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Partnership Program Operating Agreement. This Partnership Program Operating Agreement (the "Agreement") is made and entered into by and between Cuddle Clones ("Cuddle Clones" or "we"), and you, ("you" or "Partner") the party submitting an application to become a Cuddle Clones Partner). The terms and conditions contained in this Agreement apply to your participation with cuddleclones.com ("Partnership Program"). Each Partnership Program offer (an "Offer") may be for any offering by Cuddle Clones or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Partnership Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement
You must submit a Partnership Program application. You must accurately complete the application to become a partner (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Partnership Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
Subject to our acceptance of you as a Partner and your continued compliance with the terms and conditions of this Agreement, Cuddle Clones agrees as follows:
Except as otherwise provided in this Agreement or with the consent of Cuddle Clones, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our Partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Partnership Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Partner shall not use any information obtained from the Partnership Program to develop, enhance or operate a service that competes with the Partnership Program, or assist another party to do the same.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Partnership Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or the Cuddle Clones logo, graphics, creative, or other materials owned by, or licensed to, Cuddle Clones in any way. Manipulation of graphics may be performed only to add in information related to a Partnership account, such as unique coupon code or unique tracking link. You are only entitled to use the Links to the extent that you are a member in good standing of the Partnership Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Cuddle Clones’ trademarks, service marks, copyrights, patents or trade secrets. You agree that Cuddle Clones may use any suggestion, comment or recommendation you choose to provide to Cuddle Clones without compensation. All rights not expressly granted in this Agreement are reserved by Cuddle Clones.
This Agreement shall commence on the date of our approval of your Partnership Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Partnership Program at any time by 1) providing written notice of cancelation via email to [email protected] and 2) by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Cuddle Clones or Client intellectual property, and will cease representing yourself as a Cuddle Clones or Client Partner for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement Cuddle Clones reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) Cuddle Clones determines that you have violated this Agreement, (ii) Cuddle Clones receives any complaints about your participation in the Partnership Program which Cuddle Clones reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Partnership Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Cuddle Clones reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the Partnership Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Partnership Program that you submit the final version of your email to Cuddle Clones for approval by sending it to your Cuddle Clones representative and upon receiving written approval from Cuddle Clones of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon Cuddle Clones’ approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon Cuddle Clones’ approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Partners or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Partnership Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or clickfraud. Cuddle Clones shall make all determinations about fraudulent activity in its sole discretion.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Cuddle Clones represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Cuddle Clones’ own business operations or Cuddle Clones’ proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Partnership Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, Cuddle Clones may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Partner agrees to promptly implement any request from Cuddle Clones to remove, alter or modify any Link, graphic or banner ad that is being used by Partner as part of the Partnership Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Partnership Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Partnership Program.
Partner hereby agrees to indemnify, defend and hold harmless Cuddle Clones and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Partner herein, (ii) any misuse by Partner, or by a party under the reasonable control of Partner or obtaining access through Partner, of the Links, Offers or Cuddle Clones or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links). Cuddle Clones hereby agrees to indemnify, defend and hold harmless Partner and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that Cuddle Clones is not authorized to provide you with the Links.
THE PARTNERSHIP PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO PARTNER "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUDDLE CLONES EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CUDDLE CLONES DOES NOT WARRANT THAT THE PARTNERSHIP PROGRAM OR LINKS WILL MEET PARTNER'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PARTNER PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. CUDDLE CLONES EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. CUDDLE CLONES DOES NOT GUARANTEE THAT PARTNER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL CUDDLE CLONES BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF CUDDLE CLONES. IN NO EVENT WILL CUDDLE CLONES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT CUDDLE CLONES HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. CUDDLE CLONES’ CUMULATIVE LIABILITY TO PARTNER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO PARTNER BY CUDDLE CLONES IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
This Agreement will be governed by the laws of the State of Kentucky, without reference to rules governing choice of laws. Any dispute relating in any way to the Program or this Operating Agreement will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law and the laws of the state of Kentucky, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages),and must follow the terms of this Agreement as a court would. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
Partner shall be responsible for the payment of all attorney’s fees and expenses incurred by Cuddle Clones to enforce the terms of this Agreement. This Agreement contains the entire agreement between Cuddle Clones and Partner with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Partner agrees that Cuddle Clones shall not be subject to or bound by any Partner insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Cuddle Clones "clicks through" or otherwise indicates its acceptance thereof. Partner may not assign all or any part of this Agreement without Cuddle Clones’ prior written consent. Cuddle Clones may assign this Agreement at any time with notice to Partner. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting and application to Partnership Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Partnership Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 06-11-2018