AFFILIATE TERMS AND CONDITIONS

These Affiliate Terms and Conditions ("Terms") shall govern the relationship between Company (as defined below) and any person/entity that has submitted an application for the registration of an affiliate account ("Affiliate") with Company’s affiliate network ("Network"). “Company” shall mean: i) legal entity defined as Affiliate Network in the Insertion Order concluded with the Affiliate, or ii) Chatte Inc. or other legal entity designated by it, if no Insertion Order has been concluded with the Affiliate. The Terms shall also govern any insertion order ("IO") that may be entered into from time to time by the Affiliate and Company and that contains a reference to these Terms. In cases where an IO conflicts with these Terms, the Terms shall prevail. If the parties entered into one or more IOs the term "Terms" shall also include such IO(s).

Company reserves the right, in its sole discretion, to make changes or modifications to these Terms at any time and for any reason. Company will alert the Affiliate about any changes by updating the "Last updated" date of these Terms. The Affiliate waives any right to receive specific notice of each such change and the Affiliate's continued use of the Network fifteen (15) days after such modification constitutes Affiliate's consent to such changes.

YOU AGREE TO THESE TERMS AND YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR THE AGE OF MAJORITY IN YOUR STATE OR COUNTRY OF RESIDENCE) AND ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THESE TERMS.

Supplemental terms, policies or documents that may be posted at the Network from time to time are hereby expressly incorporated herein by reference and are made a part of the Terms.

Network.
1. The Affiliate agrees to provide the services identified and set forth in the Terms ("Services"). For the Services and for a fee (if applicable), Company shall grant to the Affiliate a non-exclusive, non-transferable, revocable and limited license to: (i) participate in marketing campaigns offered through the Network ("Offers"); and (ii) use the creative materials ("Ad Tools") provided by advertisers, merchants, advertising agencies or other relevant persons that use the Network ("Advertisers") solely and exclusively for Affiliate's efforts to market them to consumers and cause valid sales or other compensable activities ("Conversions") for such Offers.
2. Participation in the Network is subject to Company's prior approval. Company reserves the right to deny any application for the registration of an affiliate account ("Application"), in its sole discretion, with or without cause. If Company accepts the Application and later determines that acceptance was granted in error or for any reason at Company's discretion, Company may immediately terminate Affiliate's participation in the Network upon notice to the Affiliate.
3. If the Application is successful, Company will permit the Affiliate to participate in the Network via Affiliate's account on a password-protected basis ("Account"), subject to compliance with the Terms.
4. The Affiliate agrees to assume sole responsibility for maintaining the confidentiality of the Account and for restricting access to Affiliate's computer and/or the computers of Affiliate's respective officers, agents, employees and any other individuals who may have or may gain access to the Account. The Affiliate shall bear sole responsibility for all activities that occur under the Account or via use of Affiliate's password. If the Affiliate becomes aware of any unauthorized use of Affiliate's password or of the Account, the Affiliate shall notify Company immediately.
5. Company neither represents nor warrants that the information posted at the Network is accurate, complete or appropriate. The Affiliate understands and agrees that Company is not responsible or liable in any manner whatsoever for Affiliate's inability to use the Network. The Affiliate understands and agrees that Company shall not be liable to the Affiliate or any third party for any claim in connection with Affiliate's use of the Network.
6. The Affiliate agrees not to access (or attempt to access) the Network by any means other than through the interface that is provided by Company, unless the Affiliate has been specifically authorized to do so pursuant to a separate written and duly executed agreement between the Affiliate and Company.
7. The Affiliate agrees not to engage in any activity that interferes with or disrupts the Network (or the servers and networks which are connected to the Network). The Affiliate specifically agrees not to access (or attempt to access) the Network through any automated means (including use of scripts or web crawlers) and shall comply with the instructions set out at the Network.
8. Unless the Affiliate has been specifically authorized to do so pursuant to a separate written and duly executed agreement with Company, the Affiliate agrees not to reproduce, duplicate, copy, sell, trade or resell the Network or any element of it for any purpose whatsoever.
Traffic Sources.
1. The Affiliate is solely responsible for the development, operation, and maintenance of websites and other online assets owned, operated, or controlled by the Affiliate ("Traffic Sources") and all materials that appear thereon.
2. In connection with or arising from Affiliate's performance, the Affiliate shall not (nor permit or encourage any person or entity to): (i) inflate the Conversions through any misleading or deceptive practice, method, or technology (including, without limitation, through any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial, or fraudulent methods designed to appear like an individual, real live person performing a Conversion); (ii) accept Conversions generated from public or open proxy servers, IP addresses that have bot activity, or from pay-per-view or pay-per-surf programs; (iii) install or execute on another's device one or more additional software program(s) without consent of a user, or if such program(s) are installed with the consent of the user, the Affiliate must provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by a user, and assistance to remove such programs as required by applicable law; (iv) violate or infringe any intellectual property, proprietary or other rights of any third party (e.g., trademarks, service marks, brand names, copyrights, privacy, publicity, etc.); or (v) promote any Ad Tool that: (a) contains pornographic or other sexual material; (b) contains gratuitous displays of violence or obscenity; (c) promotes hate-mongering in any form (e.g., racial, political, ethnic, etc.); (d) contains incentivized offers (or the appearance thereof) that induce or attempt to induce users to click on any Ad Tool; (e) defames, misrepresents, abuses, or threatens physical harm to others; (f) promotes any illegal substance or activity; (g) is unfair, deceptive, misleading, or otherwise fraudulent; or (h) misrepresent an affiliation with a person/entity.
Tracking.
1. The Affiliate shall include in each of the Traffic Sources a special transaction tracking code ("Tracking Code") provided by Company.
2. The Affiliate shall not modify, circumvent, disable, impair, or otherwise interfere with any Tracking Code and/or other technology or methodology required or provided by Company. Company expressly reserves the right to seed the data derived from the Tracking Codes ("Data") in order to monitor Affiliate's compliance with the Terms and applicable laws, rules and regulations ("Laws").
Fees and Payment Terms.
1. 4.1. Calculation.
  1. Company shall calculate Affiliate's fees ("Fees") based on Valid Conversions (as defined below) recorded by the Tracking Codes.
  2. Company shall compile, calculate and post the Data and supplementary sources used by Company at the Network to determine Fees due to the Affiliate ("Data").
  3. Questions or disputes regarding the Data must be submitted in writing to Company within five (5) days of the date that the Data is posted at the Network; otherwise, the Data will be deemed unobjectionable, accurate and accepted by the Affiliate.
  4. Company will investigate and resolve any Data-related questions or disputes in its sole discretion. If (including, without limitation, impairment of the Tracking Codes) Company is unable or fails to provide the accurate and/or complete Data, Company shall calculate Valid Conversions, based upon such amount that Company reasonably determines is due and owing, in its sole discretion ("Projected Valid Conversions").
  5. The Affiliate agrees that payment for the Fees shall be made by Company to the Affiliate out of the funds collected by Company from the respective Advertiser. Unless otherwise determined by Company, Company shall have no payment obligation to the Affiliate where the Advertiser has not remitted sufficient payments to cover the Fees otherwise due and owing to the Affiliate.
  6. Company's obligations do not involve investigating or resolving any claim or dispute between the Affiliate and any Advertiser.
  7. All determinations made by Company for the Tracking Codes, Valid Conversions, Projected Valid Conversions and any associated Fees due to the Affiliate shall be final and binding on the Affiliate.
  8. Company may pay Fees through its payment agent. Fees paid by Company`s payment agent constitutes the sufficient and dully performed payment obligation by Company.
2. 4.2. Validation of Conversions.
  1. Company reserves the right to monitor Affiliate's activities regarding the participation in the Network, including but not limited to the Traffic Sources displaying the Ad Tools, for false creation of Conversions and for marketing practices that may violate the Terms and/or any Laws.
  2. Company reserves the right to evaluate all Conversions in order to determine, in the sole discretion of Company, that such Conversions constitute Valid Conversions. "Valid Conversion" means a transaction that: (i) is not generated via a computer generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like an individual, live person; (ii) is not generated by a person that has previously registered for, opted-in to and/or is already a member and/or a customer of an applicable Advertiser, as the case may be; and (iii) meets all criteria of an Offer.
  3. Company shall have no obligation to pay for any Conversions that it determines, in its sole discretion, do not constitute Valid Conversions ("Invalid Conversions"). If, after paying to the Affiliate, Company determines that all or certain corresponding Conversions do not constitute Valid Conversions, Company reserves the right to: (i) receive a refund for the amount paid for the Invalid Conversions; or (ii) reduce or withhold any future payment to the Affiliate up to the amount paid for any previous Invalid Conversions.
  4. If Company suspects fraud or unlawful conduct the Affiliate acknowledges that it is Affiliate's responsibility to prove to the satisfaction of Company that no fraudulent or unlawful activity has occurred. If Company detects fraud or unlawful conduct, the Account may be made inactive pending further investigation and all Fees payments will be withheld until Company determines that no fraudulent or unlawful activity has occurred.
  5. If the Affiliate fraudulently or unlawfully creates Conversions as determined by Company, in its sole discretion, Company will forfeit the Fees of the Affiliate for all Valid Conversions, and the Terms will be terminated immediately.
  6. The Affiliate acknowledges that Company it shall be solely responsible for damages and costs incurred by the Company resulting from fraudulent or unlawful activity, including but not limited to, collection agency and attorneys’ fees and costs.
  7. Company reserves the right to report all known and/or suspected fraudulent or unlawful conduct by the Affiliate to interested parties and to make such conduct public. The Affiliate agrees not to hold Company liable for any consequences of such reports. The Affiliate further acknowledges that it shall be in Company's sole discretion to determine whether fraudulent conduct has occurred or is suspected and to whom the conduct may be reported.
  8. Company may audit Conversions submitted by the Affiliate, at the Affiliate's expense, if Company suspects that the Affiliate submits Invalid Conversions to the Network.
3. 4.3. Payments.
  1. Company shall pay the Fees to the Affiliate as calculated in accordance with the Terms and the payment terms set out in an Offer.
  2. As a rule, payments will be carried out every week on Thursdays. However, for the initial period of cooperation, as determined by Company, the Affiliate shall be paid on a NET 15 basis.
  3. Such payments shall only be made to Affiliate provided the Account has reached the following minimum in accrued Fees ("Payment Threshold"):
    - Payoneer — 50$ (Fifty US Dollars)
    - Paxum — 100$ (One Hundred US Dollars)
    - PayPal — 500$ (Five Hundred US Dollars)
    - Capitalist — $150 (One Hundred and Fifty US Dollars)
    - Cryptocurrency (USDT/BTC) — 300$ (Three Hundred US Dollars)
    - Wire — $1000 (One Thousand US Dollars). A transaction fee of $35 (Thirty Five US Dollars)
  4. The Account that has accrued a balance below the Payment Threshold shall continue to roll over to the next payment period until an amount equal to or greater than the Payment Threshold has been met. Notwithstanding the foregoing, if the Affiliate has accrued less than the Payment Threshold and has not accrued any new Fees for a period of ninety (90) days, then Company's obligation to make any payments of such previously accrued Fees is erased.
  5. Company shall only pay the Affiliate if its payment information has been provided via the Account. In the event that the Affiliate does not provide valid payment information to Company within ninety (90) days the Fees being earned, then Company shall have no obligation to pay the Affiliate for such Fees.
  6. The Affiliate shall pay all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate's participation in the Network.
  7. The Affiliate acknowledges that for certain types of payments, including but not limited to international wire transfers, additional fees may be charged by Company to cover the additional costs associated with these forms of payments. (Wire fee is 35$)
  8. Company may require the Affiliate to provide any reasonable identification information and documents as a condition precedent to receiving any Fees payments.
  9. Company may withhold payments until an applicable Advertiser has paid Company for a corresponding Offer. Company reserves the right to reduce all payments owed to the Affiliate where an Advertiser has offset payments owed to Company.
  10. Company shall not be obligated to pay the Affiliate for the Fees where, in Company's sole discretion, Company believes that the Affiliate: (i) is in breach of the Terms; or (ii) has violated any Laws in connection with or arising from its performance in the Network.
  11. Upon termination of the Terms, Company shall pay the Fees to the Affiliate, even amounts below the Payment Threshold, during the next payment period, subject to Company's right to withhold and/or cancel Fees payments to the Affiliate as set forth elsewhere.
  12. Company shall not pay the Affiliate any Fees that arise: (i) before the Affiliate is accepted into the Network; or (ii) after termination of the Terms or any Offer.
  13. In the event the Affiliate has a negative Account balance because the Account has been charged back certain compensation and such balance is not sufficient to cover the charge back amounts, the Affiliate shall immediately remit payment to Company in an amount sufficient to bring the Account balance to zero. Negative Account balances are subject to 1.5% interest per month, or the highest amount allowed by Laws, whichever is higher, compounded monthly.
  14. The Affiliate shall earn a 2% referral commission on the fees payments made to any other new affiliates (excluding bonuses, rewards, additional payouts) that have been referred to Company using the specified link code provided to the Affiliate. The referral payment will be paid during the first 12 months from the registration of the referred affiliate.
Sub-Affiliates.
1. For the purposes of these Terms, any partner, associate, contractor, representative or agent of the Affiliate that participates in or performs any activities for the Affiliate in relation to any Offer shall be deemed to be a "Sub-Affiliate."
2. Company reserves the right to prohibit or require pre-approval of all Sub-Affiliates. Company reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason or no reason, and Company may revoke its approval of any Sub-Affiliate, with or without notice or reason.
3. The Affiliate shall be responsible for the acts and/or omissions of its Sub-Affiliates. In addition, the Affiliate shall require its Sub-Affiliate to comply with the Laws and shall obligate them to comply with the same obligations as required of the Affiliate under the Terms.
4. The Affiliate agrees to monitor its Sub-Affiliates to ensure that each Sub-Affiliate is complying with the obligations as required of the Affiliate under the Terms.
5. The Affiliate further agrees to indemnify, defend and hold harmless Company and its directors, officers, shareholders, employees, agents, contractors and affiliates from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs arising out of or related to the acts, errors or omissions of the Affiliate, its Sub-Affiliates, or any of the Affiliate's or Sub-Affiliates' officers, directors, employees, agents or affiliates, or any third party acting on behalf of any of the foregoing, in connection with the performance of its obligations under the Terms, any applicable Offer, or any breach of the Terms.
Privacy
1. The Affiliate shall conspicuously post privacy policy at the Traffic Sources and otherwise make it available to all customers.
2. The Affiliate's privacy policy must comply with all laws and regulations regarding the privacy of customer information, be commercially reasonable, and fully and accurately disclose Affiliate's collection and use of customer information.
3. The Affiliate must fully and accurately disclose Affiliate's use of third party technology, including tracking technology, use of cookies and options for discontinuing use of such cookies.
4. The Affiliate shall comply and shall ensure that its Sub-Affiliates comply with the Data Protection Addendum.
E-mail Marketing
1. E-mail marketing campaigns by or on behalf of the Affiliate in relation to the Network may only be undertaken with Company's prior express written consent.
2. The Affiliate represents and warrants that all commercial e-mails sent by or on behalf of the Affiliate or its Sub-Affiliates for the fulfilment of the Terms will comply with all applicable local, state and federal laws, rules, regulations and ordinances.
3. When performing e-mail marketing of any kind relating in any way to Affiliate's participation in the Network, the Affiliate represents and warrants that it shall transmit commercial e-mail only to those recipients that have given the Affiliate affirmative consent to receive e-mail advertising from the Affiliate and have not revoked such consent as of the date the commercial e-mail was transmitted to such recipient.
4. The Affiliate shall (i) not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any "subject" or "from" line materially false or misleading; (iii) not seek or obtain unauthorized access to computers to send any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both the Affiliate and/or any other relevant party, excluding Company; (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date the subject e-mail was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by either header or footer information which states the message is an advertisement or solicitation; and (d) process unsubscribe requests within seven (7) days of receipt of same; (v) comply with all legal obligations and best practices regarding unsubscribing consumers from the Affiliate's e-mail mailing lists; and (vi) at least once each week or prior to any e-mail drop, scrub the Affiliate email database against the relevant suppression lists.
5. The Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by or on behalf of the Affiliate or its Sub-Affiliates. The Affiliate shall respond to all consumer complaints within forty-eight (48) hours of notification.
6. Besides all other remedies available herein, Company retains the right to withhold and/or cancel Fees payments unless all e-mail related consumer complaints that Company is aware of are resolved to Company's satisfaction.
7. The Affiliate acknowledges that any failure to comply with this section may result in the immediate termination of the Terms and the forfeiture of all rights to any Fees otherwise owed to the Affiliate by Company.
Trademarks and Keyword Bidding.
1. Company may maintain a list of banned keywords at the Network. Company may modify this list from time to time in its sole discretion with or without notice to the Affiliate.
2. The Affiliate shall not and shall ensure that its Sub-Affiliates do not, (i) bid on any of the keywords contained in this list or any variations of these keywords; or (ii) use the keywords in Ad Tools during the term of the Terms.
Term and Termination.
1. The term of the Terms will end when terminated by either party as set forth herein.
2. The Affiliate may terminate the Terms, upon three (3) days' prior written notice to Company.
3. Company may suspend or terminate the Terms and/or terminate Affiliate's participation in the Network, with or without reasonable notice, in Company's sole discretion.
4. Upon suspension and/or termination of the Terms for any reason: (i) the Affiliate shall immediately cease to use and remove from the Traffic Sources all Ad Tools and/or other materials provided to Affiliate for participation in the Network; (ii) the Affiliate shall immediately cease and desist from transmitting or causing to transmit all e-mails with any Offer; (iii) all licenses and rights granted to Affiliate hereunder shall immediately cease and terminate; and (iv) all Confidential Information (as defined below), Ad Tools and proprietary information of Company in Affiliate's possession or control must be immediately returned or destroyed.
5. If requested, the Affiliate or an authorized officer of the Affiliate shall certify in signed writing that all such Confidential Information and/or proprietary information has been returned or destroyed.
6. Notwithstanding any termination of the Terms, any provisions of the Terms that may reasonably be expected to survive suspension/termination of the Terms shall survive and remain in effect under their terms.
Representations and Warranties.
1. The Affiliate represents and warrants that: (i) the Terms have been duly and validly executed and delivered by the Affiliate and constitutes Affiliate's legal, valid and binding obligation fully enforceable against the Affiliate; (ii) Affiliate's performance will comply with the Terms and Laws; (iii) Affiliate's performance will not violate or infringe any intellectual property or proprietary right of any third party; (iv) Affiliate understands and agrees that Company will contract with other affiliates that may be in direct competition with the Affiliate; (v) the Affiliate will maintain all documents and records to demonstrate compliance with Laws, and it will provide evidence of such upon reasonable request; (vi) the Affiliate will not engage in any e-mail and similar telecommunication marketing campaigns under the Terms without the prior express written consent of Company; (vii) the Affiliate has obtained all necessary permits, licenses or other authorizations required by Laws or regulatory authority for your business as conducted or as conducted during the term of the Terms; (viii) unless otherwise disclosed to Company, the Affiliate is not the subject of any investigation or prosecution by the Federal Trade Commission or any other federal or state governmental or regulatory body or agency for its products or services and, to the best of Affiliate's knowledge, no such investigation or prosecution is threatened; (ix) the Affiliate has disclosed the existence of any past federal or state decrees, orders or consent agreements, and any pending formal or informal government or private investigations or lawsuits involving the Affiliate and/or the officers, directors, or principals of the Affiliate to Company prior to completing the Application; (x) the Affiliate will promptly notify Company if it becomes the subject of any investigation or prosecution by the Federal Trade Commission or any other federal or state governmental or regulatory body or agency; and (xi) the Affiliate has security policies in place to ensure the security, integrity, and confidentiality of non-public customer information, protecting it against anticipated threats, and guarding it against unauthorized access or use, including administrative, technical, and physical safeguards used in the collection, distribution, processing, protection, storage, use, transmission, handling, or disposal of non-public customer information.
DISCLAIMERS. LIMITATION OF LIABILITY.
1. THE NETWORK, ANY PRODUCTS AND SERVICES OFFERED THROUGH IT, THE OFFERS, THE COMPANY DOMAIN NAME, TRADEMARKS AND LOGOS AND ALL TECHNOLOGY, SOFTWARE, MATERIALS, DATA OR IMAGES PROVIDED OR USED BY OR ON BEHALF OF COMPANY OR ITS LICENSORS IN CONNECTION WITH THE NETWORK (COLLECTIVELY THE "NETWORK OFFERINGS") ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS.
2. COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE NETWORK OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE NETWORK OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE OR TRADE USAGE.
3. COMPANY WILL NOT BE HELD RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES OR NETWORK INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, ANY DATA, IMAGES, TEXT OR OTHER INFORMATION OR CONTENT.
4. COMPANY MAY DISCONTINUE ANY OF THE NETWORK OFFERINGS, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE NETWORK OFFERINGS, AT ANY TIME AND FROM TIME TO TIME. COMPANY DOES NOT WARRANT IN ANY WAY THAT THE NETWORK OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR-FREE OR FREE OF HARMFUL COMPONENTS.
5. COMPANY SHALL NOT BE LIABLE FOR ANY ACTS OF ADVERTISERS, CONTENT PROVIDERS, AFFILIATES AND/OR ANY OTHER THIRD PARTIES WHOSE CONTENT OR OFFERS APPEAR AT THE NETWORK AND/OR IS MADE AVAILABLE TO THE AFFILIATE OTHERWISE, NOR THE CONTENTS OF ANY OTHER ADVERTISEMENTS, WEB-SITES OR WEB-PAGES.
6. IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR ANY LOST PROFITS OR LOST REVENUE OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE TERMS. WITHOUT LIMITING THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM CONDITIONS BEYOND COMPANY'S CONTROL AND IN ANY EVENT, COMPANY'S LIABILITY TO THE AFFILIATE UNDER THE TERMS SHALL BE LIMITED TO THE AMOUNTS PAID BY COMPANY TO THE AFFILIATE UNDER THE TERMS IN THE THREE (3) MONTHS PRIOR TO ANY SUCH CLAIM OF LIABILITY.
Confidentiality.
1. "Confidential Information" shall mean: (i) either party's proprietary information; (ii) information marked or designated by either party as confidential; (iii) information otherwise disclosed by either party in a manner consistent with its confidential nature; and (iv) either party's information conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential.
2. The parties acknowledge that under the Terms one party ("Disclosing Party") may disclose the Confidential Information to the other party ("Receiving Party"). Therefore, the Receiving Party agrees that it will make no disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party's prior written consent. The Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use regarding their own information of like character, to prevent disclosure of any Confidential Information.
3. This Section shall survive any termination of this Agreement for three (3) years thereafter.
4. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief. Notwithstanding anything contained to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully received by the Receiving Party from a third party not bound under any confidentiality provisions; or (iv) was disclosed under judicial order, requirement of a governmental agency or by operation of law. Notwithstanding the foregoing, Company shall be permitted to disclose the Confidential Information to government regulators during ordinary regulatory inspections, investigations and/or enforcements actions without providing notice to the Affiliate.
Indemnification.
1. The Affiliate, its Sub-Affiliates or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys ("Indemnitor") shall indemnify, defend and hold harmless Company, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, contractors, agents and attorneys (collectively, the "Indemnitee") against all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs or settlement costs, collections agency’s fees and costs) arising from or related to: (i) Indemnitor's participation in the Network; (ii) any breach or alleged breach by the Indemnitor of any provision of the Terms or any representation or warranty contained herein; (iii) any violation or alleged violation by the Indemnitor of any law, regulation, guideline; or (iv) fraudulent or unlawful activity of the Indemnitor.
2. The Indemnitee shall promptly notify the Indemnitor of any such claim (although failure to provide such notice shall not relieve the Indemnitor of its liability or obligation). The Indemnitor shall have reasonable control of the defense and settlement of any such claim and the Indemnitee shall cooperate with all reasonable requests of the Indemnitor (at the Indemnitor's expense) in defending or settling a claim.
3. Subject to the foregoing clause, the Indemnitee may join in the defense or settlement of any such claim with counsel of its choice, at its own expense. All costs and expenses incurred by the Indemnitor in providing the foregoing indemnity shall be paid by the Indemnitor.
Non-Circumvention.
1. The Affiliate recognizes that Company has proprietary relationships with affiliates, Advertisers and other third-parties (if any) that participate in the Network.
2. The Affiliate agrees not to circumvent Company's relationship with such affiliates, Advertisers and third-parties or otherwise offer, provide, contract for or perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in the Network for any affiliate, Advertiser or third-party publisher known, or should reasonably be known, by the Affiliate to participate in the Network, during the term of the Terms and for the one (1) year period following termination or expiration of the Terms.
3. Notwithstanding the foregoing, if the Affiliate can show that any such affiliate, Advertiser or third-party already obtained such services from the Affiliate prior to the Terms, the Affiliate shall not be prohibited from continuing such relationship. The Affiliate agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that Company shall be entitled to: (i) injunctive relief, including temporary and preliminary relief, without the requirement to post a bond; (ii) liquidated damages from the Affiliate in the amount equal to one hundred percent (100%) of the Fees paid to the Affiliate for the prior twelve (12) month period; and/or (iii) all other remedies available to Company at law or in equity.
4. The Affiliate shall not modify, circumvent, disable, overburden, impair, or otherwise interfere with any technology or methodology provided by Company with relation to the Terms.
Choice of Law/Venue. Dispute Resolution.
1. The Terms shall be governed by and construed under the laws of the British Virgin Islands, without giving effect to any choice of law or conflict of law rules or provisions. Should a dispute arise between the parties ("Dispute"), the Dispute shall be referred by each party to an officer/manager of their respective companies with authority to settle the Dispute and shall meet to settle the Dispute. If the officers/managers cannot resolve the Dispute, the Dispute shall be settled by arbitration as provided.
2. Any Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution® in accordance with its International Dispute Resolution Procedures, as modified by the ICDR® Online Protocol for Manufacturer/Supplier Disputes then in effect (the International Dispute Resolution Procedures and the ICDR Online Protocol for Manufacturer/Supplier Disputes are located at www.icdr.org).
3. Company shall be entitled to an award of its reasonable costs and expenses (including, without limitation attorneys' fees), in any action or proceeding in connection with, arising out of, or under the Terms.
4. Any claim under the Terms, other than for indemnity and defense must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred.
5. To the extent permitted by law, the Affiliate agrees that the Affiliate will not bring, join or participate in any class action lawsuit on any claim, dispute or controversy that the Affiliate may have against Company and its employees, officers, directors, members, representatives and assigns. The Affiliate agrees to the entry of injunctive relief to stop such a lawsuit or to remove the Affiliate as a participant. The Affiliate agrees to pay the attorney's fees and court costs that Company incurs in seeking such relief.
Miscellaneous.
1. Status of the Parties. Company and the Affiliate are independent contractors. The Terms shall not be construed to create any employment, partnership, joint venture, agency, franchise or sales representative relationship between the parties. The Affiliate shall have no authority to bind Company into any agreement, nor shall the Affiliate be an agent of Company.
2. Force Majeure. The Affiliate agrees that Company will not be liable, or be in breach of the Terms, for Company's delay or failure to perform as required under the terms as a result of any causes or conditions beyond Company's reasonable control which Company cannot overcome through exercising commercially reasonable diligence ("Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties or any act or omission of any other person or entity, Company will give the Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.
3. Assignment. The Affiliate may not assign, transfer or delegate any of its rights or obligations under the Terms without the prior written consent of Company, and any attempts to do so shall be null and void. Company may transfer or assign any and all of its rights and obligations under these Terms to any other person, by any way, including by novation, and by accepting these Terms the Affiliate gives Company consent to any such assignment and transfer. The Affiliate confirms that placing at the Network of a version of these Terms indicating another person as a party to the Terms shall constitute valid notice to the Affiliate of the transfer of Company's rights and obligations under the Terms (unless otherwise is expressly indicated). Subject to the foregoing limitations, the Terms will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
4. Entire Agreement. The Terms represent the complete and entire expression of the agreement between the parties, and shall supersede all other agreements, whether written or verbal, between the parties with respect to the subject matter addressed herein.
5. Non-Waiver. No waiver of any breach of any provision of the Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
6. Severability. If any provision in the Terms is determined to be invalid, illegal, or unenforceable under any law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Terms will remain in full force and effect.
7. Audit Rights. The Affiliate shall maintain true and correct books containing a record of all information pertinent to its participation in the Network during the term of the Terms and for any statute of limitations period. Company or its agent may review, at Company's expense, during regular business hours and upon not less than five (5) days' written notice, such relevant books and records to verify Affiliate's compliance with the Terms and all laws, rules, and regulations. Any such review will be made not more than twice in each calendar year during the term of the Terms unless a prior audit has disclosed a breach of the Terms or violation of any Laws. If Company discovers any breach of the Terms or violation of any Laws, then the audit shall be at the sole cost and expense of the Affiliate.

DATA PROCESSING ADDENDUM

This Data Processing Addendum ("Addendum") sets out the terms that apply as between Company and the Affiliate when processing European Economic Area ("EEA") personal data in connection with the Network. This Addendum forms part of the Terms. Capitalized terms used in this Addendum shall have the meanings given to them in the Terms unless otherwise defined in this Addendum.
Definitions: (a) "controller," "processor," "data subject," and "processing" (and "process") shall have the meanings given to them in Applicable Data Protection Law; (b) "Applicable Data Protection Law" means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law (in each case, as may be amended, superseded or replaced from time to time); (c) "EU Data Protection Law" means: (i) the EU General Data Protection Regulation (Regulation 2016/679) ("GDPR"); and (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) "Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.
Purposes of processing. The parties acknowledge that in connection with the Network, each party may provide or make available to the other party Personal Data. Each party shall process such data: (i) for the purposes described in the Terms; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
Relationship of the parties. Each party will process the copy of the Personal Data in its possession or control as an independent controller or processor (not as a joint controller or processor with the other party).
Compliance with law. Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data. Neither party shall be responsible for the other party's compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair and transparent, and shall make available to data subjects a privacy statement that fulfils the requirements of Applicable Data Protection Law.
International transfers. Where Applicable Data Protection Law in the EEA, and/or its member states, United Kingdom and/or Switzerland (collectively for the purposes of this Addendum, the "EU'), applies to the Personal Data ("EU Personal Data"), neither party shall process any EU Personal Data (nor permit any EU Personal Data to be processed) in a territory outside of the EU unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent the Affiliate transfers EU Personal Data to Company and Company is located in a territory outside the EU that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law), Company agrees to abide by and process such EU Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time) ("Model Clauses"), which are incorporated by reference in, and form an integral part of, this Addendum. Company agrees that it is a "data importer" and the Affiliate is the "data exporter" under the Model Clauses.
Security. Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access (a "Security Incident") and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of EU Data Protection Law/Applicable Data Protection Law.