Affiliate Terms and Conditions
Background
WHEREAS, Company operates the Olive Affiliate Program, which allows third-party affiliates, advertisers or agents thereof (each, an “Advertiser”) to earn commissions for sales and/or leads generated through the distribution of advertising materials (“Ads”) across various media channels (the “Affiliate Program”); and
WHEREAS, Affiliate Partner owns and operates the media and/or network described in connection with Affiliate Partner’s application to participate in the Affiliate Program (the “Affiliate Partner Media”) and wishes to participate in the Olive Affiliate Program by displaying, publishing or otherwise making available certain Ads on Affiliate Partner Media in accordance with the terms of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. AFFILIATE PROGRAM
1.1. Campaign Offers. From time to time during the Term, Company will provide Affiliate Partner with Insertion Orders featuring Ad campaign information which will include the applicable economic terms. Insertion Orders may also include campaign-specific restrictions and/or terms and conditions additional to those included in these Terms (collectively “Campaign Rules”). Affiliate Partner acknowledges and agrees that its eligibility to participate in the Olive Affiliate Program is expressly contingent upon strict compliance with these Terms and all applicable Campaign Rules. Unless otherwise set forth on the applicable Insertion Order, all campaign offers are subject to cancellation or modification by Company at any time upon reasonable email notice. Company will endeavor to provide such notice at least 24 hours prior to the effectiveness of the change.
1.2. Company Feed. Upon Affiliate Partner’s acceptance of the applicable Insertion Order(s) Company will make available certain data and/or content through a mutually agreed upon process such as a data feed and/or spreadsheets (collectively “Company Feed”) for the applicable Advertisers that may include without limitation the Advertiser name and address, a Company-provided custom URL for tracking purposes, Qualifying commission criteria, as well as any approved creative materials.
1.3. Integration by Affiliate Partner. Affiliate Partner will work with Company to integrate the Company content into Ads for distribution on Affiliate Partner Media, subject to the prior written approval by Company. Each Ad displayed on Affiliate Partner Media must (i) contain the URL as provided by Company; and/or (ii) conform to the requirements of this Agreement including all applicable Campaign Rules as well as any additional requirements or specifications that may be provided by Company to Affiliate Partner from time to time during the Term (email sufficing). Upon Company’s request, Affiliate Partner shall provide a screenshot sample of each Ad for Company approval prior to going live. Any material changes to placement from what is represented by such screenshot must be submitted for Company review and must be approved by Company in writing (email sufficing) prior to going live. Unless otherwise set forth on the Insertion Order, Affiliate Partner shall remove all cancelled Ad placements from Affiliate Partner Media or implement any required changes in each case no later than 24 hours after the cancellation or modification becomes effective.
2. LEAD/SALES QUALITY; PROGRAM RULES; ADDITIONAL RESPONSIBILITIES.
2.1. Lead Quality; Rules; Audit Right. The parties recognize that the quality of the leads delivered through Affiliate Partner Media is essential to the value provided to Company through the Affiliate Program. Company shall be solely responsible for determining the quality of Users delivered by Affiliate Partner and Affiliate Partner Media and may consider, among other factors, the geographic origin, source and method of acquisition of such Users, the rate(s) of conversion associated with such Users, the cancellation and claims rates of Users, and such other factors as Company may deem relevant from time to time (collectively, “Quality Standards”). Company reserves the right to make such assessments on an individual partner as well as network basis. Affiliate Partner acknowledges and agrees that it has read and shall comply with the Affiliate Program Rules and Restrictions located at https://olive.com/legal/affiliate-program-rules-and-restrictions/ (or such successor URL(s) implemented by Company from time to time) (the “Rules”) which are fully incorporated herein by reference. Company may, at its own expense, have an independent auditor inspect the books and records of Affiliate Partner necessary to verify that sales and/or leads from Affiliate Partner Media meet the Quality Standards as well as Affiliate Partner’s compliance with the terms of this Agreement including but not limited to the Rules upon 10 days advance written notice, but not more than twice during any twelve (12) month period. Before accessing Affiliate Partner’s records, any independent auditor shall execute a nondisclosure agreement reasonably agreeable to the auditor and both parties.
2.2. Additional Remedies. If Company determines that Affiliate Partner or any of its partners or affiliates has breached or violated any of the Rules or any applicable Campaign Rules, Company may immediately terminate this Agreement and withhold as liquidated damages and not as a penalty, any payments then due from Company to Affiliate Partner. Affiliate Partner shall also be responsible for refunding any funds paid for previous periods during which a violation of the Rules or any applicable Campaign Rules has occurred, as determined by Company using available campaign data or in connection with an audit conducted in accordance with this Section. Affiliate Partner shall be wholly responsible for the activities of its Third-Party Publishers in their compliance with the Rules and all other terms of this Agreement. Affiliate Partner shall be liable to the fullest extent allowable under law and this Agreement for any breach of the agreements or violations of the requirements hereunder (whether resulting from the actions of Affiliate Partner or any of its Third-Party Publishers).
2.3. Additional Responsibilities. Affiliate Partner shall comply with all applicable federal, state and local laws, rules, statutes, acts, regulations, codes, standards relating to the performance of its obligations under the Agreement including without limitation obtaining all necessary regulatory approvals, necessary licenses and permits applicable to its business and performance of its services. Affiliate Partner shall at all times comply with its own privacy policy as well as with all laws and regulations related to the protection of privacy and personal information and Affiliate Partner Media. Affiliate Partner shall ensure that all Affiliate Partner Media is free of any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots or any other computer programming routines that contain contaminating or destructive properties or that are intended to, or have the capacity to, damage, detrimentally interfere with, intercept or expropriate any system, data, or personal information.
3. LICENSES AND OWNERSHIP
3.1. License by Company. Subject to these Terms and all applicable Campaign Rules, Company grants to Affiliate Partner a revocable, limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license during the Term (the “License”) to use the Company Feed solely for the purpose of facilitating the duties of the parties in accordance with this Agreement including, if applicable, to reproduce, reformat and publicly display the Ads on Affiliate Partner Media in accordance with this Agreement. Upon expiration or termination of this Agreement, all rights of Affiliate Partner under the License shall cease absolutely and Affiliate Partner shall not thereafter publish, advertise, promote, distribute or sell any item whatsoever bearing any olive.com URL.
3.2. Third-Party Publishers. Third-party publishers in Affiliate Partner’s network (“Third-Party Publishers”), if any, shall be deemed to be a part of Affiliate Partner Media, provided that: (i) placement with each individual Third-Party Publisher will be subject to the prior review and written approval by Company (email sufficing); (ii) Affiliate Partner enters into an enforceable agreement with each such Third-Party Publisher that protects the rights of Company as Affiliate Partner’s licensor to substantially the same extent as this Agreement including, without limitation, standard disclaimers of warranties and limitation of liability on behalf of Affiliate Partner’s suppliers and licensors; and (iii) Affiliate Partner passes through to each such Third-Party Publisher all applicable Campaign Rules as well as effectively implements terms and restrictions substantially equivalent to the Rules including but not limited to any Restricted List with respect to any and all Third-Party Publishers to be included in the Affiliate Program hereunder. Affiliate Partner agrees to provide truthful and accurate documentation showing its compliance with the requirements of this Section upon request by Company. Company reserves the right to require Affiliate Partner to turn off Ads on any Third-Party Publisher distribution source in Company’s sole discretion.
3.3. Data. Affiliate Partner agrees that all information and data provided to Company by users of Affiliate Partner Media or otherwise collected by Company from Users of Affiliate Partner Media will be retained and owned exclusively by Company or the Advertiser, as applicable. All information and data provided to Affiliate Partner by users of Affiliate Partner Media or otherwise collected by Affiliate Partner from Users of Affiliate Partner Media in connection with performance under this Agreement (“Affiliate Partner Data”) will be retained and owned by Affiliate Partner, provided however, that Affiliate Partner hereby grants Company an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, transmit, and make derivative works of any and all Affiliate Partner Data actually provided by Affiliate Partner to Company in connection with the Affiliate Program for the purposes of enabling Company’s provision of services to its Advertisers, which may include providing, analyzing, combining, reporting, and displaying a copy of certain Affiliate Partner Data to such Advertisers (whether directly by Company or through a mutually-agreed third-party data management platform), which would be relevant to their use of Company’s services and ownership right to which copy would transfer to such Advertisers upon provision, reporting or displaying as stated herein.
3.4. Ownership. This Agreement is not intended to, and shall not affect, ownership by a party of any of its intellectual property rights, content, products and services, and nothing set forth in this Agreement shall be construed as the assignment or transfer of any ownership rights in any of the foregoing from one party to the other. Other than the express licenses set forth in this Section 3, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under a party’s patent rights or other intellectual property rights. Nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed an admission by a party that any existing, planned or contemplated products, services or technology of the other party infringes or does not infringe its (or a third party’s) patent or other intellectual property rights or that the other party’s (or a third party’s) patent or other intellectual property is valid. Likewise, no party’s performance according to the terms and conditions of this Agreement will in any way broaden the intellectual property rights of another party. The parties reserve all rights not expressly granted.
3.5. Restrictions. Affiliate Partner agrees to comply with the express terms of the License and acknowledges that any use in breach of the License or otherwise outside the express scope of the License shall be deemed a material breach under this Agreement. Affiliate Partner agrees not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Affiliate Program hereunder. In addition, Affiliate Partner agrees not to adapt, translate, modify, decompile, disassemble, or reverse engineer the Affiliate Program or any software or program provided by Company in connection with the Affiliate Program.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall be effective on the date of the first Insertion Order executed by the parties hereunder and shall continue for twelve (12) months (the “Initial Term”). Unless this Agreement is terminated as provided herein or either party gives advance written notice of non-renewal within thirty (30) days prior to the expiration of the Initial or any Renewal Term, this Agreement will automatically renew for successive additional one (1) year periods (each a “Renewal Term”). The Initial Term and the Renewal Term are collectively referred to herein as the “Term”. Notwithstanding the foregoing, the Term shall continue in the event that any Insertion Order is in effect and has not expired or been terminated by a party hereunder.
4.2. Early Termination. Notwithstanding Section 4.1., this Agreement may be sooner terminated as follows: (i) either party may terminate this Agreement for any or no reason upon fifteen (15) days prior written notice to the other party; (ii) either party may terminate effective immediately if: (a) the other party is in default of any material obligation under this Agreement, and such default has continued unremedied for thirty (30) days after written notice from the non-defaulting party; or (b) the other party makes any assignment for the benefit of creditors or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee or receiver appointed for its business or assets or any part thereof; or (iii) Company may terminate effective immediately consistent with the provisions of Section 2.2.
4.3. Effect of Termination. Upon the effective date of termination, all rights and obligations of the parties will terminate except: (a) the duty of Company to make any outstanding Revenue Share Payments to Affiliate Partner in accordance with the terms of Section 5; (b) Sections 6 and 8-10 shall survive termination; and (c) each of Company and the Affiliate Partner shall be obligated to remove the other party’s intellectual property from their respective Web sites, servers and systems and any marketing materials.
5. PAYMENT
5.1. Selected Definitions. For the purposes of this Agreement: “Collection Risk” shall mean those costs associated with collection of revenue, including credit card charges, charge backs, bad debts, invoice adjustments, and Advertiser incentives; “Affiliate Costs” shall mean those costs associated with the distribution of the Ads such as network fees, agency and referral fees as well as reporting and tracking costs; “Net Revenue” means the amounts recognized by Company for Qualifying sales and/or Qualifying leads delivered hereunder less (i) amounts attributable to Collection Risk and Distribution Costs, and (ii) any refunds paid to the Advertisers by Company; plus or minus any Lead Quality adjustment, as applicable; “Non-Qualifying Lead” means any sale or lead that is: (a) outside of Company’s geographic coverage (b) cancels coverage within first thirty (30) days of purchasing (c) delivered in violation of any Rules or applicable Campaign Rules. For avoidance of doubt, a Non-Qualifying Lead cannot be a “Qualifying sale” or “Qualifying lead” as such terms are used in the definition of “Net Revenue”.
5.2. Reporting. During the Term, Company will use commercially reasonable efforts to provide Affiliate Partner with reporting as to the total number of Qualifying Sales and/or Leads and Non-Qualifying Sales and/or Leads by the end of each reporting period set forth on the applicable Insertion Order.
5.3. Revenue Share Payments. As a condition for any payment to be made hereunder, Affiliate Partner must provide Company with valid documentation of U.S. tax status (i.e. IRS form W-9) as well as any other information reasonably requested by Company in connection with Affiliate Partner’s application to participate in the Affiliate Program. Subject to the Minimum Payment (as defined below) Company will make monthly revenue share payments (“Revenue Share Payments”) to Affiliate Partner as a percentage of Net Revenue. The percentage of Net Revenue applicable to the Revenue Share Payments hereunder shall be set forth on the relevant Insertion Order signed and delivered by the parties. All Revenue Share Payments shall be due and payable to Affiliate Partner forty-five (45) days after the end of the applicable month. Company shall only be required to make Revenue Share Payments if the compensation accrued by Affiliate Partner in a given month exceeds one hundred dollars U.S. ($100) (“Minimum Payment”). If the compensation accrued by Affiliate Partner in a given month is less than the Minimum Payment amount, then no Revenue Share Payment shall be made for that period and Affiliate Partner shall relinquish the Revenue Share Payment for such month.
5.4. Calculations. The parties agree that Company shall be solely responsible for: (a) tracking and calculating Qualifying Sales delivered and all other measurements or data hereunder; (b) determining the quality of each Qualifying Sale; and (c) reporting and calculating Net Revenue and Revenue Share Payments. No other measurements or calculations will be deemed relevant nor affect either party’s performance under this Agreement. Affiliate Partner shall have no longer than five (5) days from the last day of the month prior to dispute any material discrepancy pertaining to the data underlying the Revenue Share Payments. Failure to report such discrepancy within such five (5) day period shall be considered by both parties as a forfeiture of Affiliate Partner’s right to dispute. In the event that the parties’ sales measurements differ by an amount in excess of ten percent (10%) of the total amount for any calendar month period, as reported by Affiliate Partner within the foregoing dispute period, the parties shall work together in good faith to resolve any such discrepancies. Notwithstanding the foregoing, the sales measurements and data of Company shall be determinative of the payment obligations hereunder.
6. CONFIDENTIALITY; NONSOLICITATION
6.1. Definition. “Confidential Information” means any non-public technical, business, and other information of either party disclosed to or obtained by the other party in connection with this Agreement, whether prior to, on or after the date of this Agreement, that derives economic value, actual or potential, from not being generally known to others, including but not limited to any technical data, designs, specifications, methods or plans of operation, know-how, techniques, drawings, processes, products, developments, inventions, improvements, product plans, research and development, business plans and pricing information, presentations, product functionality, customers, markets, competitive analysis, databases, formats, formulas, algorithms, or information related to engineering, marketing, or finance. All of the terms of this Agreement and all data generated pursuant to this Agreement will be deemed “Confidential.” Confidential Information will not, however, include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already lawfully in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.2. Protection of Confidential Information. With respect to Confidential Information other than rights expressly granted under Section 2.1, the receiving party agrees: (a) not to disclose any Confidential Information to any third parties; (b) not to use any Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) to keep the Confidential Information confidential using the same degree of care the receiving party uses to protect its own confidential information, as long as it uses at least reasonable care. If a party is requested or required by a government agency or judicial process to disclose the Confidential Information of another party, then the receiving party will notify the disclosing party of such request and will reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information. No press release or other public statement with respect to this Agreement or the relationship of the parties shall be made without the mutual written consent of the parties; provided that Company may refer to Affiliate Partner as a publisher participating in the olive.com Affiliate Program either on an individual basis or as part of a list of publishers in connection with Company’s marketing efforts. Affiliate Partner shall not hold itself out as in any way sponsored by, affiliated with, or endorsed by Company or any of its affiliates, licensors, or service providers.
6.3. Data Security and Privacy. Affiliate Partner shall implement and maintain administrative, physical and technical safeguards that prevent any collection, use or disclosure of, or access to Company’s Confidential Information, Affiliate Partner Data, and any other data specifically relating to Company or its Advertisers other than as necessary to perform its obligations pursuant to this Agreement, including, without limitation, an information security program that meets the highest standards of best industry practice to safeguard such data. Such information security program must include, without limitation, (i) adequate physical security of all premises in which such data will be processed and/or stored; (ii) reasonable precautions taken with respect to the employment of and access given to Affiliate Partner personnel, including background checks and security clearances that assign specific access privileges to individuals; and (iii) an appropriate network security program. Such network security program must include, without limitation, (a) appropriate access controls and data integrity controls; (b) testing and auditing of all controls; and (c) appropriate corrective action and incident response plans. Affiliate Partner will provide Company with all assistance as Company may reasonably require for Company to comply with any applicable laws, rules, or regulations that relate to the protection of privacy and personal information and/or provide individuals with certain rights with respect to their personal information.
6.4. Non-Solicitation. During the Term and for a one-year period following expiration or termination of this Agreement, Affiliate Partner agrees not to solicit any Advertiser of whom it has learned through the Affiliate Program hereunder provided that the foregoing restriction shall not apply to any Advertiser with whom Affiliate Partner can show to have already had a pre-existing relationship as of the effective date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Mutual Representations. Each party represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) as of the Effective Date and at all times throughout the Term, it has all consents, approvals, licenses and permissions, necessary for such party to perform all of its obligations hereunder and for the other Party to exercise all of its rights hereunder; and (iii) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
7.2. Additional Representations. Affiliate Partner further represents and warrants that: (a) all information it has provided Company in connection with its application to participate in the Affiliate Program and all other information it provides in connection with this Agreement is true, accurate, and complete; (b) neither it nor, if applicable, any of its Third-Party Publishers, are engaged in or will engage in any fraudulent, misleading or deceptive practices; (c) the Affiliate Partner Media and the display of Ads hereunder comply and will continue to comply during the Term with all applicable laws and regulations, the terms of the License, as well as all the agreements and requirements set forth under this Agreement; and (d) it shall obtain and maintain the full right and authority (including by way of any consents or appropriate advance notifications as may be required under applicable law) for the transfer of Affiliate Partner Data to Company and any use, disclosure or other processing by Company of such information for the purposes contemplated under Section 3.3 of these Terms.
8. INDEMNIFICATION
8.1. Indemnification. Each Party (the “Indemnifying Party”), at its own expense, will indemnify, defend and hold harmless the other Party (the “Indemnified Party”) and the Indemnified Party’s affiliates, employees, representatives and agents from and against any claim, demand, action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, and costs and expenses arising therefrom (including attorney’s fees), brought by any third party against the Indemnified Party (collectively, a “Claim”) to the extent that the Claim is based on, or arises out of (i) a breach or non-performance of this Agreement by the Indemnifying Party; or (ii) an allegation that the Indemnifying Party’s performance hereunder violates any applicable law, rule or regulation or infringes the rights of any third party, including but not limited to intellectual property rights. In addition, Affiliate Partner, at its own expense, will indemnify, defend and hold harmless Company and the affiliates, employees, representatives and agents of Company from and against any Claim to the extent that it is based on, or arises out of the existence, use and maintenance of Affiliate Partner Media or any content or activity over which there is no control by Company related to Affiliate Partner Media.
8.2. Procedure. All indemnity obligations arising under this Section 8 will be subject to the following requirements: (a) the Indemnified Party will provide the Indemnifying Party with prompt written notice of any Affiliate Partner Claim, in the case that Affiliate Partner is the indemnified party, or any Company Claim, in the case that a Company is the Indemnified Party (as applicable, a “Claim”), except that failure to give prompt notice will not waive any rights of the Indemnified Party to the extent that the rights of Indemnifying Party are not materially prejudiced thereby; (b) the Indemnified Party will permit the Indemnifying Party to assume and control the defense of the Claim upon the indemnifying party’s written acknowledgment of its obligation to indemnify; and (c) upon the Indemnifying Party’s written request, and at no expense to the Indemnified Party, the Indemnified Party will provide the Indemnifying Party with all available information and assistance reasonably necessary for the Indemnifying Party to defend the Claim. The Indemnifying Party will not enter into any settlement or compromise of the Claim without the Indemnified Party’s prior written approval, which shall not be unreasonably withheld, except a settlement or compromise that: (i) is full and final with respect to the Claim; (ii) does not obligate the Indemnified Party to act or to refrain from acting in any way; (iii) does not contain an admission of liability on the part of the Indemnified Party; (iv) dismisses the Claim with prejudice; and (v) is subject to confidentiality, such that no party may disclose the terms of the settlement or compromise without the Indemnified Party’s prior written consent.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
9.1. AFFILIATE PARTNER AGREES THAT THE AFFILIATE PROGRAM IS PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES ARE HEREBY DISCLAIMED BY COMPANY, AND COMPANY’S AFFILIATES AND LICENSORS. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IN CONNECTION WITH THE AFFILIATE PROGRAM IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY OF ANY NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, COMPANY AND COMPANY’S AFFILIATES DISCLAIM ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE AFFILIATE PROGRAM, AS WELL AS ANY WARRANTIES THAT THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. COMPANY WILL NOT BE RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO ADVERTISERS OR FOR ANY THIRD-PARTY WEB SITES THAT CAN BE LINKED TO OR FROM THAT PARTY’S WEB SITE.
9.2. EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 8, AND ANY BREACH OF SECTION 6, UNDER NO CIRCUMSTANCES WILL COMPANY NOR COMPANY’S AFFILIATES BE LIABLE TO AFFILIATE PARTNER OR ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, PROFITS OR GOODWILL AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE LEGAL THEORIES AND EVEN IF THAT PARTY HAS BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE APPLICABILITY OF ANY LIMITED REMEDIES PROVIDED HEREIN, COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED AMOUNTS PAID BY COMPANY TO AFFILIATE PARTNER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE BASIS OF THE LIABILITY. AFFILIATE PARTNER ACKNOWLEDGES AND AGREES THAT THE FEATURES OF THE AFFILIATE PROGRAM MAY BE CHANGED FROM TIME TO TIME IN THE SOLE DISCRETION OF COMPANY.
10. MISCELLANEOUS
10.1. Notices. Any notice required or permitted by this Agreement will be given in writing and will be deemed given as of the day they are received either by messenger, delivery service or certified mail, postage prepaid, and (i) if to Company, addressed to: Repair Ventures, LLC dba Olive. 222 S. Riverside Plaza, Suite 950, Chicago, IL 60606, Attn.: General Counsel; (ii) if to Affiliate Partner, addressed to Affiliate Partner at the business address set forth on the applicable Insertion Order to the attention of the General Counsel (unless otherwise specified by Affiliate Partner); or (iii) addressed to the other party at such other address for which such party gives notice hereunder.
10.2. Assignment; Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Affiliate Partner may not assign this Agreement or any of its rights hereunder, or delegate any of its duties hereunder without the prior written consent of Company. Company may assign and transfer this Agreement in whole or in part and may delegate its duties or assign its rights hereunder at any time.
10.3. Equitable Relief. Each party acknowledges and agrees that any violation or threatened violation of the terms set forth in Section 6 hereof may cause the other party irreparable harm for which there may be no adequate remedy at law. In the event of a violation or threatened violation of such terms, the non-breaching party will be entitled to injunctive and/or other equitable relief in addition to any other remedies which may be available to it under contract or at law. Each party expressly waives any requirement for a bond in connection with any such claim for injunctive relief.
10.4. Governing Law; Venue; Attorneys’ Fees. This Agreement will be governed and construed, to the extent applicable, in accordance with United States law, and otherwise, in accordance with Illinois State law, without regard to conflicts of law principles. The parties hereby irrevocably consent to the personal jurisdiction of and venue in the state and federal courts located in Cook County, Illinois with respect to any action, claim or proceeding arising out of or relating to this Agreement. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees.
10.5. Independent Contractors. Company and Affiliate Partner are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between Company and Affiliate Partner.
10.6. Force Majeure. No party will be liable hereunder (and their performance shall be excused under this Agreement) by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, terrorism, fires, flood, storm, explosions, earthquakes, Internet outages beyond the reasonable control of such party, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
10.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous proposals, whether written or oral, with respect to the subject matter hereof. Company reserves the right to change or modify these Terms and Conditions and will post such changes or modifications to a URL to be designated from time to time by Company (except that such changes will not affect any specific terms set forth on any Insertion Order). Affiliate Partner’s continued participation in any Affiliate Program following such changes shall be deemed an assent to such changes.
10.8. Severability. If any provision of this Agreement is held or made invalid or unenforceable for any reason, this Agreement will be construed as if that provision had never been contained herein, but considering the original intentions of the parties.
10.9. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
10.10. Section Headings. The section headings contained herein are for reference purposes only and do not in any way affect the meaning or interpretation of this Agreement.
