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Affiligate Partner Program Agreement

This Affiligate Partner Program Agreement, and the Exhibits attached hereto, (collectively “Agreement”) is a contract between Affiligate and you, the entity or individual named on the submitted partner registration form, (referred to as “you,” “your” or “Partner”) as a member in the Affiligate Partner Program (the “Program”). You must read, agree with, and accept all of the terms and conditions contained in this Agreement. This Agreement is effective from May 1, 2017 or the date you accept the agreement, whichever is later (“Effective Date”). We may amend this Agreement at any time by emailing such notice to you. The revised version will be effective 30 days from the date we email such notice to you. By continuing to use the Services after any revision to this Agreement or any change in Services, you agree to abide by and be bound by any such revisions or changes. We last modified this Agreement on April 27, 2017. All capitalized terms shall have the meaning assigned to them in Section 9.

ARTICLE I: THE PROGRAM
Section 1.1. Program.

Affiligate has developed a program for its partners to integrate the Affiligate Services into the Partner Product, market the Affiligate Services, and refer merchants to Affiligate (“Program”). You agree to participate in the Program after (i) execution of this Agreement; (ii) registration for any required card association programs through Affiligate’s acquiring bank, and (iii) proof of PCI compliance, if applicable.

ARTICLE II: PARTNER OBLIGATIONS
Section 2.1. Partner Marketing.

In marketing the Affiligate Service, you will: (i) portray the Affiligate Service accurately, and (ii) strictly adhere to any Affiligate branding or marketing requirements or guidelines as may be communicated to you from time to time. Further, you represent and warrant that all your marketing activities relating in any way to the Affiligate Service shall comply with applicable laws, regulations, industry self-regulatory standards (including applicable behavioral advertising standards), and best practices.

Section 2.2. Customer Support.

You will be responsible for all customer service for your products, services and any of your customers’ work product. You will refer inquiries to Affiligate customer service for questions relating to the Affiligate Services.

ARTICLE III: AFFILIGATE OBLIGATIONS
Section 3.1. Provision of the Affiligate Service.

Affiligate shall provide the Affiligate Services to Referred Merchants in accordance with the User Agreement and Affiligate Privacy Policy applicable to such Referred Merchant. All costs of integration of Referred Merchants shall be your and/or the Referred Merchant’s responsibility.

Section 3.2. Affiligate Benefits.

During the Term, you will receive Program benefits as set out at www.afiligate.com/affiligate-partner-program

Section 3.3. Partner Support.

Affiligate shall respond to your inquiries in the same manner that it responds to all similarly situated partners. For Affiligate Services, Affiligate will be responsible for customer service. Affiligate will refer inquiries to your customer service for questions relating to your website(s) and Partner Product.

Section 3.4. Partner Portal Access.

Affiligate may provide you with access to the Partner Portal in connection with the Benefits, as defined below. You agree to use the Partner Portal in the manner specified by Affiligate and subject to the restrictions on the use and disclosure of Confidential Information contained herein. You are responsible for all changes you make to your accounts via the Partner Portal.

ARTICLE IV: PROGRAM BENEFITS
Section 4.1. Benefits.

Affiligate shall provide the program benefits (“Benefits”) as set forth in the Affiligate Partner Program Guide located at www.afiligate.com/affiligate-partner-program (“Program Guide”). Affiligate will make the Benefits available to Partners meeting various eligibility conditions or requirements as Affiligate sets forth in its sole discretion from time to time. Affiligate may change the Benefits at any time.

Section 4.2. Additional Requirements.

Affiligate may, in its sole discretion, provide you with additional requirements related to your collection, usage, storage of Affiligate User Data. Affiligate will provide as much notice as possible for any additional requirements.

Section 4.3. Your User Information.

This Agreement does not limit your ability to collect, use, and store information from Your Users as long as the information is not Affiligate User Information, and you did not gain the information from your usage of the Affiligate Services.

ARTICLE V: INTELLECTUAL PROPERTY AND LICENSE RIGHTS
Section 5.1. Intellectual Property.

Affiligate shall retain sole and exclusive right, title, and interest to Affiligate’s Intellectual Property, the Affiligate Site, and the Affiligate Services, the technology related to the Affiligate Services, including without limitation all intellectual property rights in and to all aspects of the Affiligate Services, the Affiligate APIs, the Affiligate Benefits Guide, the Affiligate Content, and the Affiligate Materials. You shall retain sole and exclusive right, title, and interest to your intellectual property and the Partner Product. There are no implied licenses under this Agreement, and any rights not expressly granted are reserved by Affiligate. Except for the licenses herein, this Agreement does not transfer any Intellectual Property rights between the parties.

Section 5.2. License to You.

Subject to the terms of this Agreement, Affiligate grants you a revocable, non-exclusive, non-transferable license to access and integrate the Affiligate APIs into the Partner Product, solely to enable the Affiligate Services for your customers through the Partner Product, all in accordance with any integration requirements and the terms of this Agreement. This license does not authorize you to use the Affiligate API’s, to access, use, copy, or distribute any Affiligate Content.

Section 5.3. Affiligate Marks.

Subject to the terms of this Agreement, Affiligate grants you a revocable, non-exclusive, non-transferable license to use the Affiligate Marks solely in connection with advertising and marketing the Affiligate Services or the Partner Product and in accordance with Affiligate’s branding requirements. Any usage of the Affiligate Marks that is outside the scope of the Branding Requirements requires Affiligate’s prior approval.

Section 5.4. Your Marks.

You grant Affiligate a revocable, non-exclusive, non-transferable license to use your Marks to publicize your usage of the Affiligate Services. Affiligate may do so (i) through press releases, public announcements, and other oral communications at conferences, media events, or other marketing opportunities; (ii) on the Affiligate website or through other electronic communications such as emails to Affiligate Users, newsletters, or in materials that Affiligate otherwise makes publicly available; and (iii) through any other channel to promote the use of Affiligate.

Section 5.5. User ID.

Affiligate shall provide you a unique confidential identification code, certificate, and User ID that shall permit you to use the Affiligate Services. The User ID is Affiligate’s property and may be immediately revoked or terminated by Affiligate if you disclose it to a third party or for any other reason deemed necessary by Affiligate. You may not sell, transfer, sublicense, or disclose your User ID to any third party (other than a Service Provider performing services on your behalf).

Section 5.6. Service Providers.

You may use third party Service Providers to exercise your rights or perform your obligations under this Agreement so long as the Service Provider is subject to the terms and conditions of this Agreement. You agree that any act or omission by your Service Providers amounting to a breach of this Agreement will be deemed a breach by you for which you and the Service Provider will be jointly and severally liable.

ARTICLE VI: CONFIDENTIALITY
Section 6.1. Confidential Information Defined.

Confidential Information means all information that either Party provides to the other under this Agreement, including but not limited to the following: (i) the Affiligate User Information, User Data, and all other information received through the APIs or otherwise related to the Partner Product , (ii) API Credentials, and all access IDs and passwords, (iii) all information disclosed in writing and marked “confidential”, proprietary”, or with a substantially similar marking, (iv) all information disclosed orally and identified as confidential at the time of the disclosure, and (v) any other information that by its very nature you understand to be the disclosing Party’s confidential information.

Section 6.2. Confidentiality Obligations.

Each Party must maintain the Confidential Information in confidence and shall not disclose it to third parties or use it for any purpose other than as necessary and required to perform the services. In the event that Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, you shall immediately notify the disclosing Party and use reasonable efforts to obtain confidential treatment or a protection order of any disclosed Confidential Information. The obligations hereunder shall survive the termination of this Agreement for a period of three (3) years.

Section 6.3. Protection of Confidential Information.

The Parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and that the disclosing Party will be entitled (without waiving any other rights or remedies) to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond.

Section 6.4. User Data.

In the event a party discloses User Data to the other party that such receiving party has not otherwise collected in the course of providing its services (“Confidential User Data”), such receiving party understands that it shall have the right to use the Confidential User Data, and any derivative works thereof, only as strictly required and necessary to perform its obligations under this Agreement and is strictly prohibited from combining the Confidential User Data with its own User Data or directly or indirectly using the Confidential User Data in connection with any marketing activities. Further, the receiving party shall keep the Confidential User Data only as long as necessary to perform its obligations under this Agreement.

Section 6.5. PCI Compliance.

You represent, warrant and covenant that you shall at all times comply with applicable Payment Card Industry Data Security Standards, (“PCI DSS”) as such may be amended from time to time, with respect to all card data. Affiligate may, in its sole discretion, provide you with additional requirements related to your collection, usage, and storage of Affiligate User Data. Affiligate will provide as much notice as reasonably practicable for any additional requirements. You must provide Affiligate with documentation demonstrating Partner’s PCI compliance upon request. If Affiligate is unable to validate your PCI compliance, Affiligate may (i) hold any funds due you, (ii) remove all marketing referring to you from Affiligate.com, or (iii) notify Referred Merchants that you are not PCI compliant. This Agreement does not limit your ability to collect, use, and store information from Partner Users as long as the information is not Affiligate User Information, and you did not gain the information from Partner’s usage of the Affiligate Services.

Section 6.6. Feedback.

In the event that either Party provides suggestions, comments, or other feedback (“Feedback”) with respect to the Affiligate’s Confidential Information, Affiligate Services, Partner Product, or Intellectual Property, the following will apply:

a) All Feedback shall be given entirely voluntarily;

b) Feedback, even if marked confidential, shall not create any confidentiality obligations on a Party unless such Party has otherwise agreed in a signed agreement;

c) a Party shall be free to use, disclose, reproduce, distribute and otherwise commercialize all Feedback provided without obligation or restriction of any kind on account of intellectual property rights or otherwise; and

d) each Party waives all rights to be compensated or seek compensation for the Feedback.

ARTICLE VII: TERM AND TERMINATION
Section 7.1. Term.

This Agreement is effective as of the Effective Date and shall continue unless terminated as set out herein.

Section 7.2. Termination.

Either Party may terminate this Agreement at any time upon thirty (30) days’ notice. We may terminate this Agreement if you breach a material term of this Agreement and the breach is not cured with ten (10) days after receiving written notice of the breach. The Agreement may be terminated by either Party effective immediately and without any requirement of notice, in the event that: (i) the other Party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such Party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such Party and not stayed, enjoined, or discharged within sixty (60) days; or, (iv) the other Party adopts a resolution for discontinuance of its business or for dissolution.

Section 7.3. Effect of Termination.

Upon termination or expiration of this Agreement the following shall apply: (i) all rights and licenses under this Agreement shall immediately terminate; (ii) you must destroy all Affiligate User Information within seven (7) calendar days of termination, and upon Affiligate’s request provide proof of such destruction within seven (7) calendar days; and (iii) you will remain liable for any amounts or other liability under this Agreement.

ARTICLE VIII: LEGAL TERMS
Section 8.1. Contracting Entity.

This chart explains the Affiligate entity with whom you are entering into this Agreement, the address for notice to Affiligate, which governing law applies to the Agreement, and which courts have jurisdiction to adjudicate lawsuits.
Section 8.2. Notice.

Notice to You. You agree that Affiligate may provide notice to you by emailing it to the email address listed in your Affiligate Partner Program Account and shall be considered to be received by you within 24 hours of the time we send the email.
Notices to Affiligate. Notice to Affiligate must be sent by postal mail to the address for notice listed above.
Section 8.3. Indemnification / Limitation of Liability / Disclaimers.

Indemnification. Each Party agrees to defend, indemnify and hold harmless the other Party, its parent, officers, directors and employees from any claim, suit, or demand (including attorney’s fees) made or incurred by any third party that is based on or arising out of: (i) breach of this Agreement, (ii) violation of any law, regulation, or rule; (iii) infringement of any third party’s IP rights, (iv) use of the Affiligate Services or the Partner Product, and/or (v) other actions or omissions resulting in liability to the other Party.
Limitations of Liability. IN NO EVENT SHALL EITHER PARTY, PARENT, SUBSIDIARIES, AFFILIATES, OR SUPPLIERS BE LIABLE FOR (i) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, WEBSITES, OR OTHER ACTIONS OR OMISSIONS, AND/OR (ii) AN AMOUNT EXCEEDING THE AMOUNT OF THE DIRECT DAMAGES DIRECTLY CAUSED BY THE BREACH OF THIS AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Affiligate DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE Affiligate WEBSITE, AND SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT. THE Affiligate WEBSITE, AND SERVICES ARE PROVIDED “AS-IS” AND Affiligate MAKES NO WARRANTY THAT OUR WEBSITE AND SERVICES, WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. Affiligate DOES NOT HAVE CONTROL OF, OR LIABILITY FOR, THE PRODUCTS OR SERVICES PURCHASED USING THE Affiligate SERVICES, OR GUARANTEE THE IDENTITY OF ANY Affiligate USER.
Security and Stability. You acknowledge that it is in the best interests of both you and Affiligate that Affiligate maintains a secure and stable environment; to that end, Affiligate reserves the right to change the method of access at any time. You also agree that, in the event of degradation or instability of Affiligate’s system or an emergency, Affiligate may, in its sole discretion, temporarily suspend your access to any of these services in order to minimize threats to and protect the operational stability and security of the Affiligate system.
Uptime. Affiligate does not guarantee that the Affiligate website and/or Affiligate Services will be available twenty-four hours a day, seven days a week.
Section 8.4. Competitive or Similar Materials.

Notwithstanding the foregoing, in no event shall Affiligate be precluded from developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and/or distributing, materials which are competitive with your products and/or services, so long as Affiligate does not infringe on your intellectual property rights.

Section 8.5. Taxes.

It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. Affiligate is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting, or remitting any taxes arising from any transaction.

Section 8.6. Your Relationship with Affiligate.

You and Affiligate are independent contractors. This Agreement does not create or imply any partnership, agency, or joint venture.

Section 8.7. Assignment.

You may not transfer or assign any rights or obligations you have under this Agreement without Affiligate’s prior approval. Affiligate reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement by providing you with notice of such transfer or assignment.

Section 8.8. No Waiver.

Any failure to enforce any provision of this Agreement will not be deemed a waiver of a Party’s ability to enforce the same provision of the Agreement at a future date.

Section 8.9. Severability.

If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

Section 8.10. Force Majeure.

Affiligate is not responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond Affiligate’s reasonable control. In the event of such a failure, Affiligate’s obligations shall be suspended until such time as the cessation of any cause of such failure.

Section 8.11. Complete Agreement.

This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement and the other agreements you have entered into with Affiligate sets forth the entire understanding between you and Affiligate with respect to the Affiligate Services.

Section 8.12. Survival.

The following sections shall survive termination of this Agreement: Affiligate User Information, Confidentiality and Intellectual Property, Term and Termination, Legal Terms, and Definitions; as well as any other terms which by their nature should survive, will survive the termination of this Agreement.

ARTICLE IX: DEFINITIONS
Section 9.1. Defined Terms.

“API Credentials” means your API username and password, and either an API signature or an API certificate.
“Intellectual Property” means any and all intellectual property or proprietary rights under any jurisdiction including without limitation (i) Marks, and all goodwill associated therewith and symbolized thereby; (ii) inventions, discoveries and ideas, whether patentable or not, and all patents, registrations, and applications thereof, (collectively, “Patents”); (iii) published and unpublished works of authorship, whether copyrightable or not (including without limitation databases and other compilations of information), copyrights therein and thereto, and registrations and applications thereof, (collectively, “Copyrights”); (iv) trade secrets,(v) all moral rights in the foregoing (that is, the right to claim authorship of or object to the modification of any work); and (vi) all applications, renewals, extensions, restorations and reinstatements of the foregoing.
“Marks” means the trademarks including registered and common law trademarks, trade names, service marks, logos, domain names and designations of a Party
“New Merchant” means a United States or Canadian merchant that (i) does not have a Affiligate account or has not processed any transactions through Affiligate in the 365 days immediately preceding the New Merchant’s first transaction with Affiligate; (ii) is referred by a Trackable Means; and (iii) has a Affiligate account in good standing.
“Partner Portal” means the website located at www.affiligate.com/affiligate-partner-program or a successor site designated by Affiligate with dedicated partner specific content and confidential log in and password. The Partner Portal provides tools and information about the Program, including the Program Guide, Terms of Use, and Privacy Policy.
“Partner Product” means the ecommerce or retail related product or solution offered by you to your customers, which incorporates the Affiligate Services, as contemplated in this Agreement.
Affiligate,” “us,” and “our” means the contracting entity based on the country as described in the Legal Terms section of this Agreement.
Affiligate API” means the Affiligate application programming interfaces used by Affiligate merchants to interface with the Affiligate Systems in connection with their use of the Affiligate Services.
Affiligate Content” means all the data passed through the Affiligate APIs, including any User Data of Affiligate or its merchants. Affiligate Content does not include any data that you obtain independent of Affiligate and the Affiligate APIs.
Affiligate Materials” means any information and materials provided by Affiligate to you describing the Affiligate Services for use in conjunction marketing such services.
Affiligate Services” means the payment services provided by Affiligate to its merchants. The Affiligate Services may be updated with certain functionality from time to time.
Affiligate Site” means www.affiligate.com or www.affiligate.co or such other website(s) provided by Affiligate for its users located in particular countries or jurisdictions.
Affiligate Systems” means the facilities, hardware, software, Affiligate APIs and processes owned or licensed by Affiligate to provide the Affiligate Services to its users.
Affiligate Users” means any person who accesses a Affiligate website, uses the Affiligate Services, and/or any person or entity that has agreed to the Affiligate User Agreement
“Referred Merchant” means a (i) New Merchant or (ii) United States or Canadian merchant that (a) has a Affiligate account in good standing; (b) is referred by a Trackable Means, and (c) is eligible from the date of your first partner agreement with Affiligate but in any event no earlier than May 1, 2017.
“Trackable Means” means a unique transaction identifier provided by Affiligate to Partner and added by the Partner to applicable Affiligate integrations and is the means of identifying, tracking, and associating merchants using such integrations with Partner. The unique transaction identifier may be a web address or URL embedded with a Partner ID assigned to Partner, a unique identifier sent in the transaction referred to as a partner ID, or a BN Code.
“User Agreement” means the Affiligate User Agreement found on each Affiligate Site.
“User Data” means customer or User Information, including personally identifiable information, collected from a customer or user of a Party.
“User Information” means any customer information that a Party collects directly from its Users without the use of the Affiligate Services or the Partner Product as the case may be.
“Your Users” mean customers that have entered into a relationship with you to purchase goods or services. Your Users that have a Affiligate account are also Affiligate Users.