RePlan65 Affiliate Program Terms of Service

 

PLEASE READ THIS AGREEMENT CAREFULLY. BY JOINING AND PARTICIPATING IN THE RePlan65 AFFILIATE PROGRAM, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE. NOTE THAT SECTION 14 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH, IF APPLICABLE TO YOU, AFFECTS YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT PARTICIPATE IN THE RePlan65 AFFILIATE PROGRAM.

 

This RePlan65 Affiliate Program Agreement (“Agreement*”) applies to each affiliate’s (“**Affiliate*,” “*you*” or “*your*”) access to and participation in the RePlan65 Affiliate Program (the “Program*”), which is operated by RePlan65 and Munchbach Family Office, LLC (“Company”, “our*”, “*us*” or “*we*”). This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Company for other products and services. In addition, this Agreement complements and incorporates by reference Company’s Terms of Services at https://RePlan65.com/terms (“*Terms of Service***”). In the event of any conflict between the Terms of Service and this Agreement related to the Program, this Agreement will control.

 

Each Affiliate is responsible for assuring that its employees, agents, and contractors comply with this Agreement. The “Site*” refers to the RePlan65 website at https://RePlan65.com/ and “**Your Website***” refers to any websites that you will link to the Site.

 

1. Enrollment

To enroll in the Program, you must (1) complete the registration process and agree to the Affiliate Program Agreement at www.RePlan65.com/affiliate; and (2) provide a valid PayPal account for receiving payment. After verification of your PayPal account by us, you may be granted access to the Program. Company reserves the right to re-evaluate your registration at any time and reserves the right to terminate this Agreement and your participation in the Program at any time with or without notice.

 

2. Eligibility / Sanctioned Nations

 

By participating in the Program, you warrant that you are not a resident of any country currently under sanction by the Office of Foreign Assets Control (“*OFAC*”), which include: Balkans, Belarus, Burma, Cote d’Ivoire, Cuba, DR of the Congo, Iran, Iraq, Liberia (the former regime of Charles Taylor), Lebanon, Libya, North Korea, Somalia, Sudan, Syria, Yemen, and Zimbabwe. Please note that the list of sanctioned countries can change at any time; however, a current list can always be located at http://www.treas.gov/offices/enforcement/ofac/programs. Participation in the Program as a resident of a sanctioned country is prohibited. You further agree to comply with applicable OFAC restrictions and to not advertise or otherwise engage in commercial activities with persons or businesses residing in countries under sanction. You are responsible for compliance with the laws of your local jurisdiction. Each Affiliate is responsible for compliance with all applicable U.S. laws and regulations. Pursuant to Section 1, you must have a PayPal account to participate, which is not available in all countries. Your use of PayPal will be subject to separate terms required and made available by PayPal, and will not be governed by this Agreement.

 

3. How to Earn Affiliate Fees

 

Upon acceptance into the Program, unique links will be made available to you through the Site (your “*Links*”). You will be able to review the Program’s details and banner creatives, browse, and access other authorized marketing resources, which will be subject to the license in Section 9 and the terms of this Agreement.

Subject to the attribution standard in this Section 3, for each person that you refer to the Site using your Links that completes a transaction on the Site that results in payment to Company, you will receive 30% of the revenue generated by such person during the life of their relationship with the Company in the form of a service fee (your “*Affiliate Fee*”). For example, if someone you refer is on a monthly payment plan for $29 a month, you will receive an Affiliate Fee (commission) for $8.70 for every month they are an active, paying customer.. You will not receive an Affiliate Fee for any refunded or returned transactions. If a refund is issued after the Affiliate Fee has already been approved and paid, a negative balance will be created on your account and will be deducted from future Affiliate Fees. Any payment received by Company through Stripe from a customer will result in a valid referral created and a payable Affiliate Fee, subject to verification and approval by Company. To earn Affiliate Fees, you must comply with all terms of this Agreement, including the Program Restrictions in Section 4 and FTC disclosure requirements in Section 5.

The Affiliate Fee will go to the last Link that the person making the purchase clicked before completing their transaction, provided that such purchase occurs within 90 days of the Link being clicked. For example, if Customer A clicks on a Link provided by Affiliate X, but then clicks on a Link provided by Affiliate Y and completes a transaction on the Site, Affiliate Y will receive the full Affiliate Fee for transactions related to Customer A. Affiliate Fees will not be split or transferred. For clarity, clicks on Links are valid for 90 days, so if a customer purchase more than 90 days after clicking the Link, you will not receive an Affiliate Fee for such transaction.

See Section 6 for information on payments, including processing, timing, and limitations.

 

4. Program Restrictions

 

*a) Compliance with Law:* You represent and warrant that, in connection with your participation in the Program, you, Your Website(s), and any advertising materials related to the Program, will not violate any law, regulation, or regulatory rules or guidelines, including the Federal Trade Commission’s endorsement disclosure requirements pursuant to Section 5 below. Also, if you choose to promote our Program via e-mail campaigns, you represent and warrant that you will comply with the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Program, which includes placing an opt-out in the email and making it clear that you are the sender of the email and not acting at the direction of Company. If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive, as well as the General Data Protection Regulation (GDPR), if you are conducting business in or taking orders from persons in one or more of the European Union countries.

*b) General Restrictions*: You represent and warrant that you agree to comply with the following:

1. 1. You will only use the Links we provide you for each banner, text link, or other affiliate link obtained from the affiliate interface without manipulation or modification of any kind.

   2. You may not “self-refer,” meaning that only transactions by other persons using your Link will result in Affiliate Fees.

   3. You will not engage in any behaviors that are fraudulent, abusive, or harmful to the Site or the Program in our discretion.

   4. We reserve the right, at any time, to review your placement and approve the use of your Links and require that you change the placement or use to comply with the guidelines provided to you.

   5. All domains that use your affiliate Link must be listed in your affiliate profile.

   6. Your Website will not in any way copy, resemble, or mirror the look and feel of the Site. You will also not use any means to create the impression that Your Website is our Site or any part of our Site, including by framing of our Site in any manner.

   7. You may not engage in cookie stuffing or include pop-ups or false or misleading links on Your Website. In addition, you will not attempt to mask the referring URL information (i.e., the page from where the click is originating).

   8. You will not send your Link or any marketing messages in connection with the Program via SMS or text message.

   9. You will not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (also known as cloaking).

   10. If you are found redirecting Links to hide or manipulate their original source, any Affiliate Fees not yet paid by Company will be voided and your account will be terminated. This does not include using “out” redirects from the same domain where the affiliate Link is placed.

   11. The maintenance and the updating of Your Website(s) will be your responsibility. We may monitor Your Website(s) as we feel necessary to make sure that it is (or they are) up-to-date and to notify you of any comments as it relates to the Program.

   12. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to Your Website. You must have express permission to use any person’s or any business’s or entity’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s, business’s, or entity’s copyrighted material or other intellectual property in violation of the law or any third-party rights.

   13. You will not, in connection with this Agreement, display or reference on Your Website, any trademark or logo of any third-party seller on our Site unless you have an independent license for the display of such trademark or logo; use any data, images, text, or other information obtained by you from us or the Site in connection with this Agreement only in a lawful manner and only in accordance with the terms of this Agreement.

   14. You will not send unsolicited bulk-emails (spam). You will not create advertisements that appear on (a) sites and apps that contain or reference categories adult content, pornography, weapons, graphic violence (including any violent video game images), alcohol, drugs, tragedy, transportation accidents, sensitive social issues, gambling, or content that is offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), or solicitous of any unlawful or offensive behavior; or (b) ads that appear on fake news content.

   15. You will not use any images, text, or other content provided to you by Company except Licensed Material (defined in Section 9 below) as authorized under this Agreement and may not modify the graphic image or text in any way. All of our rights in the images and text, any other images, our trade names and trademarks, and all other intellectual property rights are reserved. We may revoke any licenses or other rights referenced in this Agreement at any time for any reason.

   16. You acknowledge our ownership of our Licensed Materials, agree that you will not do anything inconsistent with our ownership, and agree that all of your use of the Licensed Materials (including all associated goodwill) will inure to the benefit of, and on behalf of the Company. If requested, agree to assist us in recording this Agreement with appropriate government authorities. You agree that nothing in this Agreement gives you any right, title, or interest in the Licensed Materials other than the right to use the Licensed Materials in accordance with this Agreement. You also agree that you will not attack our rights in or title to the Licensed Materials or the validity of the Licensed Materials or this Agreement.

   17. You will not offer discounts, coupons, free trials, promo codes, or any other promotional offer that is not expressly authorized by Company in writing. Company may, on a case-by-case basis, offer you access to discounts, coupons, free trials, promo codes, or other promotional offer, and you agree to comply with all terms and limitations that Company establishes in connection with such promotional offers.

   18. Unless otherwise agreed upon in writing by Company, you may not promote through a sub-affiliate network and all advertising and all Affiliates must agree to this Agreement.

 

c) *Pay-Per-Click (“PPC”) Restrictions*: Unless The Company first gives you written permission, you agree to comply with the following restrictions:

1. 1. You may not bid on any of our Restricted Terms (defined below), including any variations or misspellings thereof for search or content-

       

      based campaigns on Google, Bing, MSN, Yahoo, Facebook or any other network.

      1. “*Restricted Terms*” means any of the following terms: RePlan65, RePlan65 and Munchbach Family Office, LLC, RePlan65.com, www.RePlan65.com, RePlan65 coupon, RePlan65 discount code, RePlan65 discount, RePlan65 promo code, RePlan65 sale, RePlan65 promo, RePlan65 sales, RePlan65 deals.

   2. You may not use our Restricted Terms, including any variations or misspellings as per above in sequence with any other keyword.

   3. You may not use our Restricted Terms in your ad title, ad copy, display name or as the display URL.

   4. You may not use any of our trademarked terms as part of the domain or sub-domain for Your Website.

   5. You may not direct link to the Site from any PPC ad or use redirects that yield the same result. Customers must be directed to an actual page on Your Website.

   6. You may not bid in any manner appearing higher than us for any search term in positions 1-5 in any auction-style PPC advertising program.

   7. If you automate your PPC campaigns, it is your responsibility to exclude our trademarked terms from your marketing and related activities and we strongly suggest you add our trademarked terms as negative keywords.

We have a strict no tolerance policy on PPC trademark bidding. We will not enter a discussion about when the violation started and when it stopped; you will forfeit all Affiliate Fees for a minimum of the past 30 days, your Affiliate Fee balance will be set to $0 without warning, and we may terminate your participation in the Program at our discretion.

d) *General Advertising Restrictions*: You represent and warrant that Your Website(s), social media posts, and any other advertising materials will not:

1. 1. Infringe on our or anyone else’s intellectual property, publicity, privacy or other rights.

   2. Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, offensive, or contains nudity, pornography, or sexually explicit materials.

   3. Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.

   4. Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate payments from another website. This includes toolbars, browser plug-ins, extensions, and add-ons.

e) *Social Media Restrictions*: You represent and warrant that when you advertise or promote the Program on Facebook, Twitter, Instagram, YouTube and other social media platforms, you will comply with the following requirements:

1. 1. 1. 1. You may only promote the Program and Links on your own social media pages.

         2. You are prohibited from posting your Links on our Facebook, Twitter, Pinterest, or any other Company social media account or page in an attempt to turn those Links into affiliate sales.

         3. You are prohibited from creating a social media account that includes our trademark(s) in the page name and/or username.

f) Privacy *Restrictions*: You represent and warrant that you will respect the privacy of consumers and be transparent about your data collection and use practices. That means that you may not collect personal information about individuals, including their names, email addresses, phone numbers, or any other personal information unless you have provided notice and obtained their consent in accordance with the law applicable in your jurisdiction. You may not under any circumstances engage in “scraping” or any other form of automated data collection to collect personal information about individuals. In addition:

1. 1. You may not contact people with promotional materials unless they have consented to be contacted through that medium consistent with relevant local law.

   2. You must comply with all applicable laws, rules, self-regulatory principles, and industry best practices governing the collection and use of data from users for purposes of serving ads that are targeted to their interests, including the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising, Mobile Principles, and Cross-Device Principles, and FTC Guidance on Cross-Device Tracking.

   3. You agree to promptly notify Company in the event of any Privacy Incident, and to promptly cooperate with Company in the event of any Privacy Incident that Company escalates to you or requests your cooperation. A “*Privacy Incident*” includes any allegation that you have not properly provided notice or obtained consent to collect personal information, sent SMS, engaged in phone calls or email messages, collected data in a manner inconsistent with your privacy policy, user notice, applicable law, or applicable self-regulatory rules.

 

5. FTC Disclosure Requirements

 

Where it is not expressly clear that the Link is a paid advertisement, paid advertising, or otherwise promotional in nature, and/or that you are receiving compensation from Company in connection with the Program, you must include a disclosure statement within any and all pages, blog posts, social media posts, or any other content where you include a Link or otherwise advertise or endorse the Site or Company in connection with the Program. This “*material connection disclosure*” statement should be clear and concise, stating that we are compensating you for your participation in the Program. Also, any statements you make about Company must reflect your honest opinions, beliefs, or experiences and must not be false, misleading, or unsupported. You must follow these guidelines in making your material connection disclosures:

• Disclosures must be made as close as possible to the claims.

• Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. Disclosure should be visible before the jump).

• Pop-up disclosures are prohibited.

For more information about FTC disclosure requirements, see the FTC’s “Dot Com Disclosures” Guidelines at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; the FTC’s Endorsement Guidelines at http://business.ftc.gov/advertising-and-marketing/endorsements; and the FTC’s Native Advertising Guidelines at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses.

 

6) Payment of Affiliate Fees

 

Pursuant to Section 3 of this Agreement, only transactions made by the referred individual that are completed after last using your Link will result in Affiliate Fees. You will not receive Affiliate Fees for transactions that are cancelled by customers, returned, charged back, or refunded. Affiliate Fees typically take 30-60 days to process in order to account for any refunds (refunds will result in no Affiliate Fee being awarded for the applicable, refunded transactions). Affiliate Fees will be approved on or about the 1st of every month with payouts on or about the 2nd of every month (excluding holidays and weekends, which will be approved or paid on or about the next business day). For example, if you earn an Affiliate Fee on August 5th, it, along with all August Affiliate Fees, would likely be approved by October 1 and paid on October 2.

If the person that you refer pays monthly, you will receive payment of Affiliate Fees monthly. If the person that you refer pays annually, you will receive one payment of Affiliate Fees for the year, within approximately 60 days after the person pays for their annual purchase (provided the person does not obtain a refund).

We reserve the right to exclude transactions and to not pay Affiliate Fees for them, if we deem it necessary, in our sole discretion, to prevent abuse of the Program, or to reject orders that do not comply with any requirements that we periodically may establish. If we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, the Terms of Service, or any other terms and conditions that we publish on our website at www.RePlan65.com/affiliate-tos, we expect that you will respond in a timely and honest manner. A failure to be forthcoming, responsive, or provide requested substantiation may result in your termination and removal from the Program.

You are responsible for all taxes and reporting requirements related to your Affiliate Fees.

We will track sales by customers who engage in transactions using your Link on your site to the Site. A statement of activity is available to you through your affiliate interface.

 

7) Audits/Records

 

You will maintain accurate and complete records relating to your conduct under the Program. Upon request, you will enable Company or its designated service provider to audit your records and other materials to verify your compliance with the Agreement. Company will provide notice of an audit request. In addition, you will promptly provide such records and other materials, and provide other cooperation and assistance, as requested by Company. You will promptly notify Company of any inquiry received by you from any news media, reporter, publication, trade association or governmental authority, and of any complaints or allegations of wrongdoing received by you, with regard to Company, the Program, or your conduct under this Agreement.

 

8) Modification and Termination

 

Company reserves the right to change, modify, and/or eliminate the Program and/or all or any portion of this Agreement or any policy pertaining to the Program at any time and for any reason in its sole discretion, including our right to discontinue or change the benefits or Affiliate Fees received under the Program or merge the Program with another program. If we make changes, we will post the amended Agreement to www.RePlan65.com/affiliate-tos and update the “Effective Date” above. We may also attempt to notify you in other ways, including via email. Unless we say otherwise, the amended Agreement will be effective immediately and your continued participation in the Program after the amended Agreement is posted will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you must stop participating in the Program.

We have the right to monitor Your Website at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to Your Website that must be made for your participation in the Program to continue. If you do not make the changes to Your Website that we feel are necessary, we reserve the right to terminate your participation in the Program.

Either party may terminate the Agreement in its entirety, with or without cause, by giving written notice to the other party. Upon the termination of this Agreement for any reason, you will immediately cease all activities in connection with the Program, and you will immediately cease all use of, and remove from Your Website(s), all Links to the Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you (including all Licensed Materials) pursuant hereto or in connection with the Program. Upon termination, you will receive no additional Affiliate Fees. Any outstanding payment obligations and Sections 7 (Audits and Records), 8 (Modification and Termination), 10 (Representations and Warranties), 11 (Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Dispute Resolution), 15 (Confidentiality), 16 (Miscellaneous) will survive the expiration or termination of this Agreement.

 

9) Grant of Licenses

 

1. Subject to your continuing compliance with this Agreement, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable and limited right to (i) access our Site through the Links provided to you by Company solely in accordance with the terms of this Agreement, including the restrictions set forth in Section 4; and (ii) solely in connection with such Links, to use our logos, trade names, trademarks, and similar identifying material, including marketing and advertising information that we provide to you or authorize for such purpose (collectively, the “Licensed Materials”).

2. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Program. You agree that all uses of the Licensed Materials will be on behalf of the Program and the goodwill associated therewith will inure to the sole benefit of Company.

3. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

4. Except for the limited license granted under this section, you do not obtain any rights under this Agreement in any intellectual property, including any intellectual property with respect to our Site, the Link that you are provided by Company, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to our domain name.

 

10) Representations and Warranties

 

You represent and warrant that:

1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and that your performance of your obligations under this Agreement does not (and will not) constitute a breach of or conflict with any other agreement or arrangement by which you are bound;

2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; and

3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement such that the rights you grant are valid, complete, and do not and will not infringe any third-party rights or violate any applicable laws, rules, or regulations.

 

11) Disclaimer

 

THE PROGRAM, THE LINKS, THE SITE, AND THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES, IN CONNECTION WITH THE PROGRAM OR THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR LOSS OF DATA.

YOU UNDERSTAND THAT IN THE COURSE OF CONDUCTING ACTIVITIES RELATED TO THE PROGRAM, YOU MAY INTERACT WITH A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHERS. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE PROGRAM. COMPANY, ITS PARENT COMPANIES, SUBSIDIARIES, AND ITS CORPORATE AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY POTENTIAL NEW USER, OR ANY OTHER THIRD PARTY.

 

12) Limitation of Liability

 

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.

 

13) Indemnification

 

You will indemnify, hold harmless, and (at Company’s option) defend Company and its parent companies, subsidiaries, and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) with respect to any third-party claim arising out of or related to: (a) your performance of and conduct in connection with the Program and this Agreement, including the activities of your personnel, agents and subcontractors; (b) allegations that any content or other material you distribute, display, or perform infringes or violates any intellectual property right, right of publicity, or other proprietary right (except to the extent the allegedly infringing material was Licensed Material originally provided by Company to you for such distribution, display, or performance and provided you have not modified such Licensed Material in any way); (c) allegations that any of the messages you send or communications made, or your participation in, and activities conducted in connection with the Program violate any law or regulation, including the CAN-SPAM Act, Telephone Consumer Protection Act, or relevant or applicable laws, rules, or regulations; (d) any advertising claim related to your site, including content therein not attributable to us; (e) your failure to satisfy any debt, obligation or liability, including your failure to comply with your obligations to any of your personnel, agents or subcontractors, including payment of wages, provision of benefits, and payment of employment taxes; or (f) your breach of this Agreement, including any of your representations, warranties, or obligations herein. Unless Company directs otherwise in writing or elects to control the defense, you will assume the defense of the indemnified claim through counsel designated by you and reasonably acceptable to Company, and Company may, at its expense, participate in the defense with its own counsel. You will not settle or compromise any indemnified claim, or consent to the entry of any judgment, without written consent of Company, which will not be unreasonably withheld. Company will reasonably cooperate with you in the defense of an indemnified claim, provided that you reimburse Company for its costs and expenses as they are incurred to provide such cooperation.

 

14) Dispute Resolution. Arbitration

 

This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR COMPANY’S INTELLECTUAL PROPERTY RIGHTS. The term “*dispute***” means any dispute, action, or other controversy between you and Company concerning the Website or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.**

1. Notice of Dispute*: In the event of a dispute, you or Company must give the other a “**Notice of Dispute***,” which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: Jim @ Munchbach.com. Company will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Company will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or Company may commence arbitration.

2. *Binding Arbitration*: If you and Company don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Boise, Idaho, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Idaho law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party will be borne by the non-prevailing party.

3. *Prohibition of Class and Representative Actions and Non-Individual Actions*: You and Company agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and Company agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding.

 

15) Confidentiality

 

You will not disclose to any third-party nonpublic information disclosed by Company to you under this Agreement, and you will protect all such disclosed information with the same degree of care you would use to protect your own confidential information. Confidential information submitted to you by Company remains the property of Company. If this Agreement or any confidential information of Company is required to be produced by law, you will promptly notify Company and cooperate to obtain an appropriate protective order prior to disclose any confidential information of Company.

 

16) Miscellaneous

 

1. 1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Website(s) or otherwise, that reasonably would contradict anything in this Section. You may be required to complete a Form W-9 or W-8BEN as a condition of receiving your Affiliate Fees and will cooperate with all requests by Company to complete documentation in connection with your participation in the Program and to comply with applicable tax obligations.

   2. Customers who buy products through the Program are our customers. All of our standard policies and operating procedures will apply to these customers. We may change our policies and operating procedures at any time. Product prices and availability may vary from time to time.

   3. You may not assign your rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of your business or assets.

   4. This Agreement is be governed by and interpreted in accordance with the laws of the United States and the State of Idaho without regard to the conflicts of laws and principles thereof.

   5. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

   6. This Agreement represents the entire agreement between us and you with respect to the Program, and supersedes all prior agreements and communications of the parties, oral or written with respect thereto.

   7. The headings and titles contained in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement. The use of the terms “include,” “includes,” or “including” is illustrative and not limiting.

   8. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement will have full force and effect.

   9. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

   10. You acknowledge that we may at any time admit others into the Program and you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than the terms set forth in this Agreement.