The following Terms and Conditions (“Terms and Conditions”), shall govern the relationship between Digital Moses, LLC doing business as DMShuk (“Company”) and you ("You" or “Champion”) using the services offered through Company’s website (the "Website"), and applying to participate, and once approved by Company, participating in the Company’s affiliate program for Simon Sinek, Inc. (the “Program”), and will serve as a legal binding agreement (“Agreement”). Champion and Company may also be individually referred to herein as a "Party" and collectively as "Parties." You agree to use the Website, and participate in the Program only in accordance with this Agreement. Company reserves the right to make changes to the Website and this Agreement at any time and without any prior notification. The latest Agreement will be posted on the Website. Champion’s continued use of the Website after any such modification and notification thereof (which may be provided by email to the email address provided in the course of Champion’s registration with Company) shall constitute Champion’s consent to such modification.
For purposes of this Agreement, “Champion” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Company to use the Website. If You do not agree to this Agreement in its entirety, You are not authorized to: (a) apply or register to participate in the Program as a Champion; or (b) once approved by Company, use the Website, or participate the Program in any manner or form whatsoever.
1. Membership and Approval.
1.1. Minimum Eligibility Requirements.
Champion and all of its websites, affiliated websites and email distribution lists (collectively the “Media”) must continually meet the criteria listed below.
1. All Champions that wish to send advertisements via email must have the consent of the consumer to send such Ads (defined in Section 2.1 below) via email including, without limitation, permission based opt-in databases that must maintain functional unsubscribe mechanisms;
3. Unless otherwise approved in writing by Company, Champion may not offer incentives to users as means to enhance the performance of the Program, incentives include, without limitation, awarding cash, points, prizes, contest entries, etc.;
4. The Media must be fully functional at all levels;
5. The Media must be content-based and not simply a list of links or advertisements, nor can the websites be centered around making money off of the Advertiser;
6. The Media must contain English language content only, except in the event of an incidental use of a foreign language;
7. The Media must have a top-level domain name and not be personal web pages, community based website personal entry or FREE hosted pages (i.e. Geocities, Zoom, Tripod, Talk City, etc.);
8. The Media shall not promote, advocate, facilitate, have links to or otherwise include any of the following: (i) profanity or violence; (ii) sexually explicit materials; (iii) hate material or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status; (iv) investment, money-making opportunities or advice not permitted under law; (v) material that defames, abuses, is libelous, tortuous or threatens physical harm to others, (vi) material that displays any telephone numbers, street addresses, last names, URLs, email address or any confidential information of any third party; (vii) material that impersonates any person or entity; (viii) any indication that any statements You make are endorsed by Company or Advertiser, without Company and/or Advertiser’s specific prior written consent; (ix) promotion of illegal substances or activities; (v) content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xiii) gambling, contests, lotteries, raffles or sweepstakes; (xiv) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; or (xv) any other materials deemed unsuitable or harmful to the reputation of Company, at Company’s sole discretion;
9. The Media must not promote illegal activities or violations of the intellectual property rights of others or any other rights including, without limitation, false advertising, unfair competition and invasion of rights of publicity or privacy;
10. The Media must be compliant with the CAN-SPAM Act of 2003, as amended and must not violate any applicable U.S. state or federal law, rule or regulation, Canadian provincial or federal law, EU directives and regulations and/or the laws of any foreign jurisdiction in which You operate;
11. The Media must not promote activities generally understood as Internet abuse or any software, product or service including, without limitation, adware, spyware, programs designed to send unsolicited advertisements (i.e. spamware), programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet, spawning process pop-ups, exit pop-ups, software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, illegal MP3 activity;
13. Champion and the Media shall meet such other criteria as Company may from time to time determine, in its sole discretion.
2. Use of the Website.
2.1. Company will provide Champion with information and creative content about Advertiser (collectively, the “Ads”), which Champion should use in its promotion efforts, including for (i) publication on Champion’s Media and/or any other websites published with, owned, operated and/or controlled by Champion, (ii) distribution in email messages sent to those email addresses listed in Champion’s database and/or any other database affiliated with, owned, operated and/or controlled by Champion, (iii) on social media websites, and/or (iv) other marketing channels approved by Company. Compensation is derived from the sale of Advertiser’s course (the “Product”), which results from a user clicking through a link provided by Company or Advertiser to Champion ("Event"), as more specifically described in section 7 below. If Champion is approved to participate in the Program, Champion agrees to place the Ads on Champion’s Media and/or in Champion’s emails. Champion may not use any creative materials, other than the Ads, to promote Advertiser; however, Champion may add truthful statements of its own about Advertiser, so long as Champion complies with the Code of Conduct. Champion shall display the Ads exactly as they appear on the Website and will not alter them in any way. Further, no scripts, images, graphics, links, copy or processes for generating Events other than the Ads may be used by Champion nor may Champion edit or modify the Ads without first obtaining the prior express written permission of Company. Failure to adhere to these requirements may, in addition to all other remedies available to Company, result in termination of Champion. You may cease participation in the Program at any time upon prior written notice to Company. Company is responsible for displaying and administering the Program and tracking the payments owed based upon the applicable Event. Program data compiled by Company including, without limitation, numbers and calculations regarding the Program and Events (“Program Data”) will be calculated by Company through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system, otherwise the Program Data will be deemed to be accurate and accepted by You. Champion understands and agrees that on occasion the Website and Program may be inaccessible, unavailable or inoperable for any reason, including, without limitation, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Company will attempt to provide the Website and the services contained therein on a continuous basis. However, Champion acknowledges and agrees that Company has no control over the availability of the Website to be on a continuous or uninterrupted basis. This Agreement is subject to Company hardware, software, and bandwidth traffic limitations. Company’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
2.2. Special Rules Governing Email Campaigns.
a) All emails sent by Champion in connection with the Program must include Champion content (i.e., content promoting Champion, Champion’s website or Champion’s own goods and services) as well as the Ads promoting Advertiser;
c) Champion must clearly indicate that the emails are sent from Champion, and may not use Advertiser’s name (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Advertiser identifying information in the originating or return email address line, header or subject line of any Champion email transmission and/or email based Ad transmission unless otherwise directed to do so by Advertiser in writing;
d) No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for domain accounts, email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Champion and/or its email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization;
e) Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. Champion may only use approved subject lines available provided by Advertiser or subject lines for which Champion has documented approval from Advertiser. The subject line must accurately represent Advertiser Product depicted within the email;
f) Email Ads Must Contain Clear Identification. Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means. Further, Champion must identify itself as the initiator and sender of the email including its name, email and physical address;
g) Effective Method of Opting Out of Future Mailings. Champion must give the recipient the ability to send a reply message to unsubscribe, opt-out via postal letter and provide a functioning unsubscribe link that must remain in operation for at least thirty (30) days from the date of the original email transmission and within the body of the email, include a valid physical street address associated with the sending party that received the opt-in;
h) All unsubscribe requests must be adhered to within ten (10) business days from their receipt. You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally;
i) No Random or Invalid Generation of Email Addresses. Champion is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or “scraping” websites or online services. Champion must have full opt-in data for all recipients in its database;
j) Champion may use only email addresses with the name of the sending party that received the opt-in, and not use the non-sending party’s name in any mail-from or reply-to email addresses (e.g. “from” lines need to accurately identify Champion as the sender of the email); and reply-to address must be a functioning email address where sender can be contacted;
k) Champion agrees that prior to emailing any campaign it will use its most recent suppression file(s), and will suppress all email addresses within its database that are found on such list.;
l) Contact Information. Emails shall include valid and responsive contact information of Champion. This contact information shall include Your valid physical postal address and, optionally, Your phone number. Company reserves the right to add such address(es) should Champion fail to include same, but Company is in no way responsible for including such address(es) where Champion fails to do so;
n) Company strictly forbids Champion email and/or email-based Ads sent for the purpose (but not necessarily the sole purpose) of harvesting email address(es) in order to send future unsolicited commercial emails;
o) Champion emails must not promote illegal activities or violations of the intellectual property rights of others or any other rights including, without limitation, false advertising, unfair competition and invasion of rights of publicity or privacy; and
p) Champion may not use any search marketing techniques in connection with its participation in the Program.
2.3 Code of Conduct
a) Champions are prohibited from using paid search to bid on Advertiser’s trademark terms, misspellings or any variations thereof (e.g., Simon Sinek, Why University, Start With Why, Discover Your Why). Champions will face immediate termination from the Program and the withholding of payment if they are found to be in violation of this policy.
b) Champion agrees that it shall not, unless it has received written authorization from Advertiser:
(i) Induce persons to click on Ads based on financial incentives (e.g., rewards programs) without the prior written approval of Advertiser.
(ii) Resell any Ads to other web sites, publishers or other third parties.
(iv) Send any incentivized traffic in any way, including offering monetary rewards, points, prizes, sweepstakes, etc. to users registering for these offers.
(v) Launch any campaign without approval from Advertiser.
c) Champions may not make any changes to the Ads without the express prior written consent of Advertiser.
d) The following methods of generating visitor interest in the Ads are prohibited and may be grounds for immediate termination, in addition to other remedies available to Advertiser and/or Company: mailing emails to persons other than those persons who have requested to receive such emails (i.e., spamming); use of unsolicited email or inappropriate newsgroup postings to promote the Ads; auto spawning of browsers; or automatic redirecting of visitors; blind text links; misleading links, forced clicks (a person should never be forced to click on an Ad because their browser has been hijacked, or because an Ad has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.
e) Without the prior written approval of Advertiser, Champion may not purchase keywords from search engine providers in order to drive traffic to the Ads or landing pages, including but not limited to purchasing keywords that include the trademark, service mark or brand name of Advertiser and related properties, or purchasing online advertising inventory for purposes of running advertisements that include Advertiser trademarks on websites or within emails.
f) Champion may not personally make purchases or generate leads using their own affiliate links and expect payment.
g) When posting or communicating with its contacts or members of the public about Advertiser and/or the Product, Champion must always disclose its relationship with Advertiser and tell them it is participating in the Program. Such disclosure of Champion’s “material connection” with Advertiser, as required by the FTC’s Revised Endorsement and Testimonial Guides, must be clear and conspicuous. If Champion is promoting Advertiser and/or the Product on a forum with limited space such as Twitter, Champion must use an appropriate hashtag notation to make the disclosure such as “#paid”.
h) Any claims that Champion makes about Advertiser, and/or the Product, must be truthful and must reflect its personal experience or views. If Champion does not personally purchase and use Advertiser’s Product, Champion may not say that it does.
i) Champion cannot imply more of a relationship between itself and Advertiser than what is created by its participation in the Program. For example, it may not hold itself out as an employee or authorized representative of Advertiser.
j) Champion may use social media websites to advertise and distribute the Ads provided that Champion adheres to any applicable terms and conditions of the social media websites and that Champion does not engage in any Internet abuse activities such as spyware, adware, hacking or phreaking. In the event of any breach by Champion of section of the Agreement, Company shall immediately terminate Champion’s membership, Champion shall forfeit its rights to any amounts owed by Company to Champion and Company may report all activities in violation of this section to the applicable social media profiles and applicable federal, state or local authorities.
Company may monitor, on its own or with the assistance of third parties, the Champions for compliance with this Agreement, without limiting the generality of the foregoing:
3.1. All Champions monitored by Company (or a third party retained by Company for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with Company.
3.2. Champion may not send emails to names already on or newly added to its unsubscribe list. Champion must scrub against its unsubscribe list at least every three (3) days.
4. License. Upon Company’s approval of Champion’s application and provided Champion adheres to the Terms and Conditions outlined in this Agreement, Company grants to Champion a revocable, non-transferable, and non-exclusive limited license to use the Website (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Website Data”) solely for the purpose of marketing or promoting the Program hereunder.
4.1. Links. Champion agrees to use the links in the exact form delivered to Champion. Champion agrees not to modify, alter, delete, or adapt the links in any manner without Company’s prior written approval. Links must be served from Company’s server. Champion shall not take any actions to impede the action of or to disable any such links. Champion agrees, if requested by Company, to modify or alter links or tracking devices in the manner requested by Company. Champion further agrees that it shall in no event modify or interfere with tracking devices unless specifically instructed to do so by Company in accordance with the previous sentence.
4.2. Ownership. Champion acknowledges and agrees that Champion does not have, nor will it claim any right, title or interest in the Website software, applications, data collected and derived through the activities countenanced pursuant to this Agreement, methods of doing business or any elements thereof, or any content provided on the Website (including the Program, Ads and links). Champion may only access the Website via web browser, email or in a manner approved by Company. Champion will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Champion acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. If instructed to do so by Company and/or if Champion shall be terminated by Company, Champion will immediately destroy and discontinue the use of any Company data, including Website Data, and any other material owned by Company or the Advertiser.
Further, Company may choose to imbed certain data mining tools within links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of Company. Company may, from time to time, opt to share data derived from Data Miners with Champion to help Champion optimize the quality of leads generated from Champion’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Company does share data derived from Data Miners with Champion, Champion agrees that this data will be used solely by Champion for the purposes for which it is provided to Champion and will not be shared by Champion with any other third party or entity without the prior written approval of Company.
4.3. Confidential Information. Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving Party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof so as to afford the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing Party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services including customer information. Notwithstanding the foregoing, Champion agrees that Company may divulge its personal and/or otherwise Confidential Information to an agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Champion has violated this Agreement or any applicable law or regulation.
Champion agrees that Champion will not approach or attempt to engage in a contract with any of Company’s clients including Advertiser, (each such client, individually a “Client” and all such clients, collectively “Clients”), directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Company will promptly reply in writing to any inquiries received from Champion regarding the status of any person or entity as a Company Client so as to aid Champion in its efforts to comply with the non-solicitation provisions of this Agreement. Because Company will be irreparably harmed by Champion’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Champion agrees that Company shall be entitled to injunctive relief precluding Champion from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such conduct by Champion.
6. Fraud. Company actively monitors traffic, Events, and other Program-related activities for potential fraud. If fraud is detected, Champion’s account will be made inactive immediately and with no notice to You pending further investigation. Fraud traffic includes, without limitation, adding leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Company or use of Websites in co-registration campaigns that have not been approved by Advertiser); click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or lead generation programs generating clicks or leads with no indication by Website traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertiser; used any incentives to procure clicks or leads; provided leads obtained other than through intended consumer action without prior written approval of Company. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Program.
If Champion commits fraud as described above and as determined solely by Company, You will forfeit Your entire commission for all Events and Your account will be terminated effective immediately. In addition, in the event that Champion has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Champion. If Champion is notified that fraudulent activities may be occurring on Champion Media, and Champion fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Company, Champion shall be responsible for all costs and legal fees arising from these fraudulent activities. Company reserves sole judgment in determining fraud, and You agree to be bound by any and all such determinations. It is the obligation of Champion to prove to Company that You have not engaged in fraud.
a) Filling out this form constitutes an agreement between Company and Champion. Except as otherwise provided in a Company Purchase Order, Champion will earn a commission payment of $100 for each Event, which is defined as the purchase of a Product by a user who clicked through a link posted by Champion on the Media, and supplied by Advertiser or Company, subject to the requirements below.
b) Company agrees to pay Champion only if a user has accessed Advertiser’s shopping cart page, and purchased the Product via a Qualifying Link.
c) “Qualifying Links” are links from Champion’s Media to Advertiser using one of the URLs provided by Advertiser or Company for use in the Program if it is the first link to Advertiser that the user uses during a Session where sale of the Product occurs. A “Session” is a short period from the time of a user’s initial contact with Advertiser via a Qualifying Link from Champion’s Media.
d) All determinations of Qualifying Links and whether a commission is payable will be made by Company.
e) Company reserves the right to withhold or reverse commissions or cancel this Agreement if Champion has engaged in fraudulent activity, including but not limited to the Champion making purchases using their own “Qualifying Links” and expecting a commission from those purchases.
f) Company reserves the right to withhold payment from Champion if Champion is engaged in activity that is deceptive or fraudulent in nature as determined by Company in its sole discretion.
g) Champion will be paid for the Events in U.S. Dollars. Company shall pay any amounts due approximately thirty (30) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breach by Champion of this Agreement, Champion shall forfeit its rights to any amounts owed by Company to Champion. Company reserves the right to reduce any payments owed to Champion as a consequence of any offsets taken by Advertiser for invalid Events, technical errors, tracking discrepancies and the like. Company shall compile, calculate and electronically deliver data required to determine Champion’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Champion. Company will not pay for any Events that occur before Champion’s participation in the Program is initiated, or after the Program terminates. Invoices submitted to Company and payments made to Champion shall be based on the Events as reported by Company. Company will not be responsible to compensate Champion for Events that are not recorded due to Champion’s error and any errors or undesirable results occur in connection with recording or calculating Events and associated payments due to no fault of Company, Company shall not be responsible for any associated losses. Company will require a Champion to provide a W-9, and similar such information, as a condition to payment.
h) Champions may not use co-registration campaigns to generate Events.
8. Term and Termination.
This Agreement shall commence upon Company’s acceptance of your Champion application and remain in effect until terminated as set forth herein. Either Party may terminate this Agreement upon three (3) business days’ advance notice to the other Party. In the event either Party in good faith believes that the other Party is in violation of applicable law or in breach of any Terms and Conditions of this Agreement, such Party shall have right to terminate the Agreement immediately upon written notice to the other Party. Company further reserves the right to terminate this Agreement and Champion’s participation in the services hereunder without prior notice to Champion.
Termination notice will be provided via email and will be effective immediately, meaning, among other things, that Champion must immediately cease all advertising activities, remove from Champion Media the Ad, Event, Program and any other intellectual property made available to Champion in connection with its performance under this Agreement. All moneys then due to Champion will be paid during the next billing cycle. The representations, warranties and obligations contained in this Agreement shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
9. Representations and Warranties.
9.1. Mutual Representations. Each Party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with this Agreement; (b) there is no outstanding contract, commitment or agreement to which it is a Party that conflicts with this Agreement; and (c) at all times while the Program remains in effect, it shall comply with all applicable laws and regulations. Neither Party makes any guarantee, representations nor warranties express or implied, as to the level of consumer response that will result from the Programs.
9.2. Champion Representations. Champion represents and warrants that it will adhere to all of the Terms and Conditions contained in the Agreement all applicable Company rules and policies as well as that:
1. You will not, nor knowingly permit any person to, use third party trademarks in any way to direct traffic to any Champion Media or Advertiser websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of Company, Advertiser and/or any of their respective affiliates or clients;
2. Champion owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Champion’s Media;
3. Your Champion Media is and shall remain at all times during the term hereof, in compliance with any and all applicable rules and policies set forth by Advertiser in connection with the Program;
4. You will not use the Website in any manner other than that which is specifically contemplated herein;
5. You are not, nor are You acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, You are not, nor are You acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time. In addition to all other rights and remedies available to Company under this Agreement, and at law and in equity, Your breach of this Section shall result in immediate termination of Your Champion account and forfeiture of any and all compensation previously paid and/or owed to You under this Agreement;
6. You will be solely responsible for the development, operation and maintenance of Champion Media and for any and all materials that appear therein. Such responsibilities include, without limitation: (i) the technical operation of the Champion Media and all related equipment; (ii) creating and posting content, descriptions and references on or through the Champion Media; and (iii) the accuracy and propriety of materials posted on or through the Champion Media;
7. Your execution, delivery and performance of the Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which You are subject; (ii) any order, judgment or decree applicable to You; (iii) any provision of Your corporate by-laws or certificate of incorporation, if applicable; or (iv) any agreement, alleged agreement or other instrument applicable to You;
8. You will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Website Data provided by or obtained from Company that allows Company to measure the performance of Program, calculate Events and Event compensation;
9. You will not “frame” or “mirror” any part of the Website, without obtaining prior express written authorization from Company; and
10. While an approved Champion and for one hundred eighty (180) days thereafter, participate in any performance based advertising relationship with Advertiser within Company’s network, unless a previously existing business relationship between Advertiser and Champion can be demonstrated to the reasonable satisfaction of Company. In this connection, both parties agree and acknowledge that if Champion violates its obligations hereunder, Company will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by such Advertiser through the advertising or marketing efforts of Champion; and
11. Champion shall at no time, engage in, disseminate, promote or otherwise distribute, any Company marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Champion and any of its business affiliates, publishers, etc. In the event that Company discovers that Champion is engaging in, disseminating, promoting or otherwise distributing, any Company -related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company -related contextual marketing campaigns, making payment only on legitimate earnings of Champion as accrued through the date and time of termination. Champion agrees and acknowledges that if it violates its obligations under this Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
9.3 Champion Covenants
Champion covenants that it shall:
1. Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards; and
2. Provide within one (1) business day after request there from, the IP Information, together with such other related information that Company may request. Failure to provide such information may result in termination or suspension of the Champion and/or the deactivation of all links in the Program.
Champion acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Company, result in the immediate suspension or termination of Company’s relationship with Champion and Champion shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Champion acknowledges and agrees that Company shall not be responsible for the Advertiser’s violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.
10. Customer Information; Non-Disclosure
Any and all information submitted to Champion by an end-user customer in connection to the Program is considered proprietary information to and owned by Company, its affiliates, publishers and/or the Advertiser. Such customer information is confidential and may not be utilized or otherwise disclosed by You. In addition, You acknowledge that all non-public information, data and reports made available by Company hereunder or otherwise as part of the Website is proprietary to and owned by Company. All proprietary and Confidential Information (as defined herein) is protected by copyright, trademark and other intellectual property laws. Champion agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary or Confidential information in any manner. Champion shall maintain such data in a secure manner, consistent with industry standards.
11. Proprietary Rights.
Subject to the Agreement, Company grants to Champion a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Champion Media and/or other approved marketing channels, the Ads, and any and all associated trademarks, service marks, tradenames and/or copyrighted material (“Intellectual Property Content”) that Company provides to Champion through the Company’s Website for the limited purposes of promoting Advertiser to end users. Champion may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the Website, Program and Ads are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Champion of any part of the Website, Program, and/or Ads, other than as expressly permitted hereunder, are strictly prohibited. Champion does not acquire any ownership rights to the Website, Program, and/or Ads. The availability of the Website, Program, and Ads does not constitute a waiver of any rights related thereto. No part of the Website may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website, Website content or any portion thereof. Company reserves any rights not explicitly granted in the Agreement.
12. Limitation of Liability; Disclaimer of Warranty.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY SUB-CHAMPIONS OR CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATED TO YOUR USE OF THE WEBSITE, WEBSITE DATA, PROGRAM, OPERATION OF A PROGRAM, AD, ADVERTISER’S UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY ADS OR EVENTS ON OR THROUGH YOUR CHAMPION MEDIA AND/OR ANY OTHER COMPANY INTELLECTUAL PROPERTY INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S MAXIMUM AGGREGATE LIABILITY TO CHAMPION AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. CHAMPION RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.
THE WEBSITE, ADS, EVENTS, PROGRAMS, WEBSITE DATA, ADVERTISER’S UNDERLYING PRODUCTS AND SERVICES, INFORMATION AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE WEBSITE, ADS, EVENTS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISER’S UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY HAS NO LIABILITY, WHATSOEVER, TO CHAMPION OR ANY THIRD PARTY, FOR CHAMPION’S USE OF, OR INABILITY TO USE, THE WEBSITE, ADS, EVENTS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT CHAMPION’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PROGRAM WILL BE AVAILABLE TO CHAMPION. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CHAMPION. THE WEBSITE, ADS, OFFERS, PROGRAMS, WEBSITE DATA AND/OR ADVERTISER’S UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO CHAMPION WITHOUT SUCH LIMITATIONS. COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE WEBSITE, ADS, EVENTS, WEBSITE DATA AND/OR PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CHAMPION FROM COMPANY THROUGH THE WEBSITE, ADS, EVENTS, WEBSITE DATA AND/OR PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
13.1. Indemnity. Champion will defend, indemnify, and hold harmless Company, the Advertiser, and their respective affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from (i) Your improper use of the Website, Program, Events and/or any Ads, (ii) any third party claim related to Your Champion Media and/or Your marketing practices; (iii) any third party allegation or claim against Company and/or the Advertiser relating to a violation of any and all state and federal laws or the laws of Your jurisdiction; (iv) any content, goods or services offered, sold or otherwise made available by You on or through the Champion Media, other marketing channels or otherwise; (v) any claim that Company is obligated to pay any taxes in connection with payment made to You in connection with the Agreement and/or the Program; (vi) breach and/or violation of this Agreement, and/or any representation or warranty contained herein; and/or (vii) Your use of the Website, Program, Events and/or any Ads, in any manner whatsoever
13.2. Notification of Legal Action. Champion will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
14. Force Majeure.
Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any Terms and Conditions of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including but not limited to fire, floods, failure of communications systems or networks, embargoes, war, acts of war (whether war is declared or not), acts of terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the other Party; provided, however, that the Party so affected shall use reasonable commercial efforts to avoid or remove such causes of non-performance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either Party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure. The Parties shall mutually seek a resolution of the delay of the failure to perform as noted above.
15.1. Entire Agreement. These Terms and Conditions constitute the entire Agreement between the Parties and supersede all prior agreements or understandings between the Parties.
15.2. Controlling Law. This Agreement shall be governed by the laws of the United States and the State of New York without respect to choice of law rules. The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. At the request on Company, arbitration proceeds will be conducted in secrecy. In such case all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Company or Champion and by their respective attorneys and their respective experts who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Arbitrator shall be able to decree any and all relief of an equitable nature including, without limitation, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection to, arising out of, or under the Agreement. The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both parties rights to jurisdiction in their respective states or countries. You waive the personal service of any process upon You and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. Company shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser and Arbitrator is authorized to award such fees. Nothing contained in the Agreement shall be construed to limit any legal remedies available to Company.
15.3. Waiver. No waiver by either Party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
15.4. Assignment. Company, may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Company, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Company, at its sole discretion, immediately terminating the Agreement and/or Your participation in the Program, without any liability to Company. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
15.5. Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
15.6. Relationship. The parties agree that Company is acting as an independent contractor in performing the Website and that the relationship between the Company and Champion shall not constitute a partnership, joint venture or agency. Neither Champion nor any of Champion’s employees or agents (collectively referred to herein as the “Employees”) (i) is an employee, agent or legal representative of Company, or (ii) shall have any authority to represent Company or to enter into any contracts or assume any liabilities on behalf of Company. Company retains all the rights and privileges of sole employer of its employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such employees. Neither Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Champion employees.
15.7. No Publicity. Champion may not make any mention of Company or any Company client in any publicity materials advertising or otherwise presenting information on Champion Media and your services, including, without limitation, listing Company or any of its clients in your customer lists, without the written consent of Company, whose consent may be withheld for any reason or for no reason.
15.8. Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Champion at the address provided in the registration, and (b) Company at 475 Kent St. #805 Brooklyn, NY 11211.
15.9 Ability to Enter into Agreement. By executing this Agreement, Champion warrants that Champion (or Authorized Representative of Champion) is at least 18 years of age, and that there is no legal reason that Champion cannot enter into a binding contract
15.10. Ability to Perform. You agree that Company may require a financial accounting and inspection of Your books and records including, but not limited to, access to Your computer databases, in order to verify and corroborate financial information regarding the relationship established hereunder. You hereby authorize Company to obtain credit reports regarding Your business and to require You to provide it with reasonable information regarding your financial position.
By filling out and submitting the Champion Application Form, you acknowledge that you have read and agree to the Terms & Conditions of the Start With Why Champion Program.