Updated 2022/01/06 22:37:00 EST
THIS AFFILIATE PROGRAM AGREEMENT (the “Agreement”) sets forth the terms and conditions of participation in the Affiliate Program of Strikingly Inc., a Delaware corporation (together with its affiliated companies, “Strikingly” or the “Company”). A participant in the Strikingly Affiliate Program (the “Program”) is referred to as “Affiliate” or “You.”
WHEREAS, Affiliate desires to earn commissions known as Referral Fees (as defined below),
WHEREAS, Strikingly desires to pay such Referral Fees as commissions for referring new users who sign up to become Premium Subscribers (as defined below) through a Qualified Purchase (as defined below), and
WHEREAS, Strikingly will pay Referral Fees to an Affiliate for Qualified Purchases ascribed to that Affiliate pursuant to the terms and conditions of Agreement
NOW, THEREFORE, the parties agree as follows.
This Agreement contains the terms and conditions that apply to Your participation in the Strikingly Affiliate Program (the “Program” or “Affiliate Program”). Carefully read these terms and conditions, which represent a legally binding agreement between You and Strikingly. You must agree and accept the terms of this agreement to become a Strikingly Affiliate.
A. Agreeing to Negotiate or Arbitrate
THIS AGREEMENT CONTAINS AN AGREEMENT TO NEGOTIATE OR ARBITRATE CLAIMS. PLEASE READ SECTION XIII WITH SPECIAL CARE—IT AFFECTS YOUR LEGAL RIGHTS AND HAS A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU HAVE AGAINST STRIKINGLY MAY BE RESOLVED.
B. Accepting this Agreement
By clicking the “I agree” box in the application, You agree to sign up to be an affiliate in the Affiliate Program and certify that (a) You have read this Agreement and understand all of its content; (b) You agree to be bound by all terms and conditions of this Agreement, including without limitation, all documents, policies and procedures incorporated herein by reference and any possible future amendment thereof or additions thereto; and (c) You have no conflict or other restriction in entering or performing this Agreement or any part thereof, including receipt of all the applicable approvals required under the applicable law for the performance of this agreement by You.
C. Complying with this Agreement
Violation of any of the terms of this Agreement or any other document incorporated into this Agreement by reference will result in the immediate termination of Your participation in the program, without any need to inform You in writing, and forfeiture of any outstanding payments earned during the violation. You agree to participate in the program at Your own risk and expense.
“Strikingly Site” means any websites that are owned, operated, managed, and controlled by Strikingly.
“Strikingly Marks” means the name Strikingly and all its variations including Striking.ly plus any misspellings or typos that could reasonably be confused with Strikingly.
“Application” means a form provided by Strikingly that any prospective Applicant must fill out correctly and completely in order to become an Affiliate.
“Applicant” means a prospective Affiliate who completed the Application.
“Admitted” means that the Applicant has become an Affiliate pursuant to the terms of this Agreement.
“Affiliate Link” means a specific URL that contains Your Affiliate ID or username. Strikingly uses the Affiliate Link to record who sent traffic to a Strikingly Site by the link that brought that traffic to the Strikingly Site.
“Affiliate Site” means any website or URL owned, operated, or controlled by Affiliate.
“Affiliate Activities” means any web-based activity that can be attributed to Affiliate, such as Facebook posts, Tweets, blog posts, etc.
“Affiliate Dashboard” means a web page on the Strikingly Site that contains information particular to a specific Affiliate.
“Affiliation Term” means the period of time during which this Agreement is in force.
“Restricted Content” means any Affiliate Site or Affiliate Activities containing material or activities related to illegal, offensive, abusive, infringing content, or which incorporate images or content that is, in any way, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, including without limitation: sites or activities that promote violence; sites or activities promoting gambling; sites or activities promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; sites or activities promoting illegal activities or incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights of any third party or of Strikingly; or sites or activities directed towards children under 13 years of age.
“Last Click” means that a Visitor navigates to a Strikingly Site for the last time via an Affiliate Link before registering for an account on Strikingly, as determined by any Tracking Cookies that Visitor has.
“Visitor” means a web user who navigates to a Strikingly Site.
“Tracking Cookie” means a cookie placed on a Visitor’s browser that persists for one hundred eighty (180) days and that credits the Affiliate who provided the Affiliate Link resulting in Visitor’s Last Click to a Strikingly Site.
“Referred User” means a Visitor who navigated to a Strikingly Site through an Affiliate Link.
“Premium Subscriber” means any unique person that registers, subscribes, pays for, and keeps a paid Strikingly subscription account for a subscribed duration.
“Qualified Purchase” means a subscription to become a Premium Subscriber that was purchased after a Visitor clicked an Affiliate Link (thus becoming a Referred user) and where that Visitor navigates to a Strikingly Site for the last time via that Affiliate Link before registering for an account on Strikingly (also known as Last Click) and where that referral is confirmed by means of a Tracking Cookie and any other means required by this Agreement.
“Trial Period” means the period of time during which a Premium Subscriber can cancel and receive a full refund.
“Referral Fee” means the amount that an Affiliate is entitled to receive because that Affiliate provided an Affiliate Link which resulted in a Qualified Purchase, pursuant to the terms of this Agreement.
“Validation Period” means the period of time after the end of the Trial Period during which Strikingly validates that the Qualified Purchase shall result in a Referral Fee.
“Inappropriate Activity” means any activity that is prohibited by this Agreement and/or can result in the denial of a Referral Fee.
“Payment Agent” means a third-party service provider, established by Strikingly, with whom Affiliate must have an account in order to receive any payments from Strikingly. In general, the Payment Agent will be PayPal, although the Company may change this Payment Agent from time to time by notice to the Affiliate.
“Payout” means the disbursement of funds from Strikingly to an Affiliate via the Payment Agent.
“Minimum Payment Amount” means an amount set by Strikingly and displayed in the Dashboard that an Affiliate must have currently accrued in Referral Fees in order to request a Payout.
“Monthly Report” means a monthly report, available via the Dashboard, generated by Strikingly that summarizes the sales activity of each Affiliate as to how many Qualified Purchases were attributed to that Affiliate and how much Referral Fees that affiliate has accrued. which will be available to Affiliate via the Dashboard.
“Non-Active Affiliate” means an Affiliate who has not referred a Premium Subscriber that made a Qualified Purchase within the past year (365 days).
“Reactivation” means the process by which a Non-Active Affiliate can become an active Affiliate.
“Marketing Laws” means rules and regulations that pertain to promotion of goods and services, which include but are not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”), the Children’s Online Privacy Protection Act of 1998 (“COPPA”); and Privacy Laws.
“Privacy Laws” include laws which regard persons’ expectations of and rights to privacy, including but not limited to the European Union General Data Protection Regulation 2016/679 (“GDPR”), the California Consumer Privacy Act (“CCPA”), the Virginia Consumer Data Protection Act (“CDPA”), the Washington Privacy Act (“WaPA”), and similar laws regulating protection of digital information.
“Confidential Information” has the means ascribed to it by Section XV of this Agreement.
“Ad” means a notice or announcement to be shared in a public medium that promotes a Strikingly product or service.
“License” means a non-exclusive, non-transferable, limited license to use the Strikingly Marks contained in the Ads provided to Affiliate by Strikingly for the sole purpose of this Agreement.
“Spam” means unsolicited bulk emails and similar vexatious messages.
“Opt-Out Request” means a request to receive no further messages from a given source, such as a request not to receive any more emails from an Affiliate.
“Laws” means Affiliate shall not violate any applicable laws, rules, regulations, ordinances, codes, orders, and decrees of any governmental authority.
III. Company’s Responsibilities to Affiliate
The Company’s sole responsibility to the Affiliate under this Agreement is to pay the appropriate Referral Fees to an Affiliate who is in good standing and is rightfully credited with a Qualified Purchase according to the terms and conditions in this Agreement.
Affiliates are entitled to receive Payouts from Strikingly in accordance with this section. In general, Strikingly provides each Affiliate with an Affiliate Link, which the Affiliate presents to Visitors in order that they click the link and navigate to a Strikingly Site to sign up for services there. If a Visitor last accesses the Strikingly Site via an Affiliate Link before registering for an account on Strikingly, the Affiliate associated with that link is credited with a Last Click, which is recorded by a cookie given to the Visitor that resides on the Visitor’s browser for up to 180 days. If that Visitor becomes a Premium Subscriber while the cookie is active, that constitutes a Qualified Purchase and makes the associated Affiliate eligible for a Referral Fee, pursuant to the terms and conditions of this Agreement.
A. Delayed Credit for First Qualified Purchase
The first Qualified Purchase that is credited to an Affiliate does not immediately count toward that Affiliate’s Referral Fees. Since Affiliates often generate their first would-be referral by self-referring (which is prohibited by the terms of this Agreement), Strikingly does not award any Referral Fees for the first Qualified Purchase for any Affiliate, whether they are in fact prohibited self-referrals or not. No Referral Fees will be attributed to an Affiliate who has only referred one (1) Premium Subscriber. To receive any Payouts or Referral Fees, each Affiliate must refer at least two (2) Premium Subscribers.
Upon referral of the second Premium Subscriber who makes a Qualified Purchase, Strikingly will review the Affiliate’s referrals and credit any and all subscriptions referred by affiliate pursuant to this Agreement.
B. Qualified Purchases
When an Affiliate is credited with a Qualified Purchase, that credit will appear on the Affiliate’s Dashboard. Not every Qualified Purchase results in a Referral Fee. Strikingly gives new Premium Subscribers a Trial Period, a period during which they may cancel their subscription contracts without penalty. Affiliates who refer new Premium Subscribers that make Qualified Purchases only earn a Referral Fee if the new Premium Subscribers do not cancel during the trial period.
C. Validation Period
After the Premium Subscriber’s Trial Period ends, a Validation Period runs during which Strikingly ensures that the Premium Subscriber does not dispute or cancel their account shortly after signing up. During the Validation Period, Strikingly verifies that each new Premium Subscriber sign up is valid and not fraudulent before approving payment of the Referral Fee.
If the Premium User disputes any payment during the Validation Period, then the associated Referral Fee will be cancelled, regardless of the outcome of said dispute.
The length of the Validation Period may vary depending on the subscription term of the Premium Subscriber’s plan. More information about the duration of the various Validation Periods is available on Your Dashboard at http://www.strikingly.com/s/affiliate on the Strikingly Website.
During the Validation Period, Strikingly may investigate each Qualified Purchase for any Inappropriate Activity. Any breach of this Agreement by the Affiliate is grounds for Strikingly’s denial of payment of Referral Fees.
If Strikingly determines, in its sole discretion, that there may be some other basis for denial, then Strikingly will delay payment of the Referral Fee until Strikingly determines that the referral is valid and the corresponding fee should be approved, or that there was some Inappropriate Activity and/or that the Referral Fee should be denied. In the event that Strikingly determines that there may be some basis for denial, or if Strikingly has any concerns whether the Referral Free should be approved, then Strikingly may ask for additional information regarding the transaction in question. Failure to provide this information promptly will cause any payment to be further delayed or, if the information is not timely provided, to be cancelled.
Without excluding any of the other basis for denial, and with the caveat that Strikingly does not have to provide or state a basis for denial when denying Referral Fees, the following list is provided as a shorthand reminder to Affiliates of the types of conduct considered to be the sort of Inappropriate Activity that will generally result in the denial of Referral Fees:
- Fraud or Other Misconduct
- False or Abusive Advertising
- Tax Non-Compliance
- Double Attributions
- Cookie Stuffing
- Cancellations During the Trial or Validation Period
- Breach of This Agreement
Additionally, if an Affiliate refers an unusually large number or percentage of Premium Subscribers who dispute payments, it will be grounds for Strikingly to terminate this Agreement with the Affiliate for cause.
Only after Strikingly has verified each Qualified Purchase will Referral Fees for such Qualified Purchase be credited in the Affiliate Dashboard.
D. Payout of Referral Fees
Strikingly pays Affiliate’s Referral Fees upon request by the Affiliate only when Affiliate is in good standing and has the Minimum Payment Amount accrued in Referral Fees. The current Minimum Payment Amount is displayed in the Affiliate Dashboard.
(For example, if the Minimum Payment Amount is currently $25, and You have earned only $22 in Referral Fees, then You are not eligible to request a payment; on the other hand, if you have earned $28 in Referral Fees, then you are able to request to be paid $25 to $28.)
Strikingly will pay Your Referral Fee via the Payment Agent. In order to receive Your Referral Fee, You must have a valid account with the Payment Agent that is properly set up and in good standing.
If you have accrued the Minimum Payment Amount in your total Referral Fees, then you may request a Payout via the Affiliate Dashboard.
The rates of the Referral Fees for a Qualified Purchase depend on the type of plan that the referred Premium Subscriber selects and on any promotions that Strikingly is running at that time. Due to the dynamic nature of rates and rate changes, please visit Your personalized Affiliate Dashboard on the Strikingly website to see Your current rates.
Strikingly will pay the accrued Referral Fees to the Affiliate within thirty (30) days of receiving a valid request for a Payout.
E. Conditions of Payment
All payments of the Referral Fees will be due and payable in United States Dollars only, except as otherwise determined by Strikingly in its sole discretion. Payment will be made against a valid invoice issued by Affiliate, through its Payment Agent or any other method chosen by Strikingly, in its sole discretion. Affiliate is responsible to provide Strikingly with full and accurate details as required for it to remit the Referral Fees, and shall be solely liable for any delay in payment resulting from its failure to duly and timely provide Strikingly with such details.
In the event of any activity deemed suspicious by Strikingly at its sole determination, Strikingly may delay payment of the Referral Fees to Affiliate for up to sixty (60) days to verify the relevant transactions. In the event that Strikingly determines the activity to constitute fraud, it shall recalculate or withhold the Referral Fees accordingly and in its sole discretion. It is hereby clarified that in any event that Strikingly shall determine that Affiliate has acted in violation of this Agreement or is involved, directly or indirectly, in any fraudulent, deceptive, manipulative or otherwise illegal activity connected to Strikingly, including without limitation to the Strikingly Site, Affiliate Links and/or Users, Strikingly shall have the right, in addition to any other right or remedy available to it under this Agreement or applicable law, to render the Affiliate Links assigned to such Affiliate inoperative, and immediately block Affiliate access to the Program, with no compensation to Affiliate. Affiliate hereby irrevocably waives any claim or demand against Strikingly, its directors, officers, shareholders or employees in respect of such action taken by Strikingly.
The Affiliate is responsible for the payment of all taxes applicable to the conduct of Affiliate’s business. The payment to the Affiliate shall be subject to any withholding tax obligations applicable by law. It is agreed that the Referral Fees are inclusive of any and all taxes applicable by any law including VAT (if applicable).
If, for any reason, a Referral Fee is paid prior to discovering that fee should have been denied for one of the reasons provided above, then Strikingly will deduct an amount equal to the improperly paid fee from any future payments of fees to that Affiliate.
H. Clawbacks of Referral Fees
Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based compensation, or any other compensation, paid to the Affiliate pursuant to this Agreement or any other agreement or arrangement with the Company or any related party, which is subject to recovery under any law, or government regulation, will be subject to such deductions and clawback as may be required to be made pursuant to such law, government regulation (or any policy adopted by the Company pursuant to any such law, government regulation).
I. Changes to Referral Fees
Strikingly may change the pricing, policies and operating procedures at any time consistent with applicable laws. For example, Strikingly will determine the prices to be charged for services in accordance with Strikingly’s own pricing policies. In the event that such changes affect items that Affiliate already has presented on the Affiliate Site, the Ads or any other information provided by Affiliate to third parties in respect with this Agreement and its participation in the Program, Affiliate will be required to track such changes and reflect them in the Affiliate’s Site or in any other relevant marketing means.
J. Non-Active Affiliates
Non-Active Affiliates are not entitled to any fees or payments for recurring Referral Fees that would otherwise have accrued while being a Non-Active Affiliate.
(For example, if You referred a new user who signed up as a Premium Subscriber for Strikingly’s yearly plan on January 1, 2018, and then You took no further action as an Affiliate which led to Qualified Purchases, You will not be entitled to receive any Referral Fee if the new user you referred renews his annual plan for another year on January 1, 2019, because you will be a Non-Active Affiliate, and Non-Active Affiliates are not eligible to earn Referral Fees on returning customers.)
1. No Payouts for Non-Active Affiliates
Non-Active Affiliates may not request Payouts. If you are a Non-Active Affiliate and if you believe that you have earned Referral Fees for which you would otherwise be entitled to payment, you may either become an active Affiliate via Reactivation, or you may contact Strikingly directly and ask us to review your case and to make an expectation where we might, without thereby waiving any of our rights under this Agreement, may agree to make your fee payment despite your non-active status.
Non-Active Affiliates may be Reactivated by referring new Premium Subscribers who make a Qualified Purchase of Strikingly Services. Upon Reactivation, the Affiliate will once again be able to request payments (subject to the conditions listed above) and will once again receive Referral Fees for new subscribers and for any renewals of Premium Subscribers that Affiliate is credited for signing up after the Reactivation. To be clear, once an Affiliate becomes a Non-Active Affiliate, that Affiliate will not be entitled to receive any recurring Referral Fee fees for renewals of accounts that signed up prior to the Affiliate becoming a Non-Active Affiliate. All recurring Referral Fees that have not yet come due for renewals become forever null and void once an Affiliate becomes a Non-Active Affiliate.
V. Affiliate Admission
This Section describes how You may be Admitted to and remain in the Program. No one shall be deemed an Affiliate unless and until the admission processes described in this section are completed.
A. Applicant and Application
To begin the enrollment process, Applicant must submit an Application. Applicant must provide full, true and accurate information in the Application. Strikingly will evaluate the Application in good faith and may notify Applicant of acceptance or rejection within approximately thirty (30) business days. Unless Applicant received a clear written notice from Strikingly confirming Applicant’s admission in the Program, Applicant shall not be deemed to be part of the Program.
Strikingly may reject any Application if Strikingly determines, in Strikingly’s sole discretion, that the Affiliate Site or any Affiliate Activities unsuitable for the Program for any reason. If Strikingly accepts Affiliate Application and thereafter the Affiliate Site or activity is determined (in Strikingly’s sole discretion) to be unsuitable for the Program, Strikingly may terminate the Affiliate’s participation in the Program at any time.
Unsuitable Affiliate Sites or activities may include, but not be limited to, the Site Restrictions described above.
Strikingly shall not be required to provide any explanation to its rejection of any prospective Affiliate.
C. Age Restriction
You must be at least eighteen (18) years of age to join the Program. By submitting an Affiliate Application, You represent and warrant that You are at least eighteen (18) years of age and may legally agree to this agreement. The Company assumes no responsibility or liability for Your misrepresentation of Your age.
D. Identity Verification
The Company may require You to verify Your identity as a condition of Your enrollment into the Program. By submitting an Application, You represent and warrant that any identity information You provide is true, correct, and complete. The Company assumes no responsibility or liability for Your misrepresentation of Your identity.
Rejection of an Application by Strikingly shall not derogate from Affiliate’s right to reapply to the Program at any other time thereafter provided that the Affiliate complies with the provisions of this Agreement.
Applicant shall be deemed Admitted and therefore be an Affiliate only when and if the Company has pronounced this in writing to the Applicant.
VI. Affiliate Responsibilities (Affirmative Covenants)
Once Affiliate is admitted, for Affiliate to continue to comply with the requirements of the Program, Affiliate shall fulfill the responsibilities to Company listed in this section. Any failure to fulfill these responsibilities may constitute a breach of this Agreement and may be grounds for dismissal from the Program and termination of this Agreement.
A. Use Affiliate Links Properly
To permit accurate tracking, reporting, and Referral Fee accrual, Strikingly will provide Affiliate with a specific Affiliate Link, which is a unique hyperlink that identifies who directed a Visitor to the Strikingly website. Affiliate must ensure that each of the links between its Affiliate Site and Strikingly Site properly utilize the Affiliate Links provided to Affiliate. Affiliate may use Affiliate Links within Emails that Affiliate sends to registered users of the Affiliate Site.
1. Do Not Modify Affiliate Links
Affiliate is not authorized to alter, modify or change any of the Affiliate Links. Affiliate will only earn payments in accordance with the Affiliate Dashboard, which is the Affiliate’s user interface on the Strikingly Site where referrals, payments, and other key performance indicators and data about Affiliate activity are presented. Strikingly will not be held liable to the Affiliate with respect to any failure by Affiliate to use such Affiliate Links. Strikingly will not be responsible for errors which may occur in the tracking of transactions if the Affiliate has made or caused any such modification to the Affiliate Link.
2. No Other Uses of Affiliate Links
For the avoidance of doubt, Affiliate will use the Affiliate Link only for the purposes of the Program. Any other use of the Affiliate Link will be considered void. Improper use of an Affiliate Link constitutes a material and total breach of this Agreement.
B. Use Strikingly Marks Properly
From time to time, Strikingly may provide to Affiliates an Ad that contains Strikingly Mark(s). When this occurs, Strikingly grants to Affiliate a License to use these Strikingly Mark(s) for the sole purpose of obtaining Qualified Purchasers pursuant to this Agreement. Affiliate may not use any of the Strikingly Marks in any manner other than as contained in the Ads. Furthermore, Affiliate may not modify any of the Ads in any way, whatsoever unless approved in advance and in writing by Strikingly. The License shall expire upon the expiration or termination of the Affiliation Term.
1. Use Ads in Good Taste
Affiliate shall display the Ads in good taste, adjacent to any with the first or most prominent use of such Ads in piece of advertising means, in which such Ads appear, subject to other requirements as Strikingly may from time to time impose and provide to Affiliate, including Strikingly trademark guidelines. Affiliate may not use the Ads and the Strikingly Marks contained therewith in a manner that, in Strikingly’s sole discretion, is disparaging or otherwise portrays Strikingly in a negative light. Affiliate shall have no other right, title or interest in or to the Ads and Strikingly Marks contained therewith other than as specified in the limited License granted herein.
2. Treat Strikingly as Owner of Strikingly Marks
As between Affiliate and Strikingly, Strikingly shall own all right, title and interest, including all intellectual property rights, in and to the Strikingly Site, the Program and Strikingly Marks. Strikingly may at any time, without prior notice, require the Affiliate to remove or modify the Ads, or dynamically replace the Strikingly creative or text with creative or text suitable to Strikingly in Strikingly’s sole discretion.
3. Disclose Affiliate Participation
Affiliate shall include in its Affiliate Site, in its Affiliate Emails, and in any other means by which Affiliate is promoting Strikingly, a disclosure conveying that Affiliate participates in Affiliation programs which may reward Affiliate with monetary compensation in connection with referral of Visitors to advertisers and other third parties. Such disclosure must be in a prominent and easily accessible place and shall be in compliance with all applicable laws, rules and regulations.
VII. Affiliate Prohibitions (Negative Covenants)
Once accepted to the Program, Affiliate hereby agrees not to do anything or take any action that may harm Strikingly. In particular, Affiliates are prohibited from taking inappropriate actions listed in this section; however, this is not meant to be an exclusive list, and other actions which are not specifically contemplated here but which are harmful to the Company or its interests are likewise prohibited.
A. No Violation of Laws
While it is important for Affiliates to comply with all laws, this Agreement cannot possibly detail all the legal obligations that Affiliates must obey. However, the Company identified the following Marketing Laws as especially important for Affiliates to understand and obey, especially Privacy Laws.
B. Market Responsibly and Compliantly
If Affiliate sends, or causes to be sent, any electronic messages in connection with this Agreement and/or the Affiliate Program, then Affiliate agrees, acknowledges, represents and warrants that all such messages shall be in full-compliance with all applicable laws and regulations regarding the use of electronic messages, including Marketing Laws, Privacy Laws, and any other similar laws pronounced by any authority in a jurisdiction that may assert authority over that message.
C. DO NOT SPAM
Strikingly expressly forbids Affiliates from sending Spam. You cannot use Spam when You are promoting Strikingly. Prohibited SPAM includes, but is not limited to:
- sending, initiating or procuring the sending of an Email to any person who has either not explicitly requested to receive such messages (or has explicitly requested to receive no further Emails) specifically from Affiliate, including without limitation for the purposes of sending unsolicited bulk email, executing any “mass mailings” or “email blasts,” or for the purpose of spamming any public forum, including without limitation, any blog, message board, classified listings, auction sites, altnet, newsnet, newsgroups, or similar services;
- employing any false or deceptive information regarding Affiliate’s identity, or regarding the intent, subject, or origin of the message or failing to include accurate information regarding Affiliate’s identity, and the intent, subject, and origin of the Email;
- exploiting documented or undocumented security holes on any client or server machine;
- failing to (i) include clear, valid, and conspicuously displayed “From” and “Subject” lines in the Email, (ii) include a functioning return address (or hyperlink) in the Email that enables the recipient to submit an Opt-Out Request for no less than thirty (30) days from the date the Email was sent; or (iii) honor any Opt-Out Request within ten (10) days of receipt of such Opt-out request by Affiliate;
- obtaining Email addresses via automated means or sending any Email to any address which was obtained via automated means, including via the automated combination of names, letters, or numbers, dictionary attacks, or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy;
- employing any fraudulent, deceptive, false or misleading information in connection with the Emails; or
- sending any commercial marketing Email or promotion to, or collecting any personally identifiable information from, any person who is under eighteen (18) years of age.
These are just examples of Spam, not an exhaustive list. Use judgment in sending electronic messages to avoid sending anything that could be labeled as Spam.
D. No Phone or Text Solicitation
You may not solicit users to Strikingly services by calling people on the phone or sending text messages to cell phone numbers, regardless of whether You use an auto-dialer. Phone and text solicitations are expressly forbidden.
E. No Privacy Violations
Affiliates must comply with all Privacy Laws when handling protected information. Affiliates are independently responsible for ensuring their own compliance with all laws, including Privacy Laws. You agree to indemnify, defend and hold Strikingly harmless for any of Your violations or alleged violations of any Privacy Laws.
F. No Usurpation of Strikingly Marks
An Affiliate may not pretend that it is Strikingly or otherwise misdirect traffic to any Affiliate Site. This includes a prohibition of the following activities:
- Using, procuring, bidding on, or otherwise arranging for an advertisement displayed on a search engine’s results page after a user performs a keyword search which uses or includes any of the Strikingly Marks;
- Purchasing any domain name that includes any Strikingly Marks; and
- Accumulating, amassing, squatting, hoarding, stockpiling, investing in, selling, laundering, or otherwise obtaining or holding any domains that might appear to be Strikingly Marks or to otherwise belong to Strikingly.
In general, you may not do anything that could cause confusion between You and the Company.
G. Other Prohibited Activity
While it is impossible to discuss every prohibited activity, and while doing so is not necessary because Affiliates owe Strikingly a duty of good faith and fair dealing that prohibits any wrongful conduct that is not in the spirit of this agreement, the following list of prohibited activities are examples of behavior that is de facto and presumptively wrongful. These behaviors and all similar and otherwise wrongful behaviors are prohibited by this Agreement and will constitute a breach of this Agreement and be grounds for termination from this Program.
No Purchased Links. Affiliate may not purchase direct ads that contain an Affiliate Link or any link that directly leads to Strikingly Site. Affiliate may not purchase direct ads that contain any Strikingly Marks. Affiliate Links may be placed only on websites or content that an Affiliate owns or creates.
No Kickbacks. Affiliate may not offer any person or entity any payments or incentives (like rebates, cashbacks, "paid to click" advertising or discounts) for using the Affiliate Link or converting a free Strikingly account into a Premium Package.
No Auto-Filling. Affiliate may not record, redirect, read, or fill in on behalf of any Visitor, Referred User, or Premium Subscriber the contents of any electronic form or other material submitted to Strikingly by any such person. Affiliate may not register any such person to the Strikingly Site or to any Premium Package, on behalf of such person.
No Pop-Ups. Affiliate shall not post Affiliate Link or other content promoting the Strikingly Site within any pop-up or pop-under windows.
No iFraming or Cookie Stuffing. Affiliate shall not use cookie stuffing techniques that set the Affiliate tracking cookie without the Referred User's knowledge (e.g. iframing). Affiliate may not steal users’ information, hacking users’ system, or “cookie stuff” (placing a cookie on a third-party user’s browser without actually encouraging that user to visit the target website in order to earn Referral Fees from the target website) users.
No False Claims. Affiliate is prohibited from making inaccurate, deceptive or otherwise misleading claims about Strikingly and the Strikingly services.
No Deceptive Practices. Affiliate shall not engage in any practice that generates traffic to the Affiliate Link through illegal, false, deceptive, or bad faith practices, or to engage in any effort to deceive or defraud the Company or potential new users, regardless of whether or not such practice actually causes harm to Strikingly.
No Sowing Confusion. Affiliate is prohibited from (i) taking any action that may cause Affiliate Site's Visitors to be confused between the Affiliate’s Site and Strikingly or the Strikingly Site; or (ii) misrepresenting the relationship between Affiliate and Strikingly.
No Claim of Strikingly’s Endorsement. Affiliate may not claim that Strikingly endorses, supports and/or sponsors the Affiliate Site.
No Toolbar Apps. Affiliate shall not use any Ads or Affiliate Link in connection with any client-side software application (e.g. toolbars, extensions, or any other applications that are downloaded or installed by any Affiliate Site and/or Strikingly Site Visitors) on any device.
No Adult Content. Affiliate shall not associate our product with sexually explicit materials, violence, firearms or weapons, illegal activities, fake or counterfeit items, material promoting gambling or betting, material promoting discrimination based on race, sex, religion, nationality, disability, or sexual orientation in any way, or any other material infringing upon another’s’ intellectual property rights. Affiliate shall not promote Strikingly with offensive, abusive, defamatory, or otherwise objectionable materials.
No IP Violations. Affiliate shall not use copyrighted or trademarked content from others without acquiring or paying for consent to use that intellectual property.
No Fake IDs. Affiliate may not market by faking another’s identity or falsely representing other people or entities’ identities, including falsely representing Strikingly.
No Discounts Sites. Affiliate may not promote or advertise Strikingly or its affiliates on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, nor display any offer code on a public-facing page or through the use of a "click to display" offer code.
No Pay-Per-Click Advertising. Affiliate shall not use its Affiliate Link directly in any pay-per-click advertising.
No Fraudulent Traffic. Affiliate shall not use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links.
No Unauthorized Discounts. Affiliate shall not promote discounts for Strikingly products that have not been expressly authorized by the Company for Affiliates to circulate or that have expired or have been discontinued by Strikingly.
No Masking. Affiliate shall not mask its referral sites or use deceptive redirecting links.
No Sub-Affiliates. Affiliate may not create or participate in any third-party network or sub-affiliate network without the express written consent of Strikingly; Affiliate must promote Strikingly personally and not through any other person or party.
VIII. Affiliate Representations and Warranties
Representations are assurances that certain facts are true as of the time of signing an agreement; warranties are assurances that things will continue to be true after its signing. When You become an Affiliate, You represent and warrant as follows:
A. Legal Capacity
Affiliate hereby warrants and represents that Affiliate is over the age of eighteen (18) and in all respects Affiliate is qualified, competent, and has the legal capacity to enter into this Agreement.
B. Complete Information
Affiliate will provide accurate and complete details regarding Affiliate’s identity and personal details as requested by the Company.
C. Responsibility for Yourself and Your Property
Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate Site and Affiliate’s activities and for all materials related thereto. Affiliate will indemnify and hold Strikingly harmless from all claims, damages and expenses incurred by Strikingly due to any third-party claims relating to the development, operation, maintenance, manner and contents of the Affiliate’s Site or activities.
D. Single Account
Each Affiliate may only create and maintain one Affiliate Account. If an Affiliate is a corporation, for example, all the agents of that corporation should use the corporation’s Affiliate Account.
E. Responsibility for Your Agents
In the event that any entity, including any employee, agent, subcontractor or representative of Affiliate participates in the Program or otherwise acts on behalf of Affiliate with respect thereto, Affiliate shall ensure that such person fully complies with the terms of this Agreement, and Affiliate shall be fully liable for any act or omission of such person.
F. No Infringement
Affiliate hereby represents and warrants to Strikingly that materials posted on Affiliate’s Site do not violate or infringe upon the rights of any third party, and that any materials posted on Affiliate’s Site are not libelous or otherwise illegal nor may cause Affiliate to violate any of its representations and obligations under this Agreement. Strikingly disclaims all liability for all such matters.
G. Compliance with Law
As a condition to Affiliate’s participation in the Program, Affiliate hereby represents and warrants that during the Term of this Agreement, Affiliate will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority as applicable to Affiliate, whether those laws are now in effect or later come into effect during the Term of this Agreement.
Affiliate will indemnify, defend and hold Strikingly, its subsidiaries, officers, employees, agents, and third parties harmless from and against any claims, liabilities, losses, costs, damages or expenses (including attorney’s fees) arising, directly or indirectly, in connection with Affiliate’s operations or Affiliate’s Site or out of any disputes between Affiliate and any other party relating to this agreement, the participation in this Program, or the site(s) or the services provided by Strikingly.
I. Duly Executed
This Agreement has been duly and validly executed and delivered by Affiliate (by acceptance of its terms) and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with the terms contained herein.
The execution, delivery, and the performance by Affiliate of duties pursuant to this Agreement will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: (i) any provision of law, rule, or regulation to the extent applicable; (ii) any order, judgment, or decree applicable or binding upon Affiliate’s assets or properties; (iii) any provision of Affiliate’s by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate or binding upon Affiliates assets or properties.
J. No Consent Required
No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by Affiliate in connection with the execution, delivery, and performance of this Agreement or the taking by Affiliate of any other action hereunder.
K. No Actions
To the best of Affiliate’s knowledge, there is no pending threatened claim, action, or proceeding against Affiliate, or any Affiliate thereof, with respect to the execution, delivery, or consummation of this Agreement, or with respect to any intellectual property infringement, and, to the best of Your knowledge, there is no basis for any such claim, action or proceeding.
Affiliate understands that Strikingly may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with the Affiliate Site.
Strikingly has the right, in Strikingly’s sole discretion, to monitor Affiliate Site at any time and from time to time to determine if the Affiliate is in compliance with the terms of this Agreement. Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by Strikingly. If an unauthorized deviation is detected, Strikingly may demand that You stop the misconduct and breaches immediately and take down any content resulting from the misconduct.
You have no obligation to provide Strikingly with ideas, suggestions, or proposals. However, if You submit such things to Strikingly, then You grant Strikingly a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, or publicly perform what you provide in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
O. Independent Investigation
Strikingly encourages Affiliate to consult with legal and/or financial and/or tax and/or accounting advisors prior to entering the Program. Affiliate agrees and acknowledges that Affiliate has had ample opportunities to review this agreement thoroughly and to seek independent legal advice in investigation of the terms of this agreement. Affiliate acknowledges and agrees that nothing herein and no statement by Strikingly or any of its employees or other persons associated with Strikingly has prevented Affiliate in any way from seeking such advice before entering into this Agreement. Affiliate has independently evaluated the desirability of participating in the Program and Affiliate is not relying on any representations or statements other than as set forth in this Agreement.
You have an obligation to notify the Company in writing of any violations of Your responsibilities, any changes to Your representations or warranties, or any other event that may cause liability, harm, or damage to the Company.
Q. READ THIS CAREFULLY
AFFILIATE HAS READ THIS AGREEMENT CAREFULLY, UNDERSTANDS IT, HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL ABOUT IT, AND ACCEPTS THE OBLIGATIONS IT CREATES. AFFILIATE HAS ESPECIALLY TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY, INDEMNIFICATION, ARBITRATION, AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO AFFILIATE TO INDUCE AFFILIATE TO ACCEPT THIS AGREEMENT. AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.
IX. Strikingly’s Disclaimers
Except as expressly set forth in this agreement, it is understood and agreed that Strikingly is not making and has not made at any time any representations or warranties.
A. No Warranties
Strikingly makes no express or implied warranties or representations with respect to the agreement, the program and the information to be delivered pursuant hereto. Including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, trade usage or fitness for a particular purpose.
B. No Representations Regarding Information
Strikingly makes no representation as to any of the information found on Strikingly’s site. The materials on Strikingly’s site and for the affiliated sites are provided “as is” without any express or implied warranty of any kind. Strikingly does not warrant the accuracy or completeness of the information, text, graphics, links or other items contained on the Strikingly Sites. Any of the information offered on a Strikingly Site may change at any time without notice.
C. No Liability for Damage
Should the materials or services provided prove defective and/or cause any damage to equipment or any loss or inconvenience to the Affiliate or anyone claiming through the Affiliate, the Affiliate assumes the entire cost and responsibility for them.
D. No Indemnify
Notwithstanding anything herein or in any other agreement to the contrary, Strikingly shall have no obligation to indemnify, defend, or hold harmless the Affiliate in connection with any matter related to or arising out of the subject matter of this Agreement.
E. No Exclusive Dealing
This Agreement does not obligate Strikingly or any of its related parties to deal exclusively with Affiliate or any of its related parties. Strikingly maintains the right to compete with Affiliate and any of Affiliate’s related parties to the extent permissible under applicable law.
F. No Employment Relationship
Affiliate is an independent contractor and not an employee of Strikingly. Affiliates agrees to indemnify and hold harmless Strikingly from any liability that may result from Affiliate claiming to be or acting as if Affiliate is anything other than an independent contractor of Strikingly.
X. Strikingly’s Limitations of Liability
Under no circumstances shall Strikingly, its subsidiaries, officers, directors, employees or suppliers be held liable for any direct or indirect damages and/or losses, to the Affiliate, user, and/or other third party that may arise due to (i) “downtime” and/or availability of Strikingly site or the program, and any losses of any kind that may result due to downtime in the program and/or any other third party’s down time; (ii) any termination of this agreement; (iii) any investments, actual or planned, by affiliate in connection with its participation in the affiliates program.
Notwithstanding anything to the contrary contained in this agreement, Strikingly, its subsidiaries, officers, directors, employees or suppliers will not be liable to Affiliate 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, punitive or exemplary damages (including, without limitation, loss of goodwill or actual or anticipated revenue, profits or lost business), even if Strikingly, its subsidiaries, officers, directors, employees or suppliers have been advised of the possibility of such damages. Our aggregate liability arising in connection with this agreement and the program will not exceed the total fees paid or payable to the Affiliate under this agreement in the twelve (12) months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred.
XI. Modification of this Agreement
Strikingly may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion by providing Affiliate fourteen (14) days prior notice of such modification. Notice of any change by Email, to Affiliate’s address as provided to Strikingly, or the posting on a Strikingly Site of a change notice or a new agreement, is considered sufficient notice to Affiliate of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available Referral Fees, payment procedures and schedules, and Affiliation Program rules.
Notwithstanding the foregoing, the Referral Fees Plan may be altered, modified or changed by Strikingly, from time to time, in its sole and absolute discretion, provided that Strikingly will notify Affiliate of such change of the Referral Fees Plan. Referral Fees earned prior to such change will be paid according to the conditions in effect prior to such changes. Referral Fees earned after such change is in effect will be paid according to the new conditions of the amended Referral Fees Plan’s effective date at which the payment has been made.
If any modification is unacceptable to Affiliate, Affiliate’s sole recourse shall be to terminate this Agreement. Affiliate’s continued participation in the Program following the posting of a change notice or a new agreement on a Strikingly Site will constitute binding acceptance of such change.
XII. Termination of this Agreement
This Agreement will continue in effect until (i) it is terminated by notice of either of the parties, (ii) Affiliate breaches this agreement, (iii) the term of this agreement expires, or (iv) this Agreement is terminated by an act of law or government body.
Upon the termination of the Affiliation Term for any reason, Affiliate shall promptly remove all Affiliate Links, Ads and other Program related content from Affiliate Site or any other communication means used by the Affiliate. Affiliate will immediately cease use of, and remove from Affiliate Site, all links to Strikingly Site, and all of Strikingly Marks, and all other materials provided by or on behalf of Strikingly to the Affiliate pursuant here to or in connection with the Program.
Any terms or provisions of this Agreement that, by their express terms do, or by their nature should survive termination of Affiliation Term, shall continue to be in force despite the termination of the Affiliation Term.
A. Termination at Will
The term of Affiliate’s participation in the Program shall commence upon Strikingly’s acceptance of the Affiliate Application and shall end upon provision of a termination notice by either party in accordance with the provisions of this Section.
Either party may terminate this Agreement as for its own participation in the Program at any time, with or without cause, by giving the other party a ten (10) days prior written notice of termination.
Termination of the Agreement will result in the deactivation or deletion of the Affiliate’s account or its access to the Affiliate account in the Strikingly Site, and the forfeiture and relinquishment of all potential or to-be-paid Referral Fees in the Affiliate’s account. For avoidance of doubt, Strikingly will not pay Referral Fees to any Affiliate after that Affiliate’s termination, even if that Affiliate otherwise accrued Referral Fees that were owed and unpaid. Such fees will be cancelled upon termination of this Agreement.
Except as stated otherwise, upon termination of this Agreement, Affiliate will be entitled to receive Referral Fees for Premium Subscribers accrued during the Affiliation Term.
B. Termination for Cause
While any breach by Affiliate of this agreement is grounds for Strikingly to terminate this Agreement immediately, four (4) circumstances in particular may arise that will result in Strikingly immediately terminating this Affiliate Agreement with You. In the event of a material breach of this Agreement by Affiliate, Strikingly may, at its sole and absolute discretion, terminate the Affiliation Term immediately, without prior notification, and the Affiliate will not be entitled to receive any unpaid Referral Fees, regardless of whether or not such fees accrued prior to such termination.
If an Affiliate attempts any of the methods forbidden in this Agreement or any other methods that could reasonably be construed as fraud, Strikingly will terminate this Affiliate Agreement with regard to the Affiliate who is committing any type of fraud or scam.
If an Affiliate files an unreasonable number of disputes with Strikingly, or if new users referred to Strikingly by an Affiliate tend to file disputes at an unusually high rate, Strikingly will terminate this Affiliate Agreement with regard to the Affiliate who is causing or related to such disputes.
If users referred to by an Affiliate demand refunds or made fraudulent purchases at an unusually high rate, Strikingly will terminate this Affiliate Agreement with regard to the Affiliate who referred such users.
The Company has a zero-tolerance policy against Spam. Any Affiliate who sends Spam will be terminated immediately.
XIII. Dispute Resolution
Affiliate acknowledges and agrees that any disputes between Affiliate and Company shall first be resolved through internal negotiations. The Affiliate must first contact the company to seek a mutually agreeable resolution to any concerns. If that does not result in the Affiliate’s satisfaction, the Affiliate shall enter into mediation regarding the dispute. If mediation does not result in an amicable resolution, then the Affiliate must then bring the claim to arbitration, as more fully set forth below. Affiliate has waived any and all rights to file a lawsuit in a court with regard to any matters set forth in this Affiliate Agreement.
Strikingly aims to ensure that Affiliates are satisfied with their relationship with Strikingly, and we hope to resolve any concerns quickly and amicably. If Affiliate has any concerns about this Agreement, Affiliate should first email firstname.lastname@example.org. The company tries to respond to concerns as promptly as practicable and to resolve them through direct discussions.
If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, Affiliates agrees to endeavor first to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration.
C. Arbitration Procedures
Affiliate further agrees that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be San Francisco, California. The arbitration shall be governed by the laws of the State of California. If the dispute is less than $5,000 there shall be no discovery other than the exchange of documents. If the dispute is over $5,000, discovery shall consist of no more than 3 depositions of 3 hours or less. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing. The award shall be made within 3 months of the filing of the notice of intention to arbitrate (demand), and the arbitrator(s) shall agree to comply with this schedule before accepting appointment. However, this time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section.
D. Confidentiality of Arbitration
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
E. Costs of Arbitration
Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
F. No Right to Jury Trial
You hereby waive any rights to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.
G. Prohibition of Class and Representative Actions and Non-Individualized Relief
You agree that You may bring claims against Strikingly only on an individual basis and not as a plaintiff or class member in any purported class, or representative or private attorney general action or proceeding. Unless both You and Strikingly agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims, and may not otherwise preside over any form of a consolidated, representative, class, or private attorney general action or proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other users. If a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court, subject to Your and Strikingly’s right to appeal the court's decision. All other claims will be arbitrated.
Strikingly may disclose to Affiliate certain information as a result of Affiliate’s participation in the Program, which information we consider to be confidential. For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to: (i) any modifications to the terms and provisions of the Program made specifically for the Affiliate or Affiliate Site and not generally available to other affiliates of the Program; (ii) price guidelines, future service releases, trade secrets, know-how, inventions, processes, programs, schematics, data, pricing and discount schedules, customer lists, financial information and sales and marketing plans relating to Strikingly or Strikingly’s services. Confidential Information shall also include any information that Strikingly designates as confidential during the term of this Agreement. Confidential Information shall not include information which is: (a) previously known to the other party without obligation of confidence or without breach of this Agreement; (b) which is publicly disclosed (other than by the Affiliate) either prior or subsequent to the Affiliate’s receipt of such information; or (c) required to be disclosed by the other party by law or by the order of a court or similar judicial or administrative body.
Affiliate shall at all times, both during the Term and at all times thereafter, keep and hold such Confidential Information in the strictest confidence, and shall not use such Confidential Information for any purpose other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without Strikingly’s prior written consent.
XV. Miscellaneous Provisions
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
A. No Waiver
The failure of each of the parties to exercise or enforce any right or provision of the conditions and terms of this Agreement shall not constitute a waiver of such right or provision. Strikingly’s failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Strikingly’s right to subsequently enforce such provision or any other provision of this Agreement.
B. Entire Agreement
This Agreement constitutes the entire understanding between the parties regarding the specific subject matter covered herein. This Agreement supersedes any and all prior written or verbal contracts or understandings between the parties hereto and neither party shall be bound by any statements or representations made by either party not embodied in this Agreement.
C. No Oral Modification
You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
D. Compliance with Law and Regulations; No conflict.
Affiliate shall comply with any and all applicable laws, regulations (including without limitation the Federal Trade Commission Endorsement Guides) and statutes of the United States or any other state, country or jurisdiction in which Affiliate acts, including without limitation, such that relate to advertising, dissemination of email, and/or electronic communications. It is Affiliate’s responsibility to be aware of all such regulations, statutes and laws.
E. Choice of Law
If any dispute arises in connection with the performance of this Agreement and cannot be amicably resolved, such dispute shall be solely and finally governed by and be construed according to the laws of the state of Delaware, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent courts of Dover, Delaware.
F. No Assignment
Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
For purposes of this Agreement, any notice or other communication to Company must be in writing. Such notice shall be deemed received (1) on the date receipt is acknowledged by Company; (2) five business days after such notice is sent via domestic registered or certified mail, with postage and charges prepaid; or (3) one business day after dispatch by a recognized next-day courier service; provided that such notice is properly addressed to Company at its address as set forth below:
Attn: Affiliate Program
548 Market St, PMB 69246
San Francisco, California 94104-5401, USA
Any notice or other communication to Affiliate may be in writing or electronic. Electronic notice to Affiliate shall be deemed received on the date which the email is sent; written notice to Affiliate shall be deemed received (1) on the date receipt is acknowledged by Affiliate; (2) five business days after such notice is sent via domestic registered or certified mail, with postage and charges prepaid; or (3) one business day after dispatch by a recognized next-day courier service; provided that such notice is properly addressed to Affiliate as provided in that Affiliate’s Application.
The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
I. Explanations and Summaries
Any explanation or summary of the terms presented hereto are provided for convenience only, and shall not limit or otherwise affect the terms of this agreement.
If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.
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