a. “Advertisements” means all form of marketing including as examples direct marketing, search marketing, digital advertising, sponsorship messages, banner advertisements, buttons, toll-free numbers and other promotional items developed for online and direct promotions.
b. “Applicable Law” means all laws and regulations that exist in any jurisdiction in which either Party’s business is performed and in which any duties or obligations of this Agreement are to be performed which may include, but not be limited to, laws and regulations governing advertising, contact with a consumer or prospect, data sharing, or any transactions that are engaged in as contemplated under this Agreement, including as examples: (i) the CAN-SPAM Act of 2033, 15 U.S.C. § 7701 et seq. (ii) Data Privacy Laws and laws pertaining to the sharing of PII; (iii) Intellectual Property laws, such as the Lanham Act; and (iv) Truth in Advertising laws and regulations.
c. “Claim” means third party actions, complaints, demands and claims, and any and all losses, costs, damages, expenses, liabilities, court costs and reasonable legal fees, and settlements, resulting from therefrom.
d. “Confidential Information” means any and all nonpublic business or technical information disclosed by a Party hereto (a “Disclosing Party”) to the other Party hereto (a “Receiving Party”) in connection with this Agreement including information concerning the Disclosing Party’s past, present and future customers, suppliers, technology, and business, and any other information identified as confidential, including without limitation know-how, data, technology, trade secrets, processes, techniques, programs, programming interfaces, designs, formulae, marketing, advertising, financial, commercial, sales or programming materials, written materials, compositions, drawings, diagrams, computer programs, studies, work in progress, visual demonstrations, ideas, concepts, and other data, in oral, written, graphic, electronic, or any other form whatsoever. Notwithstanding the foregoing, Confidential Information does not include: i. Information which is generally known to the public when received by the Receiving Party or which subsequently becomes generally known to the public through no fault of the Receiving Party; ii. Information which is already known to the Receiving Party at the time of its disclosure and is not the subject of an obligation of confidence of any kind; iii. Information which is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; iv. Information which is rightfully received by the Receiving Party from a third party without an obligation of confidence; and v. Information that is required to be disclosed by law, provided that the Receiving Party gives prompt notice of such requested disclosure to the Disclosing Party (to the extent legally permitted) and complies with any valid protective order obtained by the Disclosing Party.
e. “Consumer Information” means the data collected by Affiliate which can be used to distinguish or trace an individual's identity, such as their name, address, email address, IP Address, biometric records, etc. alone, or when combined with other personal or identifying information which is web linked or web linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc., and information about any consumer who connect to an Affiliate web property, which may include, but not be limited to, the time, date, duration and destination of the connection, the type of network a consumer subscribes to, and any other personal information that Affiliate receives about such consumer and that may be considered PII under Applicable Law.
f. “Customer” means a Referral who completes a purchase as the result of Affiliate’s Marketing efforts performed pursuant to this Agreement.
g. “Intellectual Property Rights” means any and all proprietary rights provided under patent law, copyright law, trademark law, design patent or industrial design law, semi-conductor chip or mask work law, trade secret law, or any other similar statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing.
h. “Mark” means a trademark or service mark of a Party hereto.
i. “Marketing Efforts” means the ad copy, lead generation techniques, websites, landing pages, call script, collateral and other means by which Affiliate performs marketing services under this Agreement and in accordance with Section 3, including the Rules of Engagement.
j. “Referral” means any consumer who arrives at website or online market place for which Lemon Squeezy acts a merchant as the result of Affiliate’s Marketing Efforts.”
k. “Referral Fees” means any fees earned by Affiliate under this Agreement for a Referral that becomes a Customer.
l. “Rules of Engagement” means those rules that Affiliate must follow at all times in the performance of the Referral Services, as provided to Affiliate from time to time (email is sufficient), a copy of which has been provided to Affiliate with this Agreement.
m. “Sub-Affiliate” means any third party working under the control of, or in association with, Affiliate for purposes of sourcing or generating Lead Data.
2. LEMON SQUEEZY SERVICES
Lemon Squeezy’s only obligations are to provide the Lemon Squeezy Affiliate Program, pursuant to which Lemon Squeezy:
a. Provides Affiliate access to, and information about, marketing campaigns for which Affiliate may generate Referrals.
b. Provides Affiliate a code to be used by affiliate as an online tracking link to track Referrals sent to Lemon Squeezy by Affiliate.
c. Provides Referrals with available offers to purchase the advertised products online.
3. USE OF MARKETING EFFORTS AND RULES OF ENGAGEMENT
a. Affiliate acknowledges that Affiliate’s right to participate in the Affiliate Program is subject to and conditioned upon Affiliate’s strict adherence to brand guidelines, approved Marketing Efforts, and Rules of Engagement of Lemon Squeezy. Accordingly, a material, critical and ongoing condition of this Agreement is Affiliate’s compliance with the Rules of Engagement which are incorporated by reference as if fully set forth herein, and the pre-approval of Affiliate’s Marketing Efforts by Lemon Squeezy in accordance with the provisions of this Agreement.
b. Telemarketing activities as part of the Marketing Efforts are strictly prohibited.
c. In the event Affiliate conducts email marketing activities as part of the Marketing Efforts, Affiliate represents and warrants to Lemon Squeezy that Affiliate has read and agrees to be bound by Lemon Squeezy’s Email Marketing Rules which are incorporated by reference as if fully set forth herein.
d. Affiliate shall not violate any Applicable Law, whether local, state, federal or international or perform any activity that would cause Lemon Squeezy to violate any law, statute or regulation or result in liability or potential liability to Lemon Squeezy. Lemon Squeezy may, in its reasonable discretion, determine when a violation of this provision has occurred. Upon notification of a violation of this provision, Affiliate agrees to immediately suspend the offending Referral Service or Marketing Effort until the Parties have resolved the issue to Lemon Squeezy reasonable satisfaction.
4. REFERRALS AND RESTRICTIONS ON REFERRALS
a. All of Affiliate’s Referrals shall come from Affiliate or Sub-Affiliate, and not from any other third parties who provide referral services. Any Sub-Affiliate must be pre-approved in writing by Lemon Squeezy (email is sufficient) and must agree to be bound by each and every provision of this Agreement including all applicable Rules of Conduct, Telephonic Marketing Rules, and Email Marketing Rules; and except for any pricing or other provisions that are confidential between Affiliate and Sub-Affiliate, Lemon Squeezy shall be entitled to see that portion of Affiliate’s agreement with Sub-Affiliate, which binds the Sub-Affiliate to the terms of this Agreement. For purposes of clarification, notwithstanding the approval by Lemon Squeezy of any such Sub- Affiliate(s), Affiliate will be and remain primarily liable for the acts and/or omissions of all such Sub-Affiliate(s), and agrees to indemnify, defend, and hold Lemon Squeezy harmless to the fullest extent permitted in law or equity against any Claim arising from any action or omission of the Sub-Affiliates.
b. Affiliate will not hold itself out as Lemon Squeezy or agent of Lemon Squeezy except as allowed in approved Marketing Efforts which have been approved by Lemon Squeezy in writing as provided more fully in Section 3, and otherwise in applicable Rules of Conduct, Telephonic Marketing Rules, and Email Marketing Rules.
c. Affiliate will not make any representations regarding Lemon Squeezy’s products or services, other than those expressly approved in writing or distributed by Lemon Squeezy.
d. Contact information of all Referrals will be treated as Lemon Squeezy Confidential Information in accordance with the confidentiality provisions of this Agreement. In addition, each of the Parties agrees not to disclose such information in a manner that would violate any Applicable Laws.
5. REFERRAL FEES AND PAYMENT TERMS
a. Lemon Squeezy shall pay the Referral Fees set forth in Schedule 2 as set forth in Schedule 1.
b. Accompanying all payments, Lemon Squeezy will provide to Affiliate a statement itemizing the basis for its calculation of the Referral Fees.
c. Upon execution of this Agreement, Affiliate agrees to 1% platform fee for each payout sent from Lemon Squeezy to Affiliate.
d. Upon execution of this Agreement, Affiliate will complete and return IRS form W-9 to Lemon Squeezy.
e. Upon execution of this Agreement, Merchant agrees to 2% platform fee for each referral made via the Lemon Squeezy affiliate platform.
6. TERMS AND TERMINATION
a. The term of this Agreement will begin on the Effective Date and continue for a period of one (1) year (the “Initial Term”). Thereafter, the Agreement will continue automatically for additional periods of one (1) year each (each, a “Renewal Term,” and, together with the Initial Term, the ”Term”), unless either Party terminates the Agreement by providing thirty (30) days’ written notice prior to the termination of the applicable Term.
b. Lemon Squeezy may terminate this Agreement immediately by written notice to Affiliate if Lemon Squeezy reasonably determines in its sole discretion that Affiliate has failed to comply in all respects with the Rules of Engagement or is engaged in improper or unapproved Marketing Efforts or Referral Services.
c. Except as provided in Section 6.e., either Party may terminate this Agreement by providing written notice of termination, in the event that the other Party breaches any term of this Agreement and the breaching Party fails to cure the breach within ten (10) business days of the date that the breaching Party receives written notice from the non-breaching Party identifying the breach and demanding a cure, and the breaching Party fails to cure the breach within the cure period.
d. Upon the expiration or termination of this Agreement for any reason, each Party will immediately deactivate all phone numbers, order entry tools and referral links to the other Party’s web property. Any and all other obligations under this Agreement which, by their very nature, should reasonably survive the termination or expiration of this Agreement, will so survive. Each Party will, at the request and expense of the other, provide reasonable assistance to affect an orderly termination.
e. Termination by Bankruptcy. To the extent permitted by applicable law, this Agreement shall automatically terminate without notice in the event that (i) a receiver, trustee, liquidator, administrator, administrative receiver or a similar person should be appointed for either party or its property, (ii) either party should become insolvent or unable to pay its debts as they mature or cease to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors, (iii) any proceedings should be commenced against either party under any bankruptcy, insolvency, or debtor's relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof, or (iv) either party should be liquidated or dissolved.
f. If Lemon Squeezy is prevented from providing any portion of Lemon Squeezy’s services under this Agreement by any law, regulation, requirement, or ruling issued in any form whatsoever by judicial or other governmental authority, or if a notice from a governmental agency or department indicates Lemon Squeezy is not permitted to provide any portion or all of Lemon Squeezy’s services to be provided, then either party may terminate this Agreement, without being subject to any termination liability, upon thirty (30) days' prior written notice to the other party
7. CONFIDENTIAL OBLIGATIONS
a. During the Term of this Agreement and for a period of two (2) years, each Party will hold all Confidential Information disclosed by the other Party in confidence, using the same degree of care that it uses to protect its own Confidential Information of like importance but in no event less than a reasonable degree of care.
b. Each Party may, however, disclose Confidential Information on a “need-to-know” basis under an obligation of confidentiality to its employees and professional advisors, provided that such employees and advisors comply with the provisions of this Section.
c. The terms and conditions of this Agreement will be deemed to be the Confidential Information of each Party and will not be disclosed without the written consent of the other Party.
d. The terms and conditions of any Lemon Squeezy agreement or similar agreement of Lemon Squeezy and which is provided to Affiliate for review, will be deemed to be the Confidential Information of Lemon Squeezy.
e. Upon the termination of this Agreement, each Party will return to the other all Confidential Information of the other which is then in its possession or control.
f. Each Party acknowledges that its failure to comply with the provisions of this Section may cause irreparable harm to the other Party which cannot be adequately compensated for in money, and accordingly acknowledges that the other Party will be entitled to seek, in addition to any other remedies available to it, interlocutory and permanent injunctive relief to restrain any anticipated, present or continuing breach of this Section without having to post a bond or other security.
a. All business processes, marketing techniques or technology used by a Party to fulfill its obligations hereunder shall at all times be, and shall be deemed to be, solely the property of such Party, including all of their patents, copyrights, trademarks, trade secrets and other Intellectual Property Rights therein.
b. Except as it pertains to the limited rights of one Party to use the Marks of another Party, no rights in any intellectual property are conveyed in this Agreement.
9. REPRESENTATIONS AND WARRANTIES OF AFFILIATE
a. Affiliate represents and warrants that it has the full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.
b. Affiliate: (i) maintains an up-to-date understanding of all Applicable Laws related to the provision of its services to Lemon Squeezy pursuant to this Agreement; (ii) has relied on competent legal counsel to advise Affiliate regarding compliance with Applicable Laws; and (iii) is in compliance, and will remain in compliance, with all Applicable Laws during the Term.
c. Affiliate’s provision of services hereunder does not, and will not, infringe any intellectual property rights of Lemon Squeezy or any Third Party.
10. REPRESENTATIONS AND WARRANTIES OF LEMON SQUEEZY
a. Lemon Squeezy represents and warrants that: (i) it has the full corporate power and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) in performing this Agreement, it will comply in all material respects with all Applicable Laws and regulations.
b. NO WARRANTIES. ACCESS TO THE SERVICE AND AFFILIATE PROGRAM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. AFFILIATE IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICE OR AFFILIATE PROGRAM INCLUDING INACCURATE OR INCOMPLETE INFORMATION.
a. Mutual Indemnities. Each Party agrees to defend, indemnify and hold the other Party and its directors, officers, employees and contractors (including Lemon Squeezy) harmless from and against all Claims arising from or in connection with:(i) the Party’s material breach or non-performance of any provision of this Agreement; (ii) the Party’s breach of any of its representations or warranties in this Agreement; (iii) any personal injury or damage to property caused by such Party or its employees or contractors in connection with its performance of this Agreement. The indemnified Party shall promptly notify the indemnifying Party of any Claims, and the indemnifying Party shall have the right to defend such Claim with counsel of its choosing. At the request of an indemnifying Party, the indemnified Party shall reasonably cooperate in the defence and settlement of such Claim at the indemnifying Party’s expense.
12. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS OF PROFIT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT WITH REGARD TO VIOLATIONS BY EITHER PARTY OF (I) THE RULES OF ENGAGEMENT, TELEPHONIC MARKETING RULES, EMAIL MARKETING RULES, AND MARKETING EFFORTS; (II) ANY OBLIGATION OF INDEMNITY; (III) ANY MISREPRESENTATION REGARDING ANY REPRESENTATION OR WARRANTY SET FORTH HEREIN; OR (IV) ANY OBLIGATION OF CONFIDENTIALITY (THE “EXCLUDED CLAIMS”). FOR ALL BUT THE EXCLUDED CLAIMS EACH PARTY’S LIABILITY TO THE OTHER PARTY HEREUNDER WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO AFFILIATE OVER AN IMMEDIATELY PRECEDING 12-MONTH PERIOD, CALCULATED AS OF THE DATE THAT THE VIOLATION AROSE.
13. INDEPENDENT CONTRACTORS
Nothing in the Agreement shall be deemed to constitute a partnership or joint venture between Affiliate and Lemon Squeezy. No Party or their respective employees, agents, customers, or subcontractors shall be deemed an employee, agent, customer, or subcontractor of the other Party by virtue of the performance of the services set forth in this Agreement. Under no circumstances shall a Party’s employees, agents, customers, or subcontractors, be entitled to any benefits which the other Party may offer to its own employees, agents, customers, or subcontractors from time to time.
All notices and other correspondence to be served under this Agreement, whether as notice of process or otherwise, shall be made in writing and shall be sufficiently be deemed given on the date received by (i) certified mail (postpaid and return receipt requested), or (ii) Federal Express or comparable overnight courier of national reputation with proof of receipt with a copy vie email. Any required notices or correspondence shall be sent to the address and contact names set forth in the Signature Page or such other address and contact name as provide by one Party to the other Party with the subject line: NEW CONTACT INFORMATION FOR NOTICES.
15. MISCELLANEOUS PROVISIONS
a. Lemon Squeezy may assign this Agreement to an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, Lemon Squeezy.
b. The failure of either Party to exercise any right provided for herein shall not be deemed to be a waiver of any other right hereunder. No waiver of any right or breach of this Agreement shall be deemed to be a waiver of any subsequent exercise of a right or breach of this Agreement. No waiver of any right of obligation in this Agreement may be made except through a writing signed by the waiving Party.
c. Neither Party shall be liable to the other for any loss or damage which may be suffered by the other due to any cause beyond the Party’s reasonable control including, but not limited to, any failure of third-party software, telephone or database systems, act of God, pandemic or epidemic, terrorism, inclement weather, failure or shortage of power supplies, power outages, flood, drought, lightning or fire, strike, lock-out, trade dispute or labor disturbance, the act or omission of government, telecommunications operators or administrators or other competent authorities, war, military operation, or difficulty, delay or failure in manufacture, production or supply by third parties of materials or equipment necessary to carry out this Agreement.
d. This Agreement shall be governed by and construed in accordance with the laws of the Utah without regard to its conflict-of-law rules. The Parties hereby consent to the exclusive jurisdiction of the state or federal courts located in Utah for resolution of disputes arising out of this Agreement.
e. If any term of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that will not affect: (a) the legality, validity or enforceability in that jurisdiction of any other term of this Agreement; or (b) the legality, validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
f. This Agreement, all rules incorporated by reference, and the schedules annexed hereto constitute the entire Agreement between the Parties regarding the subject matter hereunder and supersede all prior and contemporaneous representations, proposals, discussions, and communications, whether made orally or in writing. This Agreement may be modified or amended only in writing signed by each of the Parties.
g. A person who is not a party to this Agreement shall not have any third-party rights under this Agreement.
h. This Agreement may be executed and delivered in any number of counterparts by facsimile or electronic mail, all of which taken together will constitute one and the same agreement.