for that month is at least $100. If the $100 minimum is not met for a given month, the amount payable will be carried forward month-to-month until the minimum is met.
6.5 CI will send Commission payments to Affiliate’s designated account. CI may charge an additional fee for processing non-electronic payments and deduct such fee from payments to Affiliate. Affiliate is solely responsible for providing and maintaining accurate contact and payment information for its Program account. Any bank fees for returned or cancelled checks or other fees incurred by CI due to inaccurate account information may be deducted from payments to Affiliate. CI may invoice Affiliate for any amounts Affiliate owes to CI or offset any such amounts against any amounts CI owes to Affiliate, whether under this Agreement or any other agreement between the parties.
6.6 Notwithstanding anything to the contrary, (a) CI may withhold payment of Commissions to Affiliate until any claim, complaint or other allegation that a Completed Offer may involve User Fraud or other Improper Actions is resolved to CI’s full satisfaction; and (b) Affiliate is not entitled to a Commission if CI determines that a Completed Offer involves User Fraud or other improper actions or that a User returns or cancels the goods or services that were the subject of the Offer.
6.7 Affiliate shall pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Program and receipt of Commissions thereunder. Affiliate agrees to provide tax documentation and forms within a commercially reasonable time after requested by CI.
6.8 Affiliate shall notify CI in writing if it disputes any payment made under the Program within thirty (30) days of any such payment. Affiliate agrees that failure to provide such notification will waive any claim it may have relating to the disputed payment.
7. Confidentiality. Any information provided by one party to the other party and designated as confidential or proprietary shall be deemed “Confidential Information” of the disclosing party. Without limiting the foregoing, Confidential Information of CI includes all documentation, specifications, guidelines and other information relating to the Platform, including APIs; all data and statistics relating to Offers displayed on the Affiliate Site, including click-through rates, Offer Completion rates, Commission pricing and payments; reports relating to the Program; and all User Data collected, generated or obtained through the Platform, including without limitation payment card information, transaction data, and interaction with Offers data. Confidential Information shall not be disclosed by the receiving party to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as those set forth in this Agreement. Neither party will use any Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (a) was previously known to the receiving party without restriction as to use or disclosure; (b) was or becomes generally available to the public through no fault of the receiving party; (c) is rightfully in receiving party’s possession free of any obligation of confidence, at or after, the time it was communicated to receiving party by the disclosing party; (d) was developed by employees or agents of receiving party independent of and without reference to any Confidential Information of disclosing party; or I was communicated by disclosing party to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure. Upon written request by either party, each party shall, return or destroy all Confidential Information of the other party in its possession.
8. Registration; Data; Privacy.
8.2 Affiliate consents to the disclosure to CI’s Advertisers and third party service providers of data and information relating to its Program application, Completed Offers originating from the Affiliate Site, and Commissions and agrees that such third parties may use such data in connection with the Program. Affiliate hereby grants to CI a perpetual, nonexclusive, irrevocable, worldwide, paid-up and unlimited license to use such Affiliate data and information.
9. Proprietary Rights.
9.1 As between CI and Affiliate, CI owns and retains all right, title, and interest in and to the Platform (including the Program, all Offers, Offer Materials, and APIs), including but not limited to all software, intellectual property rights, information and data (including User Data) relating thereto.
9.2 As between CI and Affiliate, Affiliate owns and retains all right, title, and interest in and to the Affiliate Site (excluding Offers, Offer Materials, and any other content provided by CI and incorporated therein), including but not limited to all software, intellectual property rights, information and data relating thereto (excluding User Data).
9.3 Except as expressly granted in this Agreement, neither party grants to the other party any express or implied rights or licenses in and to their respective property and expressly reserves all rights therein.
10. Representations and Warranties. Affiliate covenants, represents and warrants during the term of the Agreement:
10.1 All information Affiliate provides to CI in connection with the Program, including application information, is and will be accurate and current;
10.2 Affiliate owns or is in privity with the owner of the websites, applications and locations comprising the Affiliate Site;
10.3 Affiliate has the necessary right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
10.4 Affiliate complies, and will continue to comply, with all laws, statutes, ordinances, regulations applicable to its performance hereunder;
11. Indemnification. Affiliate agrees to defend, indemnify and hold harmless CI, its affiliates and its directors, officers, employees and agents from and against any and all third party claims, liability, losses and expenses (including damages awards, settlement amounts, and reasonable attorneys’ fees) relating to or arising out of (a) Affiliate’s breach or alleged breach of this Agreement, (b) the Affiliate Site, or (c) Affiliate’s use of the Platform, including but not limited to the Rewards it offers in connection with an Offer. CI agrees to promptly notify the Affiliate of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to Affiliate at the Affiliate’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. Affiliate will have sole and exclusive control over the defense and settlement of any such third party claim. However, Affiliate will not acquiesce to any judgment or enter into any settlement that adversely affects CI’s rights or interests without the prior written consent of CI.
12. Third Party Content. Affiliate acknowledges and agrees that the Offers and Offer Materials contain content of third parties, including Advertisers. CI EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON SUCH THIRD PARTY CONTENT.
13. Warranty Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, CI MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY OR OTHERWISE AND CI EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED OF ANY KIND, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, TITLE, AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CI MAKES NO WARRANTY THAT: (A) THE PLATFORM OR ANY PART THEREOF (SUCH AS ANY OFFER OR ANY OFFER MATERIALS) WILL MEET AFFILIATE’S REQUIREMENTS; (B) THE PLATFORM WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS OR THAT DATA ASSOCIATED WITH THE PLATFORM WILL NOT BE LOST OR DAMAGED; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE, TIMELY, OR RELIABLE; (D) THAT THIRD PARTIES WILL HONOR OR FULFILL OFFERS OR REWARDS; OR (E) THE QUALITY OF THE PLATFORM OR ANY PART THEREOF (SUCH AS ANY OFFER) AND ANY REWARD, PRODUCT OR SERVICES OBTAINED THROUGH THE PLATFORM WILL MEET THE EXPECTATIONS OF AFFILIATE OR USERS. FURTHER, CI MAKES NO WARRANTY REGARDING THE ACCURACY, VALIDITY OR REDEMPTION OF OFFERS AVAILABLE THROUGH THE PROGRAM. AFFILIATE ACKNOWLEDGES AND AGREES THAT ITS USE OF, AND PARTICIPATION IN, THE PROGRAM IS SOLELY AT ITS OWN RISK.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM (INCLUDING OFFERS AND OFFER MATERIALS) IS ACCESSED AT AFFILIATE’S OWN DISCRETION AND RISK, AND AFFILIATE WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO ITS COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. CI DOES NOT WARRANT THAT THE PROGRAM, OR ANY PART THEREOF, WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSIONS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM CI OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. CI DOES NOT ENDORSE THE ADVERTISERS, REWARDS, PRODUCTS OR SERVICES IDENTIFIED IN OR ASSOCIATED WITH OFFERS AND DOES NOT WARRANT THAT USE THEREOF WILL BE EFFECTIVE OR SAFE.
14. Limitation of Liability. IN NO EVENT SHALL CI OR ITS ADVERTISERS, THIRD PARTY SERVICE PROVIDERS AND AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, DATA OR USE, INCURRED BY AFFILIATE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM AFFILIATE’S ACCESS TO, OR USE OF, OR INABILITY TO USE THE PLATFORM OR ANY PART THEREOF (INCLUDING BUT NOT LIMITED TO OFFERS AND OFFER MATERIALS) OR ANY REWARDS, PRODUCTS, OR SERVICES ASSOCIATED WITH THE PLATFORM, EVEN IF CI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER IT FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THE TOTAL LIABILITY OF CI AND ITS ADVERTISERS, THIRD PARTY SERVICE PROVIDERS AND AFFILIATES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY, ASSOCIATED WITH ANY CLAIM ARISING OUT OF OR RELATING TO USE OR ACCESS TO THE PROGRAM OR THIS AGREEMENT FOR ANY REASON WHATSOEVER SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO AFFILIATE FOR THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. Each party acknowledges that the other party has entered into this Agreement relying on the foregoing limitations of liability and those limitations are an essential basis of the bargain between the parties.
15. Limitations. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER OR EXCLUSION OF CERTAIN LIABILITIES. IF ANY OF THE PROVISIONS OF THIS AGREEMENT ARE HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID OR UNENFORCEABLE, SUCH PROVISIONS SHALL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THIS AGREEMENT, SO THAT THIS AGREEMENT USE SHALL REMAIN IN FULL FORCE AND EFFECT.
16. Time Limit on Claims. Regardless of any statute of law to the contrary, Affiliate must file any claim or action arising from or relating to its participation in the Program and/or this Agreement within one (1) year after such claim or action accrued. Affiliate agrees that failure to do so will waive the claim or action.
17. Changes to the Agreement. CI may revise this Agreement from time to time. If CI revises the Agreement, CI will notify Affiliate by posting a notice to Affiliate’s Program account or emailing Affiliate’s designated contact. Affiliate agrees that its continued participation in the Program after such notice constitutes its acceptance of the changed Agreement. If Affiliate does not agree to the revised Agreement, Affiliate shall cease and terminate its participation in the Program. Revised Agreements shall be effective as of the date posted to the Platform.
18. Term and Termination. This Agreement shall commence on the Effective Date and continue until terminated. Either party may terminate the Agreement at any time for any reason by giving written notice to the other party. If termination is due to Affiliate’s breach of this Agreement, then no amounts will be due to Affiliate by CI for the period of such breach. Affiliate will not earn Commissions after the termination date regardless of any activity that may continue to take place on the Affiliate Site. Upon termination of the Agreement, Affiliate shall within two (2) business days (a) remove all Offers from the Affiliate Site; and (b) cease use of and delete all materials provided to Affiliate for use in the Program. Sections 1, 7, 8.1, 8.2, 9, 11, 13-, 16, and 19 shall survive termination.
19. Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the Program and supersedes all previous communications, representation, understandings, and agreements, either oral or written, between the parties with respect to the Program The Agreement shall not be assigned or otherwise transferred by any party, in whole or in part, without the express prior written consent of the other party, and any such assignment or transfer shall be null and void; provided, however, that Company shall be permitted to assign or otherwise transfer the Agreement, in whole or in part, without such prior written consent upon the consummation of any merger or other business combination or transaction that results in any person, directly or indirectly, acquiring beneficial ownership of more than 50% of Company’s then outstanding shares of voting capital stock, or the sale of all or substantially all of the assets of Company. Subject to the foregoing, the Agreement shall be binding upon, and inure to the benefit of, each party hereto and the respective successors and assigns of each party. The Agreement is solely for the benefit of the Company and Client and their permitted successors and assigns and there shall be no third party beneficiaries to the Agreement. The parties are independent contractors and the Agreement does not create an agency, partnership, joint venture, employee/employer or other similar relationship between them. The laws of California, except for its conflicts of laws principles, shall govern this Agreement. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in the state and federal courts located in or serving Santa Clara County, California. Affiliate hereby consents to personal jurisdiction in such forum and waives any objection to such venue. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, acts of civil or military authority, fires, floods, earthquakes, environmental conditions, riots, wars, sabotage, strikes or labor disputes, failure of power, cyber attacks, theft, failure of telecommunications lines or compliance with any law, regulation, or order (whether valid or invalid) of any governmental body. Any notice required to be delivered hereunder shall be deemed delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Affiliate shall be sent to the contact as designated in the application form (or as updated in Affiliate’s Program account). All notices to CI shall be sent to: 400 Logue Avenue, Mountain View, CA 94043, Attn: Legal Dept. Facsimile signatures shall hold the same force and effect as an original signature for purposes of binding parties to the Agreement. The Agreement may not be amended or otherwise modified unless set forth in a written instrument signed by both CI and Affiliate.