This Affiliate Marketing Agreement (the “Agreement”) contains the complete terms and conditions between Currencies Direct, Inc., 4705 South Apopka Vineland Rd. Suite 114, Orlando FL 32819. a Delaware corporation (hereinafter, “the Company”) and you (the “Affiliate”) regarding your application to participate in the Company Affiliate Program (the “Program”) as an affiliate of Company. Any person or entity that applies to in the Program must accept this Agreement without change. By submitting an application to join the Program, or by participating in the Program, you are confirming that you have read this Agreement, and agree to be bound by the terms and conditions of this Agreement, and to adhere to any Affiliate Marketing Guidelines (“Guidelines”) issued or posted by Company, as may be updated from time-to-time.
The Company is is registered at federal level with the Financial Crimes Enforcement Network (“FinCEN”), as a Money Services Business. In addition Currencies Direct Inc. is licensed as a Money Transmitter by the relevant State Regulatory Agency in various USA States, for a full list of states where Currencies Direct Inc. is licensed visit: www.currenciesdirect.com.
This Agreement is written in the English language. We do not guarantee the accuracy of any translated versions of this Agreement. To the extent any translated versions of this Agreement conflicts with the English language version, the English language version of this Agreement shall control.
A. "Commission Fees" - The amount Affiliate is paid for each Qualified Purchase by a Referred Customer that is referred to Company by Affiliate, subject to the Commission Threshold and pursuant to the terms of this Agreement.
B. “Commission Threshold” - The amount of Commission Fees Affiliate must accrue prior to receiving a payment from Company.
C. "Qualified Purchase" - A qualified sign-up for Company Products and Services by a Referred Customer, as determined by Company in Company’s sole discretion, which is not excluded under Section 6.
D. "Referred Customer" - Each new and unique customer referred from Affiliate through the Affiliate’s unique link on Affiliate’s website, social media page, or blog, Affiliate portal, or communication sent to the Currencies Direct Inc. that provides valid account, as determined by Company.
A. All Affiliates must agree to adhere to this Agreement and complete the application materials. Company has the discretion to cancel the Affiliate’s enrollment at will and for any or no reason, with or without notice to Affiliate.
B. To enroll, Affiliate must submit a request to join Company’s Program at: https://partners.currenciesdirect.com/Affiliate/AffiliateRegistration?source=CD. An account manager from Company will contact Affiliate and provide Affiliate with application materials and a copy of this Agreement. Affiliate’s participation in Company’s Program constitutes acceptance of this Agreement.
C. Company will evaluate Affiliate’s application and Company may reject Affiliate’s application if Company determines (in its sole discretion) that Affiliate is not suitable for the Program for any reason.
A. The Program permits Affiliate to monetize its physical locations, storefronts, website, social media user-generated content, email, or blog (referred to here as Affiliate’s “Site"), by placing links to Company on Affiliate’s Site or providing materials at physical locations and storefronts directing to Company. If Affiliate is accepted to be an Affiliate, and Affiliate agrees to participate as an affiliate pursuant to the terms of this Agreement, Company will provide Affiliate with a variety of data, images, text, link formats, widgets, banners, marketing content, and other marketing graphics and tools (each referred to herein as a "Link" or collectively, as the "Links"). The Links will serve to identify Affiliate’s website as a member of the Program and will establish a link from Affiliate’s website or e-mail to Company’s website. The links must properly use the special “tagged" link formats Company provides and comply with this Agreement.
B. Affiliate agrees to cooperate fully with Company in order to establish and maintain the Links. Affiliate further agrees that its use of the Links must be in compliance with this Agreement at all times.
C. Company may modify the Links from time to time in its sole discretion. Affiliate will not use graphic or textual images (indicating a Link) or text messages to promote Company that are not approved in advance and in writing by Company.
D. Affiliate’s Site(s) shall display the Links prominently in relevant sections of their website. Any information with respect to Company that is displayed on Affiliate’s Site must be pre-approved by Company in writing.
E. When Company customers click through the Link to purchase a product or service offered by Company, Affiliate can receive program fees for Qualifying Purchases, subject to the terms and conditions of this Agreement.
A. Affiliates must comply with this Agreement at all times in order to participate in the Program and receive Commission Fees.
B. Affiliates must promptly provide Company with any information that Company requests to verify compliance with this Agreement.
C. Affiliates are required to comply with all applicable laws, regulations and guidelines concerning advertising and marketing, including but not limited to, the Guidelines, the Federal Trade Commission (FTC) Endorsement Guides located at 16 CFR 255, which requires that material connections between advertisers and endorsers be clearly and conspicuously disclosed. You must identify yourself as an affiliate in compliance with the Endorsement and Testimonial Guidelines published by the FTC. You shall include a disclosure statement on your Site or any blog/post, or social media post where the Referral Link is posted. For more information about FTC disclosure requirements, please review the FTC's Endorsements and Testimonials Guidelines.
If Affiliates engage in “native advertising” in connection with the promotion of Currencies Direct products or services, Affiliates agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements available at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenforcement.pdf and any related guidelines.
D. Affiliate must ensure that any written statement promoting the Company displayed on Affiliate’s Site is written from a third party perspective. By way of example only, Affiliate should not use terms such as “our services” in respect of the Company’s services. Affiliate must also display its own mark prominently to ensure that a customer browsing Affiliate’s Site is given enough information to convey the message that Affiliate’s Site is not operated by or on behalf of the Company, including and particularly any page where Affiliate’s Site capture details that you will be sent to the Company.
E. Affiliates shall not misrepresent or embellish Company’s association with Affiliate (including by expressing or implying that Company supports, sponsors, or endorses the Affiliate), or express or imply any affiliation between Company and the Affiliate or any other person or entity except as expressly permitted by this Agreement.
F. Affiliate agrees that it shall not engage in any pay-per-click advertising where such advertisements include any trademark used by the Company or any of its affiliates or subsidiaries, as well as any related brand terms, brand permutations and misspellings.
G. Affiliate agrees that it shall not use or register domain names that include any trademark used by the Company or any of its affiliates or subsidiaries, as well as any related brand terms, brand permutations and misspellings.
H. Affiliate agrees that it will take reasonable efforts to ensure that its advertisements do not appear above any advertisement of the Company that appears in response to the same search term, that Affiliate will not copy any element of any pay-per-click search-listing text used by the Company, and that Affiliate will not perform negative match checks on Company brand terms unless otherwise given permission.
I. Company customers are not, by virtue of Affiliate’s participation in the Program, Affiliate’s customers. As between Company and Affiliate, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on Company’s website will apply to those customers and may be changed at any time by Company in Company’s sole discretion. Affiliate will not handle or address any contacts with any of Company’s customers, and, if contacted by any of Company’s customers for a matter relating to interaction with Company, Affiliate must state that those customers must follow contact directions on the Company website to address customer service issues.
J. Company reserves the right to withhold Commission Fees and cancel the affiliate relationship with Affiliate should Company determine, at Company’s sole discretion, that Affiliate is not in compliance with the FTC regulations or any other laws or regulations. If Affiliate violates this Agreement, then, in addition to any other rights or remedies available to Company, Company reserves the right to permanently withhold any and all fees otherwise payable under this Agreement, whether directly related to such violation without further notice and without prejudice of any right of Company to recover damages in excess of this amount.
Company will process orders placed by Referred Customers who follow the Links from Affiliate’s Site to Company. Company reserves the right, in its sole discretion, to reject orders that do not comply with certain requirements that Company may establish from time to time. All aspects of order processing and fulfillment, including Company’s services, cancellation, processing, refunds and payment processing will be Company’s responsibility. Company will track the Qualified Purchases generated by Sites and will make this information available to Affiliate through Company’s website. To permit accurate tracking, reporting, and commission accrual, Affiliate must ensure that the Links between their Site and Company’s website are properly formatted.
A. Commission will be calculated on the currently applicable commission rates for each Qualified Purchase as determined by Company.
B. Qualified Purchases do not include the following:
i. A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund.
ii. A purchase that was completed prior to Affiliate being accepted by Company to the Program, or was not made property by using Affiliate’s Link.
iii. A purchase by a Referred Customer that has not been in good standing for a period of thirty (30) days or is in violation of Company’s Terms of Service, Acceptable Use Policy, or other policies of Company at the time the Commission Fees accrue.
iv. A purchase that Company suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
v. A purchase referred by Affiliate that has an excessive cancellation rate as determined in Company’s sole discretion.
vi. A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from Affiliate.
C. Company reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Program, or who have commissions that are potentially fraudulent as determined by Company in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
D. Company reserves the right to suspend the payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. Company reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees earned as a result of any fraudulent, questionable, or cancelled purchases.
E. Company reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees; Company is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact Company to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in Company’s sole discretion.
F. In the event that the Referred Customers that are referred to Company by Affiliate are determined to have an excessive cancellation rate, as determined by Company in its sole discretion, Company reserves the right to withhold or decline pending and future Commission Fees to Affiliate.
G. Any attempt by Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud Company or any violation of the terms of this Agreement constitutes immediate grounds for Company to terminate Affiliate’s participation in the Program and will result in the forfeiture of any Commission Fees due to Affiliate.
H. Commissions will accrue and only become payable to Affiliate once Affiliate has (i) provided all relevant tax and address documentation pursuant to Section 7 below and (ii) Affiliate reaches the Commission Threshold as designated by Company based on the then-prevailing commission rates. The Affiliate shall receive commission based on a percentage of net profits, as determined by the Company in its sole discretion, on Qualified Purchases, for so long as the Referred Customer continues to pay Company for the service subject to the Qualified Purchase, and for so long as the Referred Customer remains in good standing. Once a commission has accrued, the amount of such commission (the “Commission Fee”) shall be due and payable to Affiliate under the terms of Section 7 once the Commission Threshold is reached.
I. Company reserves the right to change the Commission Threshold by amending this Agreement and will notify Affiliate for any such amendment pursuant to the terms of this Agreement.
A. Subject to the terms of this Agreement and the accrual of commissions as set forth in Section 6 above, commissions will be calculated for each Qualified Purchase that accrues during the period for which such commission fee is being calculated.
B. Commission Fees do not accrue until after a rolling reserve period of at least thirty (30) days after the date on which the Qualified Purchase was completed.
C. Company will only compensate Affiliate for Qualified Purchases made in accordance with this Agreement.
D. Company commission fees are disbursed upon request of the Affiliate in a payment medium acceptable to Company, which may include bank wire payouts with a $500 USD withdrawal minimum, and additional fees may apply. In the event an Affiliate wants to request a regular, automatic scheduled payout, Affiliate must contact Company directly at [email protected] to request an automated payment schedule, for which additional fees may apply.
E. Commission Fees shall be paid based on the current information in Affiliate’s profile. Affiliates are required to notify Company promptly of any change in address by updating profile information in the Company website. Affiliate is responsible for informing Company of Affiliate’s desired payment form. Affiliate can update or change the desired payment method at any time by updating the profile located on the Company website. Any changes to desired payment method may take up to two payout cycles to take effect.
F. Company, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
G. Disputes: Affiliate agrees to notify Company of any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by Company and Affiliate waives and forfeits forever any rights to a potential claim after this time period.
H. It is solely Affiliate’s responsibility to provide Company with accurate tax and payment information that is necessary to issue a Commission Fee to Affiliate. If Company does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue, and no Commission Fees will be owed with respect to such Qualified Purchase.
I. Affiliate is required to submit a W8/W9 tax form before any Commission Fees shall accrue. Affiliate is responsible for the payment of all taxes related to the commissions they receive under this Agreement. In compliance with U.S. tax laws, Company will issue a Form 1099 to Affiliate if their earnings meet or exceed the Commission Threshold.
J. Any address change must be made in the Affiliate profile at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed and paid.
K. Company does not make any representation, warranty, or covenant regarding the amount of traffic or fees Affiliate can expect at any time in connection with the Program, and will not be liable for any actions Affiliate undertakes based on expectations.
A. Affiliate is solely responsible for the development, operation, and maintenance of their Site(s) and for all materials that appear on Affiliate’s Site(s). Such responsibilities include, but are not limited to, the technical operation of the Site(s) and all related equipment; creating and posting content the Site and linking those descriptions to Company’s website; the accuracy of materials posted on Affiliate’s Site (including, but not limited to, all materials related to Company’s Products and Services); ensuring that materials posted on Affiliate’s Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
B. Company has the right in its sole discretion to monitor signups through Affiliate’s Sites from time to time to determine if Affiliate is in compliance with the terms of this Agreement. If Affiliate is not in compliance, Company may terminate Affiliate’s participation in the Program effective immediately.
A. By executing this Agreement, Affiliate represents that they have reviewed this Agreement, understand this Agreement, and agree to be bound by its terms.
B. Affiliate’s acceptance of this Agreement and participation in the Program will not violate (i) any provision of law, rule, or regulation to which Affiliate is subject; (ii) any order, judgment, or decree applicable to Affiliate or binding upon Affiliate’s assets or properties; (iii) any provision of Affiliate’s by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties.
C. Affiliate is the sole and exclusive owner of Affiliate’s Trademarks and has the power to grant to Company the license to use such marks in the manner contemplated herein, and such grant will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties; or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity.
D. Affiliate is not required to obtain consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party in connection with Affiliate’s entrance into this Agreement
E. There is no pending or threatened claim, action, or proceeding against Affiliate, or any affiliate of Affiliate’s with respect to Affiliate’s Trademarks, and, to the best of Affiliate’s knowledge, there is no basis for any such claim, action, or proceeding.
F. Affiliate is at least eighteen (18) years of age, if Affiliate is a person.
G. Each Referred Customer is valid, genuine, and unique and meets the criteria of a Qualified Purchase for generating a Commission Fee as provided in this Agreement.
H. By executing this Agreement, Affiliate represents, warrants, and covenants that they will participate in the Program and create, maintain, and operate Affiliate’s Site in accordance with this Agreement;
I. Affiliate warrants that Affiliate will ensure the information provided in connection with the Program is always accurate and complete. Affiliate can update information by logging into their account online.
J. Affiliate will not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as "SPAM"), or text messages, without prior written consent from Company, to be granted or denied in Company’s sole discretion, in each instance. Additionally, Affiliate may only send emails containing a Company Link or a message regarding Company or Company’s Program to people who have previously consented to receiving such communications from Affiliate. Affiliate’s failure to abide by this Section 14, the CAN-SPAM Act of 2003, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by Affiliate and will result in the forfeiture by Affiliate of any and all rights Affiliate may have to any commissions and the termination of Affiliate’s participation in the Program.
A. The term of this Agreement will begin upon the Company’s execution of this Agreement. Pursuant to Section 2 above, an individual applying to be an affiliate must submit an application online.
B. Either Affiliate or Company may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be immediate. Notice by Affiliate must be provided via email to [email protected].
C. Upon termination, Affiliate agrees that it will immediately (and in no case later than seven calendar days after notice of termination by either party) remove all content provided to Affiliate by Company, or referencing the Company, from all Affiliate Sites.
D. Affiliate is only eligible to earn Commission Fees on Qualified Purchases occurring during the term of this Agreement. Commission Fees earned prior to the date of termination of this Agreement will be eligible for commissions only if the orders for the related Products and Services are not cancelled within (30) days and comply with all of the terms of this Agreement. Company may withhold a final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Company its sole discretion.
E. Any Affiliate who violates this Agreement, Company’s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Program.
F. Company reserves the right to remove Affiliate from the Program, and to terminate or suspend this Agreement, at any time for any reason, in Company’s sole discretion.
1. Subject to the limitations set forth in Section 3 above and otherwise in this Agreement, Company grants Affiliate a non-exclusive, royalty free, non-transferable, revocable license to (i) access Company’s website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the Company trademark and logo and similar identifying material provided by Company (collectively, the "Licensed Materials"), for the sole purpose of selling Company Products and Services on Affiliate’s Site and as approved in advance by Company. Affiliate may not alter, modify, or change the Licensed Materials in any way. Affiliate is only entitled to use the Licensed Materials while they are participating in the Program in good standing and in compliance with all of the terms of this Agreement.
2. Affiliate shall not use the Licensed Materials for any purposes other than selling Company Products and Services, without first submitting a sample to Company and obtaining the express prior written consent of Company in each instance. Affiliate shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays Company, or any Company employee or representative in a negative light.
3. Company reserves all of its rights in the Licensed Materials and Affiliate’s license to use such material is limited to the manner described herein. Company may revoke Affiliate’s license at any time, by giving written notice. If not previously revoked, this license shall immediately terminate upon the termination of Affiliate’s participation in the Program.
4. Affiliate acknowledges that all content on the Company’s website, social media site, and on other materials is proprietary to or licensed by the Company and may not be reproduced, modified, transmitted, displayed, published or distributed without the prior written consent of the Company.
Affiliate grants to Company a non-exclusive license to utilize Affiliate’s name, title, trademarks, and logos ("Affiliate Trademarks") in any advertisement or other materials used to promote Company and the Program, provided that Company’s use of Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of Affiliate’s participation in the Program.
EU data privacy regulations (the GDPR) mean that we are allowed to accept a referral from you only if the person you are referring (‘the referee’) has given their consent, either verbally or in writing, for you to pass their details to us. If you pass to us (or anyone else) details of people who have not given their consent, then you are breaking EU law and we are not permitted to contact the referee.
When you identify someone you would like to refer to us, you must ask them the following question, either verbally, in writing or by email:
‘Would it be okay for me to share your name and contact details with Currencies Direct so they can contact you about their money transfer service?’
We will ask the client to confirm this consent whenever we contact a client referred by you. Only if the referee confirms they gave consent will we be able to continue the conversation.
From time-to-time we may ask you to provide tangible evidence that referees have provided consent. Note that the standard for recording verbal consent is for you to keep a log of meetings where consent was captured, including the names of those present, the date, time and place.
Repeated referee rejections may indicate that referrals are unsafe and result in suspension or termination of the affiliate relationship.
Currencies Direct handles any personal data you provide to us in accordance with our Privacy Policy, available online. Please review the Policy and contact us if you have any questions about it.
THE PROGRAM, THE COMPANY WEBSITE, ANY PRODUCTS AND SERVICES OFFERED ON THE COMPANY WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, PRODUCT ADVERTISING CONTENT, COMPANY’S AND COMPANY’S AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF COMPANY OR COMPANY’S AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. COMPANY AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. COMPANY MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES, OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, AFFILIATE’S SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NEITHER COMPANY NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY AFFILIATE IN CONNECTION WITH AFFILIATE’S PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF AFFILIATE’S PARTICIPATION IN THE PROGRAM. NOTHING IN THIS PARAGRAPH WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NEITHER COMPANY NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, COMPANY’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. AFFILIATE HEREBY WAIVES ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF AFFILIATE’S SITE (INCLUDING AFFILIATE’S USE OF ANY SERVICE OFFERING) OR AFFILIATE’S VIOLATION OF THIS AGREEMENT, AND AFFILIATE AGREES TO DEFEND, INDEMNIFY, AND HOLD COMPANY, COMPANY’S AFFILIATES AND LICENSORS, AND COMPANY’S AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) AFFILIATE’S SITE OR ANY MATERIALS THAT APPEAR ON AFFILIATE’S SITE, INCLUDING THE COMBINATION OF AFFILIATE’S SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES; (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF AFFILIATE’S SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN AFFILIATE’S SITE; (C) AFFILIATE’S USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW; (D) AFFILIATE’S VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT; AND (E) AFFILIATE’S OR AFFILIATE’S EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida, without regard to the conflict of law provisions thereof. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, shall be referred to and finally determined by binding arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal shall consist of one arbitrator. The place of arbitration shall be Orange County, Florida. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If the claims are determined to not be arbitrable or the parties mutually waive arbitration, any dispute arising out of this Agreement shall be submitted exclusively to the competent Courts of the State of Florida, without restricting any rights of appeal.
Each party acknowledges and agrees that any controversy that may arise under or relate to this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any action arising out of or relating to this Agreement. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of any action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this agreement by, among other things, the mutual waivers and certifications in this section.
In any action to enforce any terms of this Agreement, for breach of any provision of this Agreement, or otherwise related to this Agreement, the prevailing party shall be entitled to an award of their reasonable attorneys’ fees and costs.
The parties waive any right to assert any claims against the other party as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class shall not submit a claim or otherwise participate in any recovery secured through the class or representative action.
A. Affiliate may not assign this Agreement, by operation of law or otherwise, without Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns
B. Company’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of Company’s right to subsequently enforce such a provision or any other provision of this Agreement.
C. Company may modify this Agreement at any time in its sole discretion; provided that the change shall solely apply to events occurring after the date on which Affiliate accepts and agrees to such modifications unless Affiliate otherwise agree herein. Such modifications shall take effect when posted on Company’s website. Modifications may include, but are not limited to, changes in the scope of available Commission Fees, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and Program rules. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this agreement, in which event Affiliate shall be entitled to its rights under the unmodified Agreement prior to the date of the applicable modification. Affiliate’s continued participation in the Program following Company’s posting of any modification on its website will constitute binding acceptance of the change.
Affiliate is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Company and Affiliate or Company’s respective affiliates. Affiliate will have no authority to make or accept any offers or representations on Company’s or Company’s affiliates’ behalf.