ActivTrak Affiliate Marketing Program Agreement

ActivTrak Affiliate Marketing Program Agreement

The ActivTrak Affiliate Marketing Program Agreement (the “Agreement”) is a legal agreement between the entity or individual identified in the Order (the “Affiliate”) and Birch Grove Software, Inc. dba ActivTrak (“ActivTrak”). Your participation in the ActivTrak Affiliate Program (the “Affiliate Program”) is subject to the terms of this agreement. If you do not agree with any term or condition of this Agreement, you may not continue with the registration process or further participate in the Affiliate Program.

The parties agree that ActivTrak may update or modify this Agreement from time to time upon notice to Affiliate. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. If we modify or replace the terms of this Agreement, then we or the Affiliate Tool will let you know via electronic means, which may include an in-app notification or by email. If you do not agree to the update or replacement, you can choose to terminate as we describe below and discontinue all participation in the Affiliate Program.

Definitions

“ActivTrak Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.

“ActivTrak Materials” means the materials provided to the Affiliate by ActivTrak in connection with the Affiliate Program and include, but are not limited to, ad copy, promotional copy, editorial, images, creatives, third-party ad serving tags, links and advertising placements.

“ActivTrak Products” means both the ActivTrak Service and Other Products.

“ActivTrak Service” or “Service” means our web-based workforce analytics software that is subscribed to, and developed, operated, and maintained by us, accessible via http://www.ActivTrak.com or another designated URL, and add-on products to our workforce analytics software. For the purposes of this Agreement, the Service does not include our legacy sales products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“ActivTrak Website” means www.activtrak.com, signup.activtrak.com and app.activtrak.com.

“Affiliate” means any person or legal entity that has completed the signup process and is a participant of the Affiliate Program.

“Affiliate Lead” means a potential customer of the ActivTrak Service who is referred to ActivTrak through Your Affiliate Link and has been approved by ActivTrak.

“Affiliate Link” means the unique tracking link you place on your site or promote through other channels that leads to the ActivTrak Website.

“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.

“Affiliate Program” means the ActivTrak Affiliate Marketing Program as described in this Agreement.

“Affiliate Property”, “Affiliate Website”, and “Your Website” means a website, mobile application, or email template that the Affiliate owns or controls and which You register for the Affiliate Program.

“Affiliate Tool” means Commission Junction LLC.

“Agreement” means this ActivTrak Affiliate Program Agreement and all materials referred or linked to in here.

“Brand Features” means each party’s trade names, trademarks, logos, domain names, and other distinct brand features.

“Commission” means the one-time fees that may be payable by ActivTrak to the Affiliate as described in the Affiliate Tool.

“Customer” means the authorized actual user of the ActivTrak Products who has purchased or signed up with a business domain for the ActivTrak products after being an Affiliate Lead.

“Customer Data” means all electronic data submitted by or on behalf of Customer to the Service.

“Customer Transactions” means those transactions by Affiliate Leads that are approved by ActivTrak for Commission pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions may include customer purchases or trial signups, as further described in the Affiliate Tool.

“End User” means an authorized user of the ActivTrak Service, who registers for a free/paid account on the ActivTrak Website.

“Other Products” means those products and services that we offer, which are not included in the ActivTrak Service (as detailed above); and, for the purposes of this Agreement, Other Products include any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“Territory” means the ActivTrak Affiliate Program is currently available to members based in the countries of the United States, Canada and the United Kingdom.

“We”, “us”, “our”, and “ActivTrak” means Birch Grove Software, Inc. dba ActivTrak.

“You” and “Affiliate” means the party, other than ActivTrak, entering into this Agreement and participating in the Affiliate Program.

Affiliate Qualification & Participation

To participate in the ActivTrak Affiliate Program, You must apply through the Affiliate Tool and be accepted by ActivTrak into the Affiliate Program.

Once you apply, you will be notified if you are accepted to the program or if additional information is needed. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected and you may not participate in the Affiliate Program.

To apply, You must:

• Own and run an active website or social media account with consistent traffic and an audience intending to engage with products or services that help businesses
• Create original content with themes that are related to ActivTrak and its users
• Have read and agreed to the ActivTrak Affiliate Program Agreement

You agree to provide Your full legal name, a valid email address, the valid domain name(s) of Your Website, and all other information requested in order to complete the signup process on the Affiliate Tool.

If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.

Your acceptance and participation in the Affiliate Program does not mean that you will be accepted into any of our ActivTrak Partner Programs, including our Reseller Program or our MSP Program. In order to participate in these programs, you will need to apply in accordance with the relevant application procedure.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

License

ActivTrak grants You a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable, revocable license to display and promote the ActivTrak Service on Your Website, in accordance with the terms herein, from the date of ActivTrak’s acceptance of You into the ActivTrak Affiliate Program (“Effective Date”) until the termination of this Agreement as set forth herein.

Program Requirements and Restrictions

Your activities to promote the ActivTrak Service must reflect favorably upon ActivTrak and the ActivTrak Service. You agree to use the most current ActivTrak Materials made available by ActivTrak to You and update the information related to the ActivTrak Materials on Your Website at least once a year. You will not make any false or misleading statements concerning the ActivTrak Service or make any representations concerning the ActivTrak Service specifications, features, capabilities and applicable warranties which are inconsistent with the product descriptions or promotional materials we make available to You.

ActivTrak has the right, but not the obligation, to monitor Your Website. You agree to remove or disable any content or promotional materials related to the ActivTrak Service from Your Website upon our request.

You agree to use ActivTrak trademarks, banners, the content, and any images provided to You by ActivTrak in accordance with our brand guidelines and without variation.

You agree to maintain a privacy policy on Your Website that clearly and adequately describes how personal data is collected and used and fully complies with applicable laws, including with limitation the California Consumer Privacy Act and the Telephone Consumer Protection Act. The privacy policy must fully and adequately disclose your use of third-party technology, use of cookies and options for discontinuing use of such cookies.

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

Paid Search or Pay Per Click (PPC) bidding is not allowed without prior written approval. Use of any and all ActivTrak branded search terms, trademarked terms, or any branded URLs (derivatives and misspellings included) is prohibited. Affiliates are not allowed to bid on branded terms of ActivTrak competitors and direct to ActivTrak’s branded sites. This includes any and all combinations, variations, misspellings or misspelling variations. Further, use of keywords or copy containing terms that might reflect negatively on ActivTrak’s brand (e.g., cheap) should not be used. If the Affiliate wants to explore ads with the ActivTrak brand, they must first reach out to the ActivTrak affiliate management team for approval. You understand and agree that ActivTrak may, at its sole discretion, correct or reverse Commissions and/or terminate you from the Affiliate Program for any violations of these or any other terms of this Agreement.

We require, and You expressly agree, that You will not:

• Promote ActivTrak or the ActivTrak Service on any gambling websites, websites with adult, hate, violent, defamatory content, or any other content that ActivTrak considers offensive or inappropriate, or in any manner violates the rights of any Third Party, or that violates any Applicable Laws. Upon our request, You agree to provide to ActivTrak any information regarding traffic sources, promotional channels, or Your promotional methods with regard to the ActivTrak Service.
• Perform any fraudulent activities, commit or attempt to commit fraud or any other harmful actions during your participation in the Affiliate Program.
• Use any content, screenshots, or screengrabs of the ActivTrak Website or ActivTrak Service without our written consent.
• Will not, and will not allow any third party to: (i) ‘frame’, minimize, remove or otherwise inhibit the full and complete display of any ActivTrak web page, (ii) cause any hyperlinks to web pages on the ActivTrak Website to create a new browser window, or (iii) otherwise display ActivTrak web pages in a distorted or diluted fashion.
• Will not, and will ensure that third parties under its control do not, create or incentivize the creation of content that is designed, or could be construed to be intended, to manipulate search engine rank. If ActivTrak Materials used by the Affiliate include links, a ‘no follow’ attribute must be applied or steps must be taken to ensure the links have no value for search engine optimization.

You warrant, represent, and covenant that You:

• Will not use the Affiliate Program for any illegal or unauthorized purpose
• Will ensure that You are compliant with any and all trade and regulatory requirements that may apply to Your participation in the Affiliate Program (for example, by clearly stating You are a ActivTrak Affiliate on Your Website where You make an Affiliate Link available
• Will not market ActivTrak trials as discount offers/coupons
• Will not purchase ads that direct to Your Website(s) or any Third Party site or through an Affiliate Link that competes with ActivTrak’s advertising, including, but not limited to, our branded keywords
• Will comply with all applicable laws and regulations
• Will not participate in cookie stuffing
• Will not use or create any false or misleading links
• Will not SPAM
• Will not mask or attempt to mask the referring URL information
• Will not use Your Affiliate Link to purchase the ActivTrak Service for yourself, Your relatives, or employees
• Will not use fraudulent mechanisms to generate traffic, including, but not limited to, sourcing Affiliate Leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation software (including but not limited to robots, frames, or hidden frames) or offering non-approved incentives to encourage purchases or signups.

You agree to provide us with documentation and information reasonably requested within five (5) working days to investigate unauthorized or potentially fraudulent activities associated with Your Account or Your Affiliate Links.

Commissions

Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Tool from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission as described in the Affiliate Tool for each new Affiliate Lead who completes an applicable Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of the first purchase or sign up (as applicable) of the ActivTrak Service by the Customer with a business domain and you will receive a Commission payment for that Customer Transaction only, regardless of any additional transactions and purchases made by that customer or other customers with the same business domain during their ActivTrak Service. For example, if the initial Customer Transaction is for one user of the ActivTrak Service, and there is a subsequent transaction or purchase by that same customer or business for an additional user, the Affiliate will receive Commission for the initial user purchase only. The Affiliate will not be entitled to receive Commission on any additional transactions and purchases of ActivTrak Products by that Customer or business domain, including without limitation any renewals or purchases of other products or services.

Eligibility. To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred. You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us; (iii) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Affiliate Program, or (v) the Affiliate Lead or Customer participates in any of our partner programs, including our Reseller Program or MSP Program, and is eligible to receive commission in relation to the Customer Transaction under any of these programs. If at any point you are eligible to receive a revenue share payment or commission under another Program at ActivTrak, that payment amount will not change based on your participation in the Affiliate Program. For example, you will not be able to receive the Commission set out in this Agreement on any Partner Transaction that was completed whilst participating as a partner in the ActivTrak Reseller Program or ActivTrak MSP Program. In competitive situations with other Affiliates, we may elect to provide the Commission to the Affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.

Acceptance and Validity. You will only be eligible for a Commission payment for any Affiliate Leads or Customer Transactions that derived from the Affiliate Link that we make available to you. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination:

1. it is a new potential customer of ours in the Territory
2. it is from a registration with a business email
3. it is not a current or previous customer
4. it is not, at the time of submission, an individual or entity previously registered as a lead in ActivTrak’s CRM system
5. it was not previously registered as a lead by an ActivTrak Reseller or MSP
6. it is not a customer purchasing the ActivTrak Service via a Reseller or through a MSP
7. it is not an entity that ActivTrak is prohibited by law from doing business with
8. it was not previously registered as a lead by another member of the Affiliate Program
9. it is not the Affiliate, its related entities and any of their representatives, agents or employees
10. it is not a representative, agent, or employee of ActivTrak or its affiliates

Notwithstanding the foregoing, ActivTrak may choose not to accept an Affiliate Lead for any reason, at its sole discretion. If an Affiliate Lead does not purchase the ActivTrak Service within the time period described on the Affiliate Tool of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired.  An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated. Engagement with Prospects.  Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between ActivTrak and an Affiliate Lead will be at ActivTrak’s discretion.

Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement through the Affiliate Tool; (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you.

Commission Payment. Notwithstanding anything to the contrary contained herein, all Commissions due to the Affiliate under this Agreement will be subject to, and paid through the Affiliate Tool pursuant to, the Affiliate Tool terms. ActivTrak will not be liable to the Affiliate for any failure on the part of the Affiliate Tool to pay the Affiliate any Commissions once the Affiliate Tool receives from ActivTrak fully payment of the Commissions and its fees. Commission Amounts. We reserve the right to alter or change the Commission amount as per the Affiliate Tool.

Proprietary Rights

ActivTrak’s Proprietary Rights. No license to any software is granted by this Agreement. The ActivTrak Products are protected by intellectual property laws. The ActivTrak Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the ActivTrak Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the ActivTrak Content, or the ActivTrak Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use ActivTrak Content, you must comply with any usage guidelines that we may provide from time to time. ActivTrak, the ActivTrak logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.

We encourage all customers, Affiliates and partners to comment on the ActivTrak Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the ActivTrak Products, without payment to you.

Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with the ActivTrak Products. For the avoidance of doubt, Customer will own and retain all rights to the Customer Data.

Confidentiality

The Affiliate may not disclose the terms, conditions or existence of any non-public aspect of the Affiliate Program to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with law.

Term and Termination

This Agreement is effective upon registration on the Affiliate Tool (“Effective date”), and remains in effective until terminated by either party. Either party may terminate this Agreement for convenience upon written notice to the other party.

You may terminate Your participation in the Affiliate Program at any time through the Affiliate Tool.

Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) working days written notice to us, provided that you send us written notice within ten (10) working days after we send you notice of the change.

Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from Your Website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision ActivTrak with Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Referral Partner Program (for example, by clearly stating you are an Affiliate on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with ActivTrak’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own Affiliate Link to purchase ActivTrak products for yourself; and (vii) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.

Indemnification

The Affiliate will defend, indemnify and hold harmless ActivTrak, its affiliates, directors, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees) and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (i) the Affiliate’s participation in the Affiliate Program; (ii) the Affiliate Property and the Affiliate’s Brand Features; (iii) the Affiliate’s breach of this Agreement, including without limitation any representation or warranty in this Agreement; or (iv) Affiliate’s negligence or intentional misconduct.

Disclaimers; Limitations of Liability

Disclaimer of Warranties. WE AND OUR AFFILIATE COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE ACTIVTRAK PRODUCTS, ACTIVTRAK CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE ACTIVTRAK PRODUCTS AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE ACTIVTRAK PRODUCTS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.

Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, ACTIVTRAK SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

General

Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://www.activtrak.com/marketing-affiliate-agreement. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

Applicable Law. This Agreement shall be governed by the laws of the state of Texas, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Travis County, Texas.

Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, pandemic, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.

Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the ActivTrak Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the ActivTrak Products to prohibited countries or individuals or permit use of the ActivTrak Products by prohibited countries or individuals.

Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) days for international deliveries).
To you: your address as provided in our Affiliate account information for you. We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the ActivTrak Products or dependent on any oral or written public comments made by us regarding future functionality or features of the ActivTrak Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the ActivTrak Products, our trademarks, or any other property or right of ours.

Sales by ActivTrak. This Agreement shall in no way limit our right to sell the ActivTrak Products, directly or indirectly, to any current or prospective customers.

Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.