The object of the Program is to publish electronic advertisements on the website, emails and other digital media (an “Affiliate Site”) of the Affiliate for selected software products offered by EXNP. Instead of fixed compensation, the Affiliate receives Advertising Cost Compensation based on orders with irrevocably completed payment in exchange for publishing the advertisements. The Advertising Cost Compensation depends on the actual sales generated by end users referred via the electronic advertisement / the Affiliate’s link. EXNP handles the distribution of the software products in accordance with the terms and conditions and provisions of the underlying EXNP Agreement.
This Affiliate Agreement (“Agreement”) contains the complete terms and conditions between us, EXNP Inc (“EXNP”) and you, regarding your application to and participation in, the EXNP Affiliate Program (the “Affiliate Program”) as an affiliate of EXNP (an “Affiliate”), and the establishment of links from Affiliate Site to our website, https://www.WaitApp.com.
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THE EXNP TERMS AND CONDITIONS AND THAT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
“Affiliate” – The business, individual, or entity applying to or participating in the Affiliate Program, or that displays EXNP products and/or promotions on its website, or other means, using an affiliate tracking code in exchange for receiving a commission from EXNP for sales directly resulting from such display.
“Affiliate Site” – The Affiliate’s website, email or other digital media which displays EXNP’s Products and/or promotions.
“Affiliate Area” is Affiliate’s password-protected secure interface that allows the Affiliate to (i) gain access to referred sales through a secure online connection and (ii) change Affiliate-related settings for Program participation, e.g. input or alteration of personal data.
“EXNP’s Products ” – WaitApp and related software products that are available for purchase from EXNP.
“Commission Fees” – The amount you will be paid for each Qualified Purchase by a Referred Customer that you refer to EXNP subject to the Commission Threshold and pursuant to the terms of this Agreement.
“Commission Threshold” – The amount of Commission Fees an Affiliate must accrue prior to receiving a payment from EXNP.
- “Qualified Purchase” – A sale of EXNP Products by EXNP, with a term of twelve (12) months or longer, to a Referred Customer that is not excluded under Section “Commission Determination; Qualified Purchases”.
“Referred Customer” – Each new and unique customer referred from Affiliate through a Link that provides valid account and billing information.
“Registration Form” – Any and all order forms or other signup or acceptance form submitted by a customer to purchase EXNP’s Products.
- Enrollment in the Affiliate Program
- To begin the enrollment process, you must submit a completed Affiliate Program Signup Form. The Signup Form can be found at https://www.WaitApp.com/affiliate-area
- We will evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your website is not suitable for the Affiliate Program for any reason.
- If we reject your application, for any reason, you may not re-apply to the Affiliate Program utilizing the same domain name/URL or reapply using a different domain/URL name and then add the previously rejected domain name/URL to your affiliate account. EXNP, in its sole discretion, reserves the right to notify or to not notify any prospective affiliate of their rejection or removal from the Affiliate Program at any time.
- Promotion of Our Affiliate Relationship
- Use of Links.If you qualify and agree to participate as an Affiliate, we will make a variety of graphic and textual links available to you (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify your Affiliate Site as a member of the Affiliate Program and will establish a link from your Affiliate Site to EXNP’s website. You agree to cooperate fully with us in order to establish and maintain such Links. You further agree that your use of the Links must be in compliance with this Agreement at all times. EXNP may modify the Links from time to time in its sole discretion. You will not use graphic or textual images (indicating a Link) or text messages to promote EXNP that are not approved in advance by EXNP. All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge (e.g. iframe). Any information with respect to EXNP and WaitApp that is going to be displayed on the Affiliate Site must be preapproved by EXNP in writing.
- Disclaimer.EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE EXNPOR WAITAPP TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “EXNPIP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT EXNP’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE EXNPIP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF EXNPIP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF EXNPIP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF EXNP’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY EXNP’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICHEXNPSEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF EXNP’S INTELLECTUAL PROPERTY RIGHTS.
- Discounts and Coupons.You are not allowed to post any refunds, credits or discounts on the EXNP Products and Services, or other content concerning EXNP without EXNP’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the EXNP website will in no way alter the look, feel, or functionality of the EXNP website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees
- FTC Endorsement Compliance
- It is the intent of EXNP to treat all of our customers fairly. Accordingly, we require all EXNP Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites (e.g. directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of EXNP’s Products and Services must prominently disclose the fact that you receive compensation for Referred Customers.
- For more information and suggestions about how to comply with these guidelines, please visit our page entitled “Affiliate Disclosure Requirements and Examples.”Please note that this page is only intended to provide guidance. It does not purport to provide legal advice and it does not guarantee that you’ll be in compliance with FTC regulations should you follow the suggestions presented. You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.
- EXNP reserves the right to withhold Commission Fees and cancel the affiliate relationship with you should we determine, at our sole discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations or guides that we deem relevant.
- Data Security
In addition to the obligations set forth in Section FTC Endorsement Compliance above for USA based affiliates, Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist EXNP in complying with any data subject rights request under the GDPR that EXNP may receive from any individuals referred to EXNP by Affiliate. Affiliate further agrees to promptly assist EXNP in complying with any duties to cooperate with supervisory authorities under the GDPR.
- Order Processing
EXNP will process orders placed by Referred Customers who follow the Links from an Affiliate Site to EXNP. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including EXNP’s services, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your Affiliate Site and will make this information available to you through our website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links between your website and our website are properly formatted.
- Commission Determination; Qualified Purchases
- Commissions will be calculated based on the commission rates stated on the EXNP website for each Qualified Purchase (as defined herein) subject to commission accruing. A “Qualified Purchase” does NOT include the following:
- A purchase by a Referred Customer that has transferred from any EXNP partners or subsidiaries.
- A purchase by a Referred Customer who is also associated with any EXNP reseller, referral, or other program.
- A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or other program.
- A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
- A purchase by a Referred Customer that has not been in good standing for a period of at least thirty (30) days.
- A purchase that EXNP suspects, in its sole discretion, is the result of fraud.
- A purchase referred by an Affiliate that has an excessive cancellation rate as determined in EXNP’s sole discretion.
- A purchase by a Referred Customer who received a popup with a discounted offer, while leaving EXNP’s website during their purchase.
- EXNP reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by EXNP in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
- EXNP 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. EXNP reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.
- EXNP 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; EXNP 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 EXNP to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in EXNP’s sole discretion.
- Commissions for any Referred Customer who is associated with any EXNP reseller, referral or other program may not be considered a Qualified Purchase. In other words, you may not receive double commissions or compensation.
- In the event that the Referred Customers that are referred to EXNP by an Affiliate are determined to have an excessive cancellation rate, as determined by EXNP in its sole discretion, EXNP reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
- Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud EXNP or any violation of the terms of this Agreement constitutes immediate grounds for EXNP to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
- Commissions will be calculated based on the commission rates stated on the EXNP website for each Qualified Purchase (as defined herein) subject to commission accruing. A “Qualified Purchase” does NOT include the following:
- Accrual of Commissions
Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation and (ii) reach the Commission Threshold of 100 CAD based on the commission rates stated on the EXNP website, solely as applied to Qualified Purchases which occurred within ninety (90) days of the end of the calendar month in which the first of such Qualified Purchases occurred. For example, if you provide sign-ups which result in one Qualified Purchase on January 1st and a second sign-up which leads to a Qualified Purchase on August 10th, and you provide all necessary tax documentation on August 10th, no commission would accrue because the second Qualified Purchase occurred more than one hundred and eighty (180) days after the end of January when the first Qualified Purchase occurred. However, if you subsequently provide a sign up which leads to another Qualified Purchase on September 5th of the same year, then commissions would accrue on the latter two Qualified Purchases (i.e., the Qualified Purchases from August and September of the same year). All Qualified Purchases still eligible to result in commissions under “Accrual of Commissions” Section must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a commission. Once a commission has accrued under Accrual of Commissions” Section, the amount of such commission (the “Commission Fee”) shall be due and payable to you under the terms of Commission Payments” Section below. EXNP reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.
- Commission Payments
- Subject to the terms of this Agreement and the accrual of commissions as set forth in Section “Accrual of Commissions” above, commissions will be calculated according to the specified percentage or dollar amount set forth in the commission report in your Affiliate Areafor each Qualified Purchase that accrues during the period for which such commission fee is being calculated.
- Commission Fees will be processed approximately forty-five (45) to sixty (60) days after the end of the month or other period in which they accrue. EXNP will only compensate you for Qualified Purchases made in accordance with this Agreement.
- Commission Fees shall be paid based on the current information in your Affiliate profile. You are required to notify us promptly of any change in your address by updating your profile information in the Affiliate console. You are responsible for informing EXNP of your desired payment form/type. You can update or change your desired payment method at any time by updating your affiliate profile located in the affiliate console. Any changes to your desired payment method may take up to two payout cycles to take effect.
- You may choose to receive Commission Fees through PayPal, check or email transfer, subject to the following conditions:
- PayPal Payments:Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside.(PayPal payments will only be reissued within one hundred and twenty (120) days of the original issue date in the case of an incorrect PayPal address or refusal from PayPal to accept a payment.)
- EXNP is not responsible for paying any third-party fees charged by PayPal or ACH in order for you to receive Affiliate Commission Fees.
- EXNP, 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.
- Disputes: Affiliate has access to EXNP’s real-time Affiliate Program statistics and agrees to file 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 EXNP and Affiliate forfeits forever any rights to a potential claim.
- It is solely your responsibility to provide EXNP with accurate tax and payment information that is necessary to issue a Commission Fee to you. If EXNP 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.
- Any address change must be made in the Affiliate Areaat least fifteen (10) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed
- Reports of Qualified Purchases
You may log into your Affiliate Areato review your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued for all Referred Customers that appear in the Affiliate Area.
- Obligations Regarding Your Affiliate Site
- You are solely responsible for the development, operation, and maintenance of your Affiliate Siteand for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of your Affiliate Siteand all related equipment; creating and posting product reviews, descriptions, and references on your Affiliate Siteand linking those descriptions to our website; the accuracy of materials posted on your Affiliate Site (including, but not limited to, all materials related to EXNP Products and Services); ensuring that materials posted on your Affiliate Sitedo not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters
- We have the right in our sole discretion to monitor signups through your Affiliate Site from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate your participation in the Affiliate Program effective immediately.
- EXNP Responsibilities
We will provide all of the information necessary for you to make Links from your Affiliate Siteto our site. EXNP will be solely responsible for order processing (including payment processing, cancellations, and refunds) for orders for EXNP Products placed by a Referred Customer following a Link from your Affiliate Site, for tracking the volume and amount of Qualified Purchases generated by your Affiliate Site, and for providing information to Affiliates regarding Qualified Purchase statistics. EXNP will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related EXNP service.
- Policies and Pricing
Referred Customers who buy EXNP Products and Services through our affiliate network are deemed to be EXNP Customers. EXNP’s Terms and Conditions, rules, policies, and operating procedures will apply to such customers. We may change our policies, pricing, and operating procedures at any time. For example, EXNP determines the prices to be charged for EXNP Products and Services sold through the affiliate network in accordance with our own pricing policies. Prices and availability of EXNP Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that you have listed on your Affiliate Site, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information on our website, but we cannot guarantee the availability or price of any particular EXNP Product or Service.
- E-mails and Publicity
You shall not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as “SPAM”) without prior written consent from EXNP, to be granted or denied in EXNP’s sole discretion, in each instance. Additionally, you may only send emails containing a EXNP affiliate link and or a message regarding EXNP or EXNP’s Affiliate Program to people who have previously consented to receiving such communications from you. Your failure to abide by this section “E-mails and Publicity”, the CAN-SPAM Act of 2003, our Anti-Spam Policy, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by you and will result in the forfeiture by you of any and all rights you may have to any commissions and the termination of your participation in the Affiliate Program. Further, if your account has excessive clicks in a very short period of time as determined by EXNP in its sole discretion, the Affiliate relationship may be terminated.
- Licenses and Use of EXNP Logos and Trademarks.
- Subject to the limitations set forth in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the EXNP trademark and logo and similar identifying material provided by us (collectively, the “Licensed Materials”), for the sole purpose of selling EXNP Products and Services on your Affiliate Site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in compliance with all of the terms of this Agreement.
- You shall not use the Licensed Materials for any purposes other than selling EXNP Products and Services, without first submitting a sample to us and obtaining the express prior written consent of EXNP in each instance. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays EXNP, any hosted member of EXNP or any EXNP employee or representative in a negative light. We reserve all of our rights in the Licensed Materials and your license to use such material is limited to the manner described herein. We may revoke your license at any time, by giving you written notice. If not previously revoked, this license shall immediately terminate upon the termination of your participation in the Affiliate Program.
- You grant to us a non-exclusive license to utilize your name, title, trademarks, and logos (the “Affiliate Trademarks”) in any advertisement or other materials used to promote EXNP and the Affiliate Program, provided that EXNP’s use of the Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of your participation in the Affiliate Program.
- Term and Termination
- The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause.
- You are only eligible to earn Commission Fees on Qualified Purchases occurring during the Term. Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related EXNP Products and Services are not cancelled within (30) days and comply with all of the terms of this Agreement. We may withhold your 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 EXNP in its sole discretion.
- Any Affiliate who violates this Agreement, EXNP’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 Affiliate Program.
- EXNP reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in EXNP’s sole discretion.
We may modify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein. Such modifications shall take effect when posted on our 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 Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. Your continued participation in the Affiliate Program following our posting of any modification on our website will constitute binding acceptance of the change.
We make no express or implied warranties or representations with respect to the Affiliate Program or any EXNP Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.
- Representations and Warranties
You hereby represent and warrant to us as follows:
- You have reviewed and understand this Agreement and agree to be bound by its terms.
- Your acceptance of this Agreement and participation in the Affiliate Program will not violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner of the Affiliate Trademarks and have the power to grant to EXNP 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 you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity.
- You are 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 your entrance into this Agreement
- There is no pending or threatened claim, action, or proceeding against you, or any affiliate of yours with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- During the Term, you will not include in your Affiliate Areacontent that is, in our opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of our Terms and Conditions or Acceptable Use Policy.
- You are at least eighteen (21) years of age.
- 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.
- Limitation of Liability
WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
You hereby agree to indemnify and hold harmless EXNP and its 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”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your Affiliate Site, including, without limitation, its development, operation, maintenance and content therein not attributable to us.
Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, EXNP and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
- Independent Investigation
You understand that we may at any time (directly or indirectly) solicit EXNP relationships on terms that may differ from those contained in this Agreement. We may also solicit relationships with entities that operate websites that are similar to or compete with your Affiliate Area. You have independently evaluated the desirability of participating in the EXNP Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement
- Final Provisions
- Any dispute between the parties, including but not limited to with respect to this Agreement, is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
- If any provision of this Agreement is held invalid or unenforceable for any reason by a court of competent jurisdiction, the offending provision will be severed but the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
- You and EXNP are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 Affiliate Site or otherwise, that contradicts anything in this section.
- Any delay or non-performance of any provision of this Agreement caused by conditions beyond the reasonable control of either party will not constitute a breach of this Agreement, provided that such party has taken reasonable measures to notify the other party of the delay and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics.
- The parties hereto declare that it is their wish that this Agreement and the documents and notices related thereto be in English only. Les parties aux présentes déclarent qu’elles ont exigé que la présente convention, ainsi que les documents et avis qui s’y rattachent, soit rédigés en anglais seulement.
This Agreement, contains the entire understanding between EXNP and the Affiliate with respect to the matters contemplated herein, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written.