These terms and conditions (the “Standard Terms”), together with the terms and conditions set forth on any insertion order (the “Insertion Order”) (collectively these Standard Terms and the Insertion Order referred to as the “Terms”)and any exhibits constitute the entire agreement (the “Agreement”)between the affiliate accepting the Terms (“Affiliate”) and Dovly, Inc., a Delaware corporation (“Company”) regarding the referral of consumers to Company, as of the date of Affiliate’s acceptance of each Insertion Order(the “Effective Date"). In the event of a conflict between these Standard Terms and the terms of any Insertion Order, the terms of such Insertion Order shall govern. Company and Affiliate may be referred to each individually as “Party” and collectively as the “Parties.”
2. AFFILIATE MARKETING. Affiliate shall market the Company Servicesthrough campaigns listed on each Insertion Order and through other marketing media from time to time, (the “Marketing Services”), in each case providing Company with a reasonable opportunity to review and approve the content prior to release to ensure compliance with applicable legal standards and Company brand guidelines. Partner represents, warrants and covenants that Partner shall perform all Marketing Services in a timely, professional and workmanlike manner and that the Marketing Services will comply with all other provisions of the Agreement. Marketer shall perform the Marketing Service sand other obligations under the Agreement in accordance with applicable law, including, without limitation, by (x) not using trademarks, sounds and other property without all rights necessary to do so, and (y) complying promptly withall opt-out, unsubscribe, “do not call” and “do not send” requests, establishing and maintaining systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests, and otherwise complying with the CAN-SPAM Act of 2003, all laws concerning privacy, text messaging and email marketing, and all rules and regulations thereunder, in each case, as in effect from time to time.
3. ENGAGEMENT OF CONVERTED CUSTOMERS. Any Company Services provided by Company to a Converted Customer pursuant to a Definitive Agreement shall be at such prices and on such terms or conditions as Company shall prescribe, in its sole and absolute discretion, and to the extent any such prices, terms, or conditions are negotiated, such prices, terms, and conditions shall be negotiated strictly between the Converted Customer and Company. Affiliate shall not have the authority to accept or reject a Definitive Agreement, or otherwise bind Company in any other manner. The parties shall track conversion of Converted Customers via Company’s referral tracking platform.
4. ADJUSTMENTS BY COMPANY. Company shall have the full right to deal with a Converted Customer in connection with a Definitive Agreement without any liability or obligation to Affiliate for any action so taken, including specifically the right to (i) refuse, reject, cancel, or consent to the cancellation or return of, all or any part of a Definitive Agreement, and (ii) grant credits, amends, modifies, supplements, compromises, discounts, rebates, allowances, or returns in connection with the Definitive Agreement or the Company Services.
5. COMPENSATION; PAYMENTS. During the Term of the Agreement, Company shall pay Affiliate, as compensation for the services performed by Affiliate under the Agreement, the referral fees set forth in the applicable Insertion Order, as such Insertion Order may be amended from time to time by mutual agreement ("Commission"). All Commission earned by Affiliate shall be paid by Company to Partner no later than the last day of the month following the month during which enrollment under the associated Definitive Agreements was completed.
6. COMPANY-PROVIDED TRACKING LINK. Within ten (10) business days of the effective date of an Insertion Order, Company shall provide Affiliate with a dedicated URL that will allow Company to accurately track conversions of Converted Customers (the “Tracking Link”). It is Affiliate’s sole responsibility to ensure proper implementation of the Tracking Link on any applicable Affiliate marketing media. Affiliate shall earn Commission only with respect to referrals occurring directly through the Tracking Link, and Company shall not be liable to Affiliate with respect to any failure by Affiliate to use the Tracking Link properly, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to Affiliate pursuant to these Standard Terms or any Insertion Order.
7. TAXES. Company shall make no tax withholdings from any compensation paid under the Agreement to Affiliate. Company shall provide Partner an IRS Form 1099 for all compensation paid to Partner under the Agreement in a calendar year. Partner shall defend, indemnify, and hold harmless Company, consistent with the terms of the Agreement from any effort by any government unit or authority that may seek to collect from Company any taxes related to any payment made to Partner pursuant to the Agreement.
8. USE OF TRADEMARKS. Each Party hereby grants to the other Party, non-exclusive, non-transferable, non-sublicensable, limited license to use the other Party’s trademarks (the “Trademarks”) solely in connection with the mutually agreed advertising and promotion of Company Services, while the Agreement is in effect, and pursuant to the Agreement. Such Trademarks remain the proprietary property of such granting Party and the other Party shall have no right to use any such Trademark outside the scope of the Agreement. Except in connection with materials duly pre-approved by Company, Affiliate shall not otherwise use Company’s Trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of Company.
9. PUBLIC ANNOUNCEMENTS. Other than a routine advertising disclosure, without Company’s prior written consent, Affiliate shall not issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement.
10. CONFIDENTIALITY. Each Party (in such capacity, “Recipient”) will have access to certain Confidential Information of the other Party (in such capacity, “Discloser”), including the terms and conditions of the Agreement. “Confidential Information” includes all nonpublic information or materials of a confidential or proprietary nature pertaining to Discloser, or to any other person or entity with which Discloser has a commercial relationship, whether disclosed to or received by Recipient on or following the Effective Date, and whether disclosed orally, in writing, or in any other medium or form, including, without limitation, including but not limited to, Discloser’s information regarding its business, employees, financial condition, products, services, operations, or other financial and business matters. Discloser’s Confidential Information shall (i) remain the sole property of Discloser, and(ii) be used by Recipient only as described herein and may not be disclosed, provided or otherwise made available to any other third party except that such Confidential Information may be disclosed to Recipient’s employees or agents who have a need to know in the scope of their work during the time they are properly performing services under this Agreement and are under Recipient’s security and control; provided that Recipient shall be liable for any use or disclosure of Confidential Information in violation of this Agreement by such employees or agents as though they were Recipient. Confidential Information does not include (a) information that Recipient can establish was already known to Recipient at the time it was disclosed in connection with this Agreement, (b)information that is developed independently by Recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential, (c) information that becomes publicly known other than by a breach of this Agreement, or (d) information disclosed in accordance with a valid court order or other valid legal process; provided that Recipient shall have informed Discloser prior to any disclosure pursuant to clause (d) (unless informing Discloser is prohibited by applicable law), shall have cooperated with Discloser as reasonably necessary to reduce the scope and effects of disclosure and shall have disclosed only the minimum Confidential Information as required by such court order or such legal process. Recipient shall hold the Confidential Information of Discloser in strictest confidence, not use such Confidential Information except for the purposes permitted hereunder, and not copy, reproduce, distribute, publish or disclose such Confidential Information to any person except as expressly permitted by this Agreement.
11. TERM AND TERMINATION.
(a) Term. As of the Effective Date, these Standard Terms apply to every Insertion Order and referral of consumers by Affiliate to Company until a revised set of Company’s standard terms and conditions are provided to Affiliate or until terminated hereunder.
(b) Termination. In addition to any other express termination rights set forth in the Agreement:
(i) Termination for any Reason. Either Party may terminate the Agreement for any reason with seven (7) calendar days' notice to the other Party.
(ii) Termination Upon Breach. If either Party materially breaches any provision of the Agreement and fails to remedy such breach within three (3) calendar days of receipt of notice from the non-breaching Party, then the non-breaching Party may immediately terminate the Agreement.
(iii) Termination for Insolvency. Either Party may terminate the Agreement upon notice to the other Party in the event the other Party (w) discontinues its business; (x) files a petition for bankruptcy; (y)becomes insolvent; or (z) makes an assignment for the benefit of creditors.
(c) Survival. Following termination of the Agreement, the following sections shall survive: Restrictions, Warranty, Limitation of Liability, Indemnification, Dispute Resolution and Mediation, and any other terms which by their nature extend beyond the effective date of such termination.
12. RESTRICTIONS. Affiliate shall not and shall not permit any Affiliate personnel or agents to engage in any unfair, competitive, misleading, deceptive, or otherwise unlawful practices respecting Company, Company’ intellectual property (including Company’s trademarks), or Company Services, including any product disparagement.
(a) Each Party represents and warrants that such Party has all necessary power and authority to enter into the Agreement and all other agreements and instruments to be executed by such Party as contemplated by the Agreement and to carry out its respective obligations under the Agreement, and that no other action on the part of such Party is necessary to authorize the Agreement or the transactions contemplated hereby.
(b) Each Party represents and warrants that the execution and delivery of the Agreement and the consummation of the transactions contemplated hereby will not (with or without notice or lapse of time) violate or result in the breach by such Party of, or constitute a default under, or conflict with, any agreement, contract, instrument, order, judgment, award, decree, or any other restriction of any kind or character by which such Party is bound.
(c) Both Parties shall comply with all applicable federal, state, and local laws and regulations in performing their responsibilities hereunder.
14. WARRANTY. ALL COMPANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE,OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT COMPANY SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET AFFILIATE’S OR ANY OTHER PERSON’S REQUIREMENTS,OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE,COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN AFFILIATE AND THE THIRD-PARTY OWNEROR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SECURITY BREACHES,VIRUSES, HACKED SERVERS, WORMS, LOST OR STOLEN DATA, OR CORRUPTED DATA, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY.
15. INDEMNITY. Each Party shall indemnify and hold harmless the other Party, and such Party’s officers, directors, managers, employees, agents, affiliates, successors, and assigns (if any) for, from, and against any and all costs, expenses, and liabilities, including reasonable attorney’s fees, arising out of third-party claims relating to such Party’s acts or omissions in performing or failing to perform its obligation under the Agreement, including breach of any provision, representation, or warranty set forth in the Agreement. The obligations of each Party (the “Indemnitor”)under the Agreement to defend, indemnify, and hold harmless the other Party, and their respective employees, representatives, and agents (each, an “Indemnitee”)shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of any claims, demands, causes of action, proceedings, or lawsuits (“Claim”) giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of such Party’s obligation to defend, indemnify, and hold the Indemnitee harmless to the extent such Party reasonably demonstrates such Party’s defense or settlement of the Claim was adversely affected thereby;(b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such Claim; and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such Claim att he Indemnitor’s expense. Notwithstanding the foregoing, the Indemnitor shall not settle any claim if such settlement imposes liability or other obligations on the Indemnitee from all liability with respect to such Claim or unless the Indemnitee consents to such settlement in writing. Where the Indemnitor does not request the Indemnitee to cooperate in the defense or settlement of any such Claim in which the Indemnitee is involved, the Indemnitee may participate in the defense of the Claim at such Party’s own expense.
16. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY, OR ITS SUBSIDIARIES, OFFICERS, DIRECTORS, STOCKHOLDERS,AFFILIATES, AGENTS, EMPLOYEES, AND CONSULTANTS HAVE ANY LIABILITY UNDER THE AGREEMENT TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY,INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. COMPANY’S LIABILITIES UNDER THE AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY. THIS SECTION 16 REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES.
17. GENERAL PROVISIONS.
(a) Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by the Agreement.
(b) Equitable Remedies. Any breach or threatened breach of Section 8 or Section 10 will cause irreparable injury to Company for which an adequate remedy at law does not exist. Accordingly, Company is entitled to seek equitable relief, including an injunction, without the obligation to provide actual damages or post bond. The exercise of any remedy in the Agreement is without prejudice to any other right or remedy available to either Party. The rights and remedies in the Agreement are cumulative and in addition to any other rights and remedies provided by law or equity.
(c) Dispute Resolution and Mediation. If any controversy or claim arises relating to the Agreement, the Parties shall first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within thirty(30) days of when one Party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the Parties agree, understand, and acknowledge that (i) the Parties must first participate in mediation with an experienced third party mediator mutually agreeable to the Parties; (ii) the Party desiring to initiate such action or proceeding must put the other Party on notice of the dispute and the nature of such dispute; and (iii) the Parties agree to share equally in the costs of the mediation. If mediation does not result in a resolution of the dispute, either Party may elect to pursue other legal proceedings.
(d) Venue; Attorneys’ Fees. Affiliate consents to personal jurisdiction and exclusive venue in the State and Federal courts located in Maricopa County, Arizona. The prevailing Party, as determined by the decision-maker, in any arbitration, court action or proceeding is entitled to its reasonable attorneys’ fees and costs.
(e) Governing Law. The Agreement is exclusively governed by and construed according to the laws of the State of Arizona, without reference to any conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply to the Agreement.
(f) Waiver. No part of the Agreement will be deemed waived or modified except in writing and signed by both parties. No waiver of breach of any of the provisions of the agreements between Affiliate and Company will be construed as a waiver of any succeeding breach of the same or any other provision. No delay or omission by Company exercising any right or remedy will constitute a waiver of such right or remedy or prejudice the right of Company to enforce such right or remedy at any subsequent time.
(g) Notices. All notices, requests, demands, and other communications required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given, made and received (1) upon sending of an email (provided sender demonstrates evidence of transmission) or upon confirmation of a receipt of a facsimile transmission; (2) if hand delivered, upon delivery against receipt or upon refusal to accept the notice; or (3) if delivered by a standard overnight courier, one business day after deposit with such courier, postage prepaid, in each case, addressed to the Party at the address set forth in the Insertion Order. Either Party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this paragraph for the giving of notice.
(h) Binding Nature of Agreement. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, personal representatives, successors, and assigns except that Affiliate may not assign or transfer its rights or obligations under the Agreement without the prior written consent of Company.
(i) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every restriction set forth in the Agreement is independent and severable from the others, and no restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other restriction may be unenforceable in who leor in part.
(j) Entire Agreement. The Agreement constitutes the entire agreement between Affiliate and Company and supersedes any prior or contemporaneous negotiations, communications and agreements relating to the subject matter of hereof.
(k) Paragraph Headings. Thep aragraph headings in the Agreement are for convenience only; they form no part of the Agreement and shall not affect its interpretation.