Last Updated: December 20, 2019
For purposes of this Agreement, the following terms have the following meanings:
- ‘Commissions’ means monetary payments made to you in relation to sales by Customers from Merchants.
- ‘Customer’ means a user of the Website that is referred to a Merchant via the Service and/or interacts with Merchants by purchasing goods and/or services.
- ‘Merchant’ means a party that supplies goods and/or service to Customers and which has an affiliate program or other means of communicating to VigLink the associated Commissions.
- ‘Service’ means the provision to you of the Software and access to Merchants.
- ‘Software’ means the VigLink software that facilitates the automated and online referral by you of a Customer to a Merchant and records the sales activity between such referral and Merchant.
The above language is intended for illustration purposes and should not be interpreted to restrict the scope of destinations that VigLink deems monetizable (e.g. Merchants) nor the forms of monetizing (e.g. Commissions for sales by Customers).
Subject to the terms and conditions of this Agreement, VigLink grants you a non-exclusive, non-transferable, non-sub-licensable license to use the Software and Service on the Website during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. VigLink retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.
Responsibility for the Website
You will be solely responsible for all matters related to the content, operation and maintenance of the Website, including, but not limited to: (i) creating and posting Merchant descriptions and links on the Website and linking to Merchant websites; (ii) the accuracy and appropriateness of all materials posted on the Website (including, but not limited to, all information regarding Merchants and Merchants’ products and/or services); (iii) ensuring that all materials posted on the Website do not infringe or misappropriate any third party intellectual property rights; and (iv) ensuring that all materials posted on the Website are not defamatory or otherwise illegal. You represent, warrant and covenant that you shall comply with applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including without limitation laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003),, as well as any applicable Merchant terms and conditions and policies, in each case to the extent applicable to your operation of the Website and use of the Service and Software, including, without limitation, those regarding the disclosure of a material relationship inherent in the links on the Website.
Additional Domain Name Requests
If you wish to use the VigLink products for any additional website(s), then you may request that such website(s) are added to your account by notifying VigLink support at email@example.com. VigLink may approve or reject each domain request at its discretion. If VigLink decides to reject a domain request, it is not obliged to provide you with its reasons for doing so. If VigLink approves a domain request, it will notify you by email, and you may begin using the VigLink products in relation to such additional website(s). Should the additional domains be added without VigLink approval, VigLink can at its discretion reverse all commissions earned.
You acknowledge and agree that (i) VigLink uses its sole discretion in determining which Merchants the Website will be affiliated with, as well as the number of Merchants (if any) the Website will be affiliated with; (ii) VigLink may (through the Software and with your permission) re-write links on the Website from one Merchant to another in order to obtain the best value for you; (iii) Merchants set their Commission structures and may change their Commission structures (generally or solely with respect to you) or terminate their involvement in the Service (generally or solely with respect to you) at any time and VigLink will have no control over or liability in connection with any Merchant’s decision to do so; and (iv) Merchants may at any time send VigLink notice requesting that you remove links or references to Merchants’ brands, products, services or trademarks and VigLink will communicate this notice to you.
Commissions and Payment
VigLink will be the ‘publisher of record’ for all Merchant affiliate programs, and will collect all commissions received from Merchants on account of referrals from the Website. VigLink will pay you a Commission equal to (i) a percentage of revenues (the “Applicable Percentage”) that VigLink receives from Merchants on account of referrals from the Website (“Merchant Revenue”) minus (ii) any Chargebacks (as defined below) and any other commission cancellations, reversals or deductions administered or by determination of VigLink with respect to any referrals from the Website (collectively, “Deductions”), provided that you use VigLink tracking. The Applicable Percentage may be revised by VigLink from time to time without notice. Payment will be issued to you at the end of each month for all Commissions earned by you that correspond to Merchant Revenue that VigLink has received up to that point. There is a monthly minimum of $10.00 for payout. We will collect all relevant details for tax purposes as necessary and specified by the tax code. A Merchant may determine, in its sole discretion, that any sale was not a bona fide transaction, whether goods are returned by the Customer or otherwise (a ‘Chargeback’), and may make a Chargeback claim requesting certain Commissions be canceled or reversed to reflect the fact that the Merchant’s business never benefited from the transaction. Chargebacks are communicated to VigLink as they occur. Merchant Revenue is typically paid by Merchants, and Chargebacks are typically determined, within sixty (60) days but can fall outside of this, from the applicable sale; however, you acknowledge and agree that VigLink is not required to pay any Commission to you until VigLink has actually received the corresponding Merchant Revenue, and that you will be solely responsible and pay VigLink for (and VigLink may deduct from any Commission payments to you) the full amount of any Chargebacks and other Deductions, regardless of when such Chargeback or other Deduction is claimed by the Merchant. Commissions earned are solely the result of Merchant’s evaluation and approval of referrals from the Website and VigLink has no say nor visibility into how these referral transactions are evaluated and approved, nor why a referral transaction was disallowed or not paid on. You agree that different Merchants use different Merchant Revenue calculations based on fixed amounts per sale, CPA “cost per action”, CPC “cost per click”, bounties, or other percentage based methodologies (without limitation). You are encouraged to review all Merchant affiliate program terms and conditions. Any and all requests and appeals for payment or rationale behind click- affiliation are NOT the responsibility of VigLink, nor does VigLink have any duty to help you solve the issue of affiliate payments. While VigLink offers to cover the cost of some payment types, you are solely responsible for any fees charged by your bank or other provider for receiving payments from VigLink. Further, should payments be returned or rejected, VigLink will assess fees directly or deduct against your account balance.
You will indemnify, defend and hold harmless VigLink and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys’ fees and disbursements) resulting from or based upon (i) any claim that the Website infringes or misappropriates any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from your use of the Service or Software, unless due to VigLink’s negligence or willful misconduct. VigLink will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in these terms of service; (c) your use of any Content, whether or not such use is authorized by or violates these terms of service, or applicable law; (d) your violation of any term or condition of these Terms of Service; or (e) your or your employees’ negligence or willful misconduct.
Data Protection and Privacy Obligations
California Consumer Privacy Act of 2018
To the extent the Services involve consumer data protected by the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General (“CCPA”) (“Contracted Business Purposes”), you agree to the following:
- With respect to the Contracted Business Purposes, you are “Business” subject to the requirements and obligations of the CCPA.
- As of the effective date of the CCPA, you agree and certify that you give consumers any and all notices required under the CCPA at the time of personal information data (“PI”) collection and that this notice, among other things, includes a “Do Not Sell My Personal Information” link to your webpage for submitting opt-out requests.
- You comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information.
- You understand, agree, and certify that a consumer whose PI is collected while a notice of right to opt-out notice is not posted shall be deemed to have validly submitted a request to opt-out.
- If applicable, you agree and certify that you provide a notice of financial incentive that explains to consumers the financial incentive or price or service differences a business might offer in exchange for retaining or selling a consumer’s PI that complies with the following: (i) the notice contains a description of the incentive or price/service differences, including what PI they implicate; (ii) the notice instructs consumers how to opt-in, and later opt-out; and (iii) the notice explains how you calculate the value of PI that is used for the financial incentive or price/service difference.
- If you are not the source of the PI, you represent and warrant that you have obtained attestations from the actual source of the PI containing terms substantially similar to the terms in this Section.
- You warrant that you have no reason to believe any CCPA requirements or restrictions prevent you from providing any of the Contracted Business Purposes or otherwise performing under this Agreement, and you must promptly notify Viglink of any changes to the CCPA’s requirements that may adversely affect your performance under this Agreement.
- The terms of this Section shall remain in full force and effect while you use the Contracted Business Purposes, and any right or obligation in this Section will survive termination of this Agreement for two (2) years.
Disclaimer of Warranties
THE SOFTWARE AND THE SERVICE ARE PROVIDED ‘AS IS.’ VIGLINK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE MERCHANTS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. VIGLINK EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT VIGLINK MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.
Limitation of Liability
IN NO EVENT WILL VIGLINK BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL VIGLINK’S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE COMMISSIONS PAID TO YOU BY VIGLINK UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS.
Term and Termination
This Agreement will commence upon its execution and will continue until terminated by either you or VigLink upon at least five (5) business days\ prior written notice to the other party. In the event of termination of this Agreement for any reason other than your breach of this Agreement, VigLink will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of, and promptly remove from the Website, all instances of the Software and the Service and promptly return to VigLink, or at VigLink’s request destroy, any and all copies of the Software, Service or other information relating to the intellectual property of VigLink in your possession. Sections 1, 4, 7, 8, 9, 10, 11 and 12 will survive termination of this Agreement for any reason.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the laws of the State of California. Any dispute relating in any way to the VigLink Program or Terms of Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of California, without regard to principles of conflict of laws, will govern any dispute of any sort that might arise between you and Viglink. 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 Operating Agreement as a court would. The parties 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.
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