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1. Joining the Affiliate Program
1.1. Registration. To use (or continue to use) the Affiliate Program, you must provide POWR Inc with truthful, accurate and complete registration information. If any such information changes, you must immediately update your registration information.
1.2. Accurate Registration Information. POWR Inc has the right to verify the truth and accuracy of any registration information at any time. Please be advised that if any information is determined by POWR Inc to be misleading, inaccurate or untruthful, POWR Inc may restrict, deny or terminate your account and/or your access and use of the Offerings; POWR Inc may also withhold payment of any commissions and/or other fees that may be or become due or payable to you, and may assess charges against such amounts for POWR Inc's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3. Participation. To join the Affiliate Program, you must be either an entity or an individual who is at least 18 years old, and must provide at your expense your own computer equipment and internet access.
1.4. USE OF THE AFFILIATE PROGRAM. IF YOU HAVE REGISTERED IN YOUR PERSONAL CAPACITY, YOU HEREBY ACKNOWLEDGE THAT SERVICES MADE AVAILABLE BY POWR INC TO AFFILIATE PROGRAM PUBLISHERS ARE PROVIDED FREE OF CHARGE AND SOLELY FOR THE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS AND YOU AGREE THAT YOU WILL ONLY USE THE AFFILIATE PROGRAM SOLELY FOR THE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS FOR YOUR BUSINESS AND FOR NO OTHER PURPOSE. YOU FURTHER AGREE THAT WHEN USING THE AFFILIATE PROGRAM, YOU ARE ENGAGED IN BUSINESS ACTIVITY AND ARE NOT ACTING AS A CONSUMER.
2. Defined Terms
2.1. The following terms have the meanings indicated:
"Advertiser" means any person that owns or operates a Site and/or other business that can acquire customers or other types of end users by way of the internet.
"Content" means information, data, text, documents, software, music, sound, photographs, graphics and video.
A "corporate affiliate" of a person is any other person that, directly or indirectly, controls such person, is controlled by such person, or is under common control with such person, with "control" meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person.
An “end user” means an actual or potential consumer, customer or other natural person.
"Engagement" means any time of agreement or arrangement between you and a Affiliate Program Advertiser, or in some cases, and agreement or arrangement between you and POWR Inc, that can be initiated or performed on or in relation to the internet, including affiliate marketing, performance based linking and online-to-offline tracking of tracked activities.
An "entity" means a sole proprietorship, corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by law as a legal person separate from its owners.
The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
"Intellectual Property Rights" means technology, templates, designs, Sites, domains, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright, moral rights, database rights and other intellectual property and proprietary rights, whether or not registered, therein and thereto.
A "link" means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a Web access device to display to its user a "banner," "button," text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
“Affiliate Program" means the online affiliate marketing Affiliate Program operated by POWR Inc through which Affiliate Program Publishers may enter into Engagements with Affiliate Program Advertisers.
The phrase “provided by POWR Inc” or “POWR Inc-provided” shall, when used in relation to tools, services, resources or other offerings, encompass the provision thereof by POWR Inc or POWR Inc Related Parties.
"Affiliate Program Advertiser" refers to an Advertiser that participates in the Affiliate Program and, through such participation and use of the appropriate Offerings, desires or seeks to recruit Affiliate Program Publishers to enter into Engagements with such Affiliate Program Advertiser.
“Affiliate Program Publisher” means a person that participates in the Affiliate Program and, through such participation and use of the appropriate Offerings, desires or makes itself available to be recruited or to enter into Engagements to display, distribute or place Qualifying Links for compensation.
"Affiliate Program Publisher Account Area" means the Affiliate Program Webpage(s) or other area of the Site having the URL designated from time to time by POWR Inc for use by Affiliate Program Publishers for the purpose of facilitating formation of qualifying links, accessing reports and otherwise participating in the Affiliate Program.
“Offerings” means offerings provided by POWR Inc or any POWR Inc Related Parties in the form of technology, software, reports and databases, customer support, account management and other client services, symposia, summits and other educational and Affiliate Programing events, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
A "person" is to be broadly construed and includes any natural person or entity.
“Prohibited Activity” means any of the following activities: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability or any other unlawful basis under applicable law; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) illegal gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) offering of any MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights or otherwise infringing the Intellectual Property Rights of any third party (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; or (j) fraudulent activities or impersonation of any person, including any POWR Inc (or POWR Inc Related Parties) representative, or misrepresentation of affiliation with any person.
A "Qualifying Link" means any type or format of link that is provided or authorized by POWR Inc to be displayed, distributed or placed on or by a Site pursuant to an Engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such POWR Inc or a Affiliate Program Advertiser can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. The term “Qualifying Link” shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a Qualifying Link.
“POWR Inc Related Parties” means the corporate affiliates and contractors, licensors, licensees and suppliers of each POWR Inc Service Provider.
"Site" means, as the context requires, either (a) one or more Web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the Web or works on or in relation to the Web, or (b) a person owning or operating any such Site, or (c) both. A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
A "tracked activity" means any type of pre-agreed or predefined activity or result that is sought by an Advertiser in relation to a Qualifying Link. The kinds of tracked activities that an Advertiser may seek to complete through such arrangements may include, by way of example, the serving of an image, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, the printing of a coupon (for offline redemption) or any other kind of action, transaction or activity that can be tracked and reported upon.
"Web" or "internet" or "online" means the global computer Affiliate Program currently referred to as the internet, including the World Wide Web, and any and all successor Affiliate Programs, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
3. Relationship of the Parties
In addition to and without limiting your obligations under this Agreement, your participation in the Affiliate Program will require that you enter into Engagements. In such event, the terms and conditions of the relevant Engagement will govern your relationship with the contracting Affiliate Program Advertiser, including your use of the Qualifying Links associated with that Affiliate Program Advertiser, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to your promotion of such Affiliate Program Advertiser or its Qualifying Links. POWR Inc is not a party to that Engagement and has no obligation to you with respect to any such Engagement. There may be instances where you are permitted to promote the Qualifying Links of a Affiliate Program Advertiser but the relationship will not be directly between you and the Affiliate Program Advertiser, but rather between you and POWR Inc. In those instances, POWR Inc may ask, in addition to this Agreement that you enter into an Engagement directly with POWR Inc which will govern your promotion of Qualifying Links for that Affiliate Program Advertiser.
4.1. Participation. Subject to the terms and conditions in this Agreement, you have joined the Affiliate Program as Affiliate Program Publisher and may use the Offerings made available to Affiliate Program Publishers. Your participation is purely voluntarily and you may terminate your participation at any time. Neither POWR Inc nor any Affiliate Program Advertiser shall be construed or deemed as having solicited, requested or procured you or your services to promote POWR Inc or any Affiliate Program Advertiser or its respective trade or business, or goods, products, property, or services.
4.2. Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to POWR Inc. Your participation in the Affiliate Program, use of any Offerings or receipt of payment of any compensation under any Engagement shall not be construed or be deemed to be an inducement for, solicitation of you to provide any products or services to POWR Inc.
4.3. Prohibited Activities. In respect of or in relation to any Site (or portion thereof) used by you in connection with your participation in the Affiliate Program, you may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes any Prohibited Activity.
5. Qualifying Links
5.1. Use of Qualifying Links. Each Qualifying Link used by you must include, in unaltered form, the POWR Inc tracking code in the manner and format made available or otherwise dictated by POWR Inc.
5.2. Valid Referrals Only. You will place or use Qualifying Links only with the intention of delivering the agreed upon tracked activities. You may not, nor knowingly permit any person to, activate or attempt to activate a Qualifying Link or inflate or attempt to inflate the amount of any sought-after or resulting tracked activities, including but not limited to the use of any method or technology that does not actually deliver an end user to the destination Site associated with such Qualifying Link.
5.3. Final and Binding Determinations. POWR Inc’s determination as to whether a tracked activity resulted from a Qualifying Link shall be final and binding on you.
5.4. Distribution of Qualifying Links. If you currently distribute, or plan to distribute, Qualifying Links on, to or through Sites other than those owned or operated by you, you hereby agree (i) that upon POWR Inc’s request from time to time, you will provide POWR Inc a list of Sites that are not owned or operated by you (together with any reasonably requested information about any such Sites) where Qualifying Links (and associated materials) have been, or are planned to be distributed and/or used, and (ii) to provide prompt and reasonable cooperation to POWR Inc in responding to any requests, complaints, claims or other issues raised by any Affiliate Program Advertiser regarding where and how such Affiliate Program Advertiser’s Qualifying Links are distributed and/or used, including ceasing further distribution of such Qualifying Links (and associated materials), as appropriate. You agree that you will be liable for any breach of this Agreement that results from an act or omission of any third party Site that you use to display Qualifying Links. POWR Inc reserves the right to prohibit you from distributing Qualifying Links to or displaying Qualifying Links on third party Sites.
5.5. No Modification, Etc. of Qualifying Links. You agree that you will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by POWR Inc and/or the Affiliate Program Advertiser to be used in connection with your use of any Offerings, including the promotion and display of Qualifying Links. You further agree that you may not create your own Qualifying Links unless specifically authorized to do so by the relevant Affiliate Program Advertiser, in which case you agree to comply with any of the Affiliate Program Advertiser’s applicable terms and conditions.
5.6. Termination of Qualifying Links. POWR Inc or the relevant Affiliate Program Advertiser may terminate any Qualifying Links associated with any Engagement. You must remove any Qualifying Links after being notified of any termination of the corresponding Engagement, including due to termination or expiration of a relevant Affiliate Program Advertiser’s participation. If Qualifying Links are not so removed, POWR Inc may redirect such links as it determines in its sole discretion, with or without compensation to you.
5.7. No Modification of Content. You may not modify, resize, reformat, edit or otherwise alter any Content provided by any Affiliate Program Advertiser, unless expressly authorized to do so by the relevant Affiliate Program Advertiser. In such event, any such modifications shall be strictly limited in accordance with such Affiliate Program Advertiser’s specific authorization.
5.8. Discontinuing Use of Qualifying Links. You may at any time discontinue use of Qualifying Links by removing such Qualifying Links from your Site, with or without notice to POWR Inc provided however you shall remain subject to the terms of the relevant Engagement and this Agreement until you separately terminate such Engagement(s) or this Agreement.
6.1. Revisions. You will have access to Offerings made available to Affiliate Program Publishers, including reports that detail tracked activities generated by your Site and any corresponding commissions that you have earned. POWR Inc reserves the right to revise any report made available to you at any time if we (or a Affiliate Program Advertiser) believe that the report contains an error or omission or otherwise requires an adjustment. Since the reports POWR Inc provides to you and Affiliate Program Advertisers are the bases for calculating the compensation, if any, due to you from that Affiliate Program Advertiser, any such revision may affect the amount of compensation to which you are entitled.
6.2. Data Furnished by Affiliate Program Advertisers. In providing Offerings, including giving you reports on your Affiliate Program activities, POWR Inc relies on data provided or made available by Affiliate Program Advertisers. POWR Inc is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by Affiliate Program Advertisers.
6.3. Errors. If you believe that any of your Publisher reports for any month contains errors in the data about an Engagement you must, using the contact information provided by the Affiliate Program Advertiser and POWR Inc in the Affiliate Program Publisher Account Area, notify that Affiliate Program Advertiser (with a copy to POWR Inc) within ten (10) days after the end of that month or any shorter period in relevant Engagement so that, if possible, the matter may be resolved. If any Publisher reports for any month are corrected or adjusted after the end of the month, then the period in which you must notify the Affiliate Program Advertiser (with a copy to POWR Inc) of errors in the corrected or adjusted data shall be ten (10) days after such correction or adjustment is posted or any shorter period in the relevant Engagement. Any dispute between you and a Affiliate Program Advertiser about any error you report must be resolved by you and that Affiliate Program Advertiser. In the event POWR Inc is in receipt of funds from a Affiliate Program Advertiser for the purpose of paying commissions to you, and a dispute arises between you and the Affiliate Program Advertiser regarding the amount of the funds that are due, or regarding who is entitled to receive the funds that are due, POWR Inc will be entitled to hold or return such funds to the Affiliate Program Advertiser, and to decline to offer further processing services until such dispute is resolved and POWR Inc is notified, in writing, by all parties, that payments should resume. You agree that POWR Inc shall have no obligation and incur no liabilities to you in connection with any such dispute.
6.4. Backing-up Data and Other Precautions. Data transfer, conversion, processing and storage may be subject to human and machine errors, delays, interruptions and losses. POWR Inc shall not be liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to you. POWR Inc may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by POWR Inc and/or to which it provides you with access.
7.1. General Compliance. You agree that you will comply with all privacy and data security laws, rules and regulations applicable to you in the regions in which you do business.
7.3. European Privacy Laws. If you operate your Site from an EEA member state or Switzerland or your Site receives or targets visitors from EEA member states or Switzerland, then you are subject to the EU Privacy Laws (as defined below) and hereby agree that you will:
a. Comply with the EU Privacy Law;
b. Inform end users in a prominent manner that you use tracking devices and cookies for advertising purposes; and
c. Obtain end users’ consent to place tracking devices, such as cookies (including tracking devices enabled by POWR Inc at your request on your behalf) on such end users’ computers and provide, where required, information regarding the option to opt-out or remove cookies/tracking devices in compliance with any applicable law;
You also represent, warrant, covenant, undertake and agree you that are in compliance with all of your obligations under EU Privacy Law in respect of your data and information, including obtaining all necessary consents from end users in order for POWR Inc to use your data and information. Upon POWR Inc’s request, you shall furnish to POWR Inc proof of the applicable end users’ consent to such use of data and information, including consent to the use of tracking devices and cookies enabled by POWR Inc and you will take all steps reasonably requested by POWR Inc to ensure POWR Inc’s compliance with applicable data protection law, including EU Privacy Law. “EU Privacy Law” means the European Union Data Privacy Directive, the European Union Privacy Directive and any local implementing law, including any subsequent legislation replacing or amending any such laws from time to time.
7.4. Brazilian Privacy Laws. If you operate your Site from Brazil or your sites receives or targets end users located in Brazil, you are subject to the Marco Civil da Internet, Law No. 12.965/2014 (“Brazilian Privacy Law”), which, among other things, establishes rights for end users and creates a series of obligations for the providers of internet applications and connections, principally as a means of guaranteeing freedom of expression and privacy for users and you agree to comply with the Brazilian Privacy Law. You further agree that:
a. You will not collect, use or store any information or data about a end user without first obtaining that end user’s express authorization in accordance with the Brazilian Privacy Law.
b. Any use by you of Qualifying Links as described in this Agreement shall comply with the Brazilian Privacy Law.
c. You will obtain the express authorization of end users to collect, use or share that end user’s data, including authorization to use third parties to collect, use or share such information on your behalf.
d. You obtain consent of end users to place tracking devices, such as cookies (including tracking devices enabled by POWR Inc at your request on your behalf) on such end users’ computers, including where required, information regarding the option to opt-out or remove cookies/tracking devices to the extent required under the Brazilian Privacy Law.
e. You shall take additional measures to comply with any provisions of the Brazilian Privacy law limiting the transmission of unsolicited commercial email.
8. Your Obligations
8.1. No Solicitation. You may not use any Offerings in connection with aggregating, soliciting or recruiting Affiliate Program Advertisers, Affiliate Program Publishers or other Sites or other persons to form or join a marketing, advertising or similar Affiliate Program.
8.2. No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Offerings, and any attempt to do so shall be null and void.
8.3. No Reverse Engineering. You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any Offerings.
8.4. No Hacking, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, any Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by POWR Inc.
8.5. No Spam. You may not use any Qualifying Links in any electronic message unless (a) you have received the express written authorization of POWR Inc or the Affiliate Program Advertiser to use email or other electronic messages to promote it or its Qualifying Link and (b) any and all such electronic messages comply in all respects with this Agreement, the Affiliate Program Advertiser’s terms and conditions, and any and all applicable foreign, national, federal, state, local or provincial laws prohibiting or restricting the delivery of unsolicited electronic communications, also known as SPAM. Further, no electronic message initiated or sent by you or on your behalf may identify POWR Inc or, except as expressly authorized by an individual Affiliate Program Advertiser, any Affiliate Program Advertiser as a sender or sponsor of such electronic message.
8.6. No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any Qualifying Link that has been placed or distributed by another Affiliate Program Publisher including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such Qualifying Link without your interference.
8.7. No Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with your use of any Qualifying Links, the Affiliate Program or any other Offerings, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to your Qualifying Links or for any other purpose.
8.8. Fraud, Abuse, etc. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with your participation on the Affiliate Program or in connection with any Affiliate Program Advertiser's program or Engagement.
9. Grant of License to You
9.1. Your Use of Offerings. POWR Inc grants to you a personal, non-exclusive, non-transferable, non sublicenseable revocable and limited license and right, subject to the terms of this Agreement, to:
a. Use the Offerings, to participate in the Affiliate Program as a Affiliate Program Publisher;
b. Access the Affiliate Program Publisher Account Area necessary for your participation in the Affiliate Program;
c. Solely for your use in connection with your participation in the Affiliate Program, access reports made available to you by POWR Inc;
d. Use any software code or other Content that is provided by POWR Inc solely for the purpose of creating and maintaining Qualifying Links in accordance with the terms of this Agreement and your Engagements, for such purpose, and no other purpose, but only in the form so provided.
9.2. Limitations. Except as provided in this Section 9, all other use of the Offerings, including the Affiliate Program, the Affiliate Program Publisher Account Area, any reports made available to you by POWR Inc and software code or Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited. POWR Inc may change the form and/or content of any report at any time without notice to you.
9.3. Use of the POWR Inc Name. This Agreement does not grant to you any license or right to use POWR Inc's name or any of its logos or trade or service names or marks except to the extent any trade or service name is part of any code made available to you as part of a Qualifying Link. Any proposed press release or other public announcement by you regarding this Agreement or the Affiliate Program or that refers to POWR Inc or any of its corporate affiliates, either directly or indirectly, shall require the prior written approval of POWR Inc. You agree that you shall not disparage POWR Inc, any POWR Inc Related Parties, the Affiliate Program or any other participants thereof.
9.4. Duration of License Rights; Reservation. The license set forth in Section 9.1 (Use of Offerings) is valid only while you remain a member of the Affiliate Program as a Affiliate Program Publisher and comply fully with this Agreement. POWR Inc may revoke any such license at any time by giving you notice by e-mail or in writing. POWR Inc reserves all rights that are not specifically granted to you by this Agreement.
10. Grant of Licenses to POWR Inc
10.1. Use of your Content. Other than as provided below, in order to participate in the Affiliate Program, you are not required to provide POWR Inc with any Content or other materials. Should you do so, by way of uploading, delivering or otherwise making available to POWR Inc any Content and/or other materials (including any Intellectual Property Rights therein and thereto), you hereby grant, to POWR Inc a non-exclusive, worldwide, royalty-free, sublicenseable perpetual license to use and store the same including in relation to POWR Inc’s conduct of its business or performance of any services in relation to the Affiliate Program.
10.2. Use of Your Personal Information. POWR Inc and POWR Inc Related Parties may use your personal information (i) for the purpose of facilitating your participation in the Affiliate Program, which may include, indexing your name and relevant information about your business in the Affiliate Program Publisher database, (ii) making such information available to Affiliate Program Advertisers in furtherance of possible business relationships,
(iii) to facilitate payments to you, (iv) to contact you generally regarding your use of the Affiliate Program (and you agree to receive email and other communications regarding the Affiliate Program and your participation in the Affiliate Program from POWR Inc and any POWR Inc Related Parties), (v) for overall benchmarking and analysis of the Affiliate Program and (vi) to conduct an investigation to determine if you have violated any provision of this Agreement and as part of such investigation POWR Inc may share your personal information with a third party or a law enforcement agency that needs such information in order to support such investigation. If you live or if you are a business that is headquartered in Europe, you hereby acknowledge and agree that your personal data may be transferred or stored outside the Europe in order to facilitate your use of the Offerings, including processing commission payments owed to you by Affiliate Program Advertisers.
10.3. Use of your Name. You agree that POWR Inc may refer to you by name in connection with the Affiliate Program and/or the performance or provision of any Offerings, including in communications sent to actual or prospective participants of the Affiliate Program.
10.4. Disclosure of Business Relationship. Nothing in this Agreement shall prevent POWR Inc from making any public or private statements about your business relationship with POWR Inc and/or any Affiliate Program Advertiser and/or your participation in the Affiliate Program.
10.5. Use of your Logo. POWR Inc will not use any of your logos and/or other trademarks without your prior written approval, except as expressly provided in this Agreement. Any and all uses of your logos and/or other trademarks shall be in accordance with your specified usage and/or brand guidelines.
11. Representations and Warranties
You hereby represent, warrant, covenant, undertake and agree follows:
a. You have the legal right to conduct any business conducted by you including in respect of any Site(s) participating in the Affiliate Program and to the extent that you are an individual, you are at least eighteen years of age; and
b. Any and all information you provided as part of the registration process or otherwise is and shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by POWR Inc; and
c. This Agreement has been duly and validly authorized, accepted, executed and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; and
d. The performance by you of this Agreement and any Engagement to which you are or become a party does not and will not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to you, and (ii) if you are an entity, any provision of your certificate of incorporation or other organizational documents.
12.1. Confidential Information. You acknowledge that in connection with your participation in the Affiliate Program and/or in one or more Engagements you will be provided with confidential and proprietary data and information from time to time. Such confidential and proprietary data and information may be owned variously by POWR Inc or Affiliate Program Advertisers and/or its or their suppliers or contractors. You will retain ownership of any data and information that you independently collect through your Sites without the use of Offerings, provided that any data and information that may be provided by you to POWR Inc shall be deemed to be covered by the licenses granted to POWR Inc under this Agreement. Confidential information of POWR Inc includes but is not limited to information about tracked activities contained in reports, non-public information about Advertisers and software code made available to you by POWR Inc to facilitate your participation in the Affiliate Program.
12.2. Duty of Care. You will keep confidential information, including reports, data and other information provided to you through the Affiliate Program Publisher Account Area or otherwise strictly confidential. Without POWR Inc’s prior written consent, you will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement and/or your Engagements.
12.3. Need to Know Basis. You may disclose any such confidential information only to your employees, officers, directors, lawyers or business advisors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
12.4. Legally Required Disclosures. If you receive any document request, interrogatory, subpoena or other legal process (“Request”) that would, by its terms, require the disclosure of any confidential information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, you will, unless otherwise prohibited by law or an order of a competent court, notify POWR Inc in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, POWR Inc may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by POWR Inc, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. POWR Inc will be entitled to seek and obtain injunctive relief preventing any breach of your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
13. Payment; Fees
13.1. Affiliate Program Advertiser Responsible for Payment. You acknowledge that your entitlement to any compensation reported with respect to any tracked activity (including if reported) is solely a function of the terms of your Engagement with the relevant Affiliate Program Advertiser and that such Affiliate Program Advertiser is solely responsible for its payment. POWR Inc is not liable or responsible for payment or collection even if POWR Inc performs the function of processing payments to you on behalf of Affiliate Program Advertisers. You further acknowledge that your entitlement to any compensation reported with respect to any tracked activity is subject to POWR Inc’s receipt of funds from the Affiliate Program Advertiser associated with the Engagement giving rise to the purported compensation. If your Engagement to promote the advertising content of a Affiliate Program Advertiser is with POWR Inc (and not directly with the relevant Affiliate Program Advertiser) then, you acknowledge and agree that any compensation due to you is ultimately determined by the Affiliate Program Advertiser and POWR Inc will not be liable or responsible for paying out compensation under an its Engagement with you unless and until it receives the funds from the Affiliate Program Advertiser associated with the Engagement between you and POWR Inc which gives rise to the purported compensation.
13.2. Affiliate Programs of Brazilian Affiliate Program Advertisers. If you participate in the affiliate marketing program of a Brazilian Affiliate Program Advertiser, then you may be subject to and required to comply with applicable Brazilian tax and other laws. You hereby agree to comply with all applicable Brazilian laws, rules and regulations, including any applicable tax laws. You also acknowledge and agree that you will comply with the Affiliate Program Policies as they relate to working with Brazilian Advertisers, including the requirement that you submit an invoice for payment to RM Brazil for commissions earned in connection with Engagements with Brazilian Advertisers.
13.3. European Region Publishers. If you are a European Region Publisher or operate your business from a location or in a manner that subjects you to the tax laws of any EEA member state or Switzerland, then you hereby agree that POWR Inc, as a limited commercial agent, is authorized to invoice and collect in your name and on your behalf, the compensation due to you pursuant to this Agreement or and your Engagements with an Affiliate Program Advertisers. POWR Inc will pay over to you any such sums collected in your name and on your behalf. In order to enable POWR Inc to collect sums on your behalf from an Advertiser you must provide POWR Inc with all necessary financial and tax information, including your Value Added Tax (VAT) and company registration numbers, if applicable. You acknowledge and agree that you have access to copies of all invoices issued by POWR Inc in your name and on your behalf. You may raise any objections to the content of the invoices issued in your name and on your behalf with POWR Inc within ten (10) days after the date of issue of the invoice. You acknowledge and agree that You retain full responsibility for: (a) fulfilling your obligations with respect to VAT, if applicable; (b) paying the VAT, if applicable, on the commissions collected and paid to you by POWR Inc on your behalf; (c) immediately reviewing all invoices and requesting copies of any reports or invoices not received from POWR Inc; (d) advising POWR Inc of any changes to your company's tax identification information; and (e) otherwise complying with all applicable tax laws, rules and regulations.
13.4. Australian Region Publishers. If you are an Australian Region Publisher or operate your business from a location or in a manner that would subject you to compliance with Australian tax law, then you hereby agree to comply with any applicable tax laws, rules or regulations, including A New Tax Systems (Goods and Service Tax) Act 1999 (“GST Law”). You acknowledge and agree that POWR Inc is entitled to rely (without further inquiry) on any representations made by you in relation to your compliance, with the GST Law, including in relation to your GST status.
13.5. Payment Terms. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from the relevant Affiliate Program Advertiser, since payment may be subject to conditions established by that Affiliate Program Advertiser, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks and minimums for earned compensation before payment is made.
13.6. Disputes. POWR Inc is under no obligation to investigate or resolve any claim or dispute involving you and any Affiliate Program Advertiser or other third party person. If POWR Inc, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to you or any other party to the claim or dispute.
13.7. Right to Assess Fees. POWR Inc may, at any time upon prior written notice to you as described below, commence charging or assessing fees in relation to any or all Offerings made available to you including your participation on the Affiliate Program(s). Except as otherwise expressly provided in this Agreement, in the event POWR Inc elects to charge or assess fees, you will be notified at least fourteen (14) days in advance in writing by email or posting through the Affiliate Program Publisher Account Area. You may elect not to pay any such fees by discontinuing your participation in all Offerings prior to the commencement of such fees. Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for you by POWR Inc or POWR Inc Related Parties including any amounts that may be due, payable or paid to you by any Affiliate Program Advertisers, POWR Inc, or other third parties.
13.8. Tax. You agree that you are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with any compensation earned by you as a result of your participation in any Offerings, the Affiliate Program or any Engagement.
13.9. Exchange Rate Risk. In the event that POWR Inc is retained by a Affiliate Program Advertiser to process payments on its behalf, you may be permitted, at POWR Inc's sole discretion, to elect to receive payment in a currency other than the default currency for the applicable the Affiliate Program. You agree that, should you choose to do so, you will bear all risk of any fluctuations in the applicable currency exchange rate.
14. Compliance with Laws
Without limiting any other provision of this Agreement, you and your corporate affiliates, officers, directors, employees, consultants, agents and representatives, and the activities of your business, your performance under any Engagements, and your use of the Affiliate Program and/or Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
15. Termination of Affiliate Program Advertisers
Any Affiliate Program Advertiser's participation in the Affiliate Program may end or be suspended for a number of reasons, including expiration or early termination of its advertiser agreement with POWR Inc, and you may not necessarily receive any prior notice that such Affiliate Program Advertiser's participation has been suspended or terminated. If that happens, POWR Inc may, without notice to you, terminate or suspend all Qualifying
Links that you have with that Affiliate Program Advertiser immediately or, in POWR Inc's discretion, at any time thereafter. POWR Inc shall have no obligation or liability to you because of any such termination of Qualifying Links or the termination or suspension of any Affiliate Program Advertiser.
16. DISCLAIMER OF WARRANTIES
16.1. AS-IS. THE AFFILIATE PROGRAM AND ANY POWR INC OFFERINGS ARE PROVIDED "AS IS”, “WHERE IS" AND "AS AVAILABLE."
16.2. DISCLAIMER. EACH POWR INC SERVICE PROVIDER AND EACH OF THE POWR INC RELATED PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ANY AND ALL WARRANTIES , EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE AFFILIATE PROGRAM OR ANY OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY QUALIFYING LINKS OR AFFILIATE PROGRAM ADVERTISER WILL BE AVAILABLE OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT WITH YOU.
17. LIMITATION OF LIABILITY
17.1. LIMITATION. YOU AGREE THAT THE TOTAL LIABILITY OF POWR INC AND POWR INC RELATED PARTIES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU FOR ANY CLAIMS MADE UNDER THIS AGREEMENT WILL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE AVERAGE OF COMMISSION FEES PAYABLE TO YOU BY AFFILIATE PROGRAM ADVERTISERS DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY SUCH CLAIM, AND (B) USD$1,000 (USD ONE THOUSAND DOLLARS). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT POWR INC IS PROVIDING THIS SERVICE AT NO CHARGE TO YOU.
17.2. NO CONSEQUENTIAL DAMAGES. NONE OF POWR INC AND POWR INC RELATED PARTIES WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH ENTITY WAS AWARE THAT SUCH DAMAGES COULD RESULT.
17.3. APPLICABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 17 MAY NOT APPLY TO YOU.
18.1. Indemnification. You agree to defend, indemnify and hold harmless POWR Inc and POWR Inc Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on (a) any breach of any representation, warranty, or covenant made by you in this Agreement, (b) you engaging in any Prohibited Activity (c) any breach by you of any Engagement,
(d) any violation by you of any law, regulation or rule, (d) your inappropriate use of any other Offerings, (e) your negligence or willful misconduct, and/or (f) any actual or alleged infringement by you of any Intellectual Property Rights or other rights of any person.
18.2. Control of Defense. POWR Inc may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. POWR Inc may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without POWR Inc's prior written consent.
19.1. Amendments. Upon at least fourteen (14) days’ prior written notice, POWR Inc may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Affiliate Program Policies and Guidelines. YOUR CONTINUED USE OF THE AFFILIATE PROGRAM AND/OR POWR INC OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH AMENDMENT. IF YOU DO NOT WISH TO ACCEPT ANY SUCH AMENDMENT, THEN YOU MUST TERMINATE YOUR ACCOUNT IN THE AFFILIATE PROGRAM AND CEASE USING THE AFFILIATE PROGRAM AND ANY ASSOCIATED OFFERING OR ENGAGEMENT.
19.2. Changes in Service. Upon prior written notice, POWR Inc may add, remove, suspend or discontinue any aspect of the Affiliate Program or any other POWR Inc Offering. YOUR CONTINUED USE OF THE AFFILIATE PROGRAM AND/OR POWR INC OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT IN THE AFFILIATE PROGRAM AND CEASE USING THE AFFILIATE PROGRAM AND ANY ASSOCIATED OFFERING OR ENGAGEMENT.
20. Termination, etc.
20.1. Termination. You or POWR Inc may, at any time, with or without cause, terminate this Agreement and your participation in the Affiliate Program or use of any other POWR Inc Offering. You may affect such termination through your Affiliate Program Publisher Account Area or by written notice to POWR Inc subject to actual receipt thereof.
20.2. Restricted Use. Alternatively, POWR Inc may, at any time, with or without notice, in its sole discretion, suspend, limit, restrict, condition or deny your access to or use of all or any part of the Affiliate Program or any POWR Inc Offering.
21. Effects of Termination
21.1. Termination. Upon any termination of this Agreement and/or your participation on the Affiliate Program:
a. You shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by you, any and all Qualifying Links and all other Content or materials provided to you in connection with your participation in the Affiliate Program or your use of any other Offerings.
b. Any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate.
c. POWR Inc may terminate or, in its sole discretion, direct or redirect to any destination Site any and all Qualifying Links continued to be used by you without POWR Inc or any Affiliate Program Advertiser incurring any further liability or obligation to you.
d. Any and all confidential or proprietary information of POWR Inc (including as applicable any confidential or proprietary information of Affiliate Program Advertisers as and to the extent originally provided by POWR Inc) that is in your possession or control must be immediately returned or destroyed, at POWR Inc’s sole discretion. If requested, you will certify in a writing signed by you or an authorized officer as to the return or destruction of all such confidential or proprietary information.
21.2. Fees. POWR Inc may withhold and offset any fees or other charges owing to POWR Inc against any and all compensation and/or other fees that are then unpaid to you. Following assessment of any fees or other charges owing to POWR Inc, and subject to POWR Inc holding any amount it determines in its sole discretion to be needed to support any of your indemnification and/or other obligations and/or liabilities under this Agreement, POWR Inc may refund any remaining monies to any of the Affiliate Program Advertisers with which you had entered into an Engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that POWR Inc or any Affiliate Program Advertiser may have in contract, at law or in equity.
21.3. Survival. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. Sections 1.4, 4.2, 5.3, 5.5, 6.2, 6.3, 6.4, 8, 9.2 10, 12 and Sections 16 through 22, respectively and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement.
22.1. Independent Contractors. The parties are independent contractors and not partners, joint venturers. Other than in respect of the obligation of POWR Inc to pay over promptly to you any payments POWR Inc receives from a Affiliate Program Advertiser as agent for payment to you, nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect or cause either party to have a fiduciary relationship to the other.
22.2. Force Majeure. POWR Inc shall not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, lockouts or other industrial disputes, earthquakes, interruptions in telecommunications services or internet facilities, or any other cause which is beyond the reasonable control of POWR Inc, whether or not similar to the foregoing.
22.3. Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
22.4. Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
22.5. UN Convention. This Agreement shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods.
22.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, U.S.A., without regard to its conflicts of law principles.
22.7. Informal Dispute Resolution. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, the parties agree, at the request of either party, to appoint representatives to meet in good faith within thirty (30) days of such request, in order to resolve the dispute.
22.8. Arbitration. Except for actions seeking equitable or injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement, that is not resolved pursuant to Section 22.7 (Informal Dispute Resolution) shall be referred to and finally resolved by arbitration administered by the International Institute for Conflict Prevention and Resolution (“CPR”), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each party shall designate one, with the third arbitrator to be designated by the two party-appointed arbitrators. Such arbitration shall be conducted in San Francisco in the English language. The arbitrators shall establish procedures under which each party will be entitled to conduct discovery and shall award to the prevailing party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys’ fees. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators shall award only such damages as are permitted to be awarded pursuant to this Agreement. The arbitrators must render their award within 30 days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to this Agreement that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration. Notwithstanding the foregoing, either party shall be entitled to apply to any court of competent jurisdiction for injunctive relief, without bond, to restrain any actual or threatened conduct in violation of this Agreement or to specifically enforce any party’s obligations under this Agreement.
22.9. Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter. You have not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of POWR Inc before you entered into this Agreement, and you waive all rights and remedies which, but for this clause, might otherwise be available to you in respect of any such representation, warranty, collateral contract or other assurance. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
22.10. Notices. POWR Inc may provide notices to you by posting notices or links to notices in your Affiliate Program Publisher Account Area. Notices to you also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for the Affiliate Program. If you provide notice to POWR Inc, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: POWR Inc, 44 Tehama Street, San Francisco CA 94105. Notices sent by email or facsimile, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of a POWR Inc Service Provider.
22.11. Language. This Agreement may be translated into different language versions and, except as provided by applicable law, the English language versions of this Agreement and Affiliate Program Policies are the controlling versions thereof and shall prevail.
22.12. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor POWR Inc will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.