Dreambly® Affiliate Program Agreement
This Affiliate Program Agreement (“Agreement”) will govern the relationship between you (“you”) and Dreambly, LLC, a Florida limited liability company (“Dreambly®”) with respect to the Dreambly® AffiliateProgram Agreement (“Program”) with respect to or in connection with Dreambly® products available at www.dreambly.com
(the “Site”). You and Dreambly® may also be individually referred to herein as “Party” and collectively as “Parties.”
If you have registered for or on behalf of an entity you are deemed to have accepted this Agreement on behalf of that entity.
TO BECOME A DREAMBLY® AFFILIATE PARTNER, YOU MUST AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY SIGNING AND SUBMITTING THE AFFILIATE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE PROGRAM OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
You agree to use the Site, the Program, the Materials, and any additional products and/or services offered by Dreambly® in connection with the Program only in accordance with this Agreement. Dreambly® reserves the right to make changes to the Site, the Materials, products and services offered by Dreambly®, the Program, and this Agreement at any time without prior notice and the revised version of the Agreement shall become effective immediately after being posted on the Site. Your continued use of the Program after any such modification thereof shall constitute your consent to such modification.
Joining the Dreambly® Affiliate Program:
1.Registration. To use (or continue to use) the Program, you must provide Dreambly® with truthful, accurate and complete registration information. If any such information changes, you must immediately update your registration information.
2. Registration Information. Dreambly® has the right to verify the truth and accuracy of any registration information at any time. Please be advised that if any information is determined by Dreambly® to be misleading, inaccurate or untruthful, Dreambly® may restrict, deny or terminate your account and/or your access and use of the Program; Dreambly® may also withhold payment of any commissions and/or other fees that may be or become due or payable to you, and may assess charges against such amounts for Dreambly’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
3. Eligibility to Join. To join the Dreambly® Affiliate Program, you must be either an entity or an individual who is at least 18 years old, and must provide at your expense your own computer equipment and internet access. One person or legal entity may not maintain more than one account. Accounts registered by “bots” or other automated methods are not permitted. Dreambly® may, in its sole discretion, refuse to register you as an Affiliate for the Program and/or terminate your participation in the Program at any time for any reason.
Defined Dreambly® Affiliate Program Terms:
1. “Affiliate” means a person that participates in the Program and, through such participation and use of the appropriate Materials, desires or makes itself available to display, distribute or place Qualifying Links for compensation.
2. “Affiliate Dashboard“ means the Program webpage(s) or other areas of the Site having the URL designated from time to time by Dreambly for use by Affiliates for the purpose of facilitating the formation of Qualifying Links, accessing reports and otherwise participating in the Program.
3. “Content” means information, data, text, documents, software, music, sound, photographs, graphics and video.
4. “Intellectual Property Rights” means technology, templates, designs, sites, domains, methodologies, processes, names, strategies, marks, logos, content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright, moral rights, database rights and other intellectual property and proprietary rights, whether or not registered, therein and thereto.
5. An “affiliate link” means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a web access device to display to its user a “banner,” “button,” text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain content, products, services or other offerings from the linked site.
6. “Materials” means materials provided by or on behalf of Dreambly® in the form of banner ads, HTML creatives, adverts, media kits, image files, print guidelines, downloadable files, technology, software, reports and databases, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
7. “Site” means, as the context requires, either (a) one or more web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the web or works on or in relation to the web, or (b) a person owning or operating any such Site, or (c) both. A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
8. A “tracked activity” means any type of pre-agreed or predefined activity or result in relation to a Qualifying Link. Tracked activities may include, by way of example, the serving of an image, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, the printing of a coupon (for offline redemption) or any other kind of action, transaction or activity that can be tracked and reported upon.
Dreambly® Affiliate Program Participation:
1. Participation is subject to the terms and conditions in this Agreement, and upon approval by Dreambly®, you have joined the Program as an Affiliate and may use the Materials made available to you by Dreambly®. Your participation is purely voluntarily and you may terminate your participation at any time. Dreambly® shall not be construed or deemed as having solicited, requested or procured you or your services to promote Dreambly® or its respective trade or business, or goods, products, property, or services.
2. Prohibited Activities. In respect of or in relation to any Site, or Content created by or for you, (or portion thereof) used by you in connection with your participation in the Program, you may not engage in any activity that is or constitutes, or that involves, facilitates, advocates, promotes or otherwise includes any Prohibited Activity. “Prohibited Activity” means any of the following activities: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability or any other unlawful basis under applicable law; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, violent, profane, sexually explicit or similar activities; (d) illegal gambling or investment, money-making opportunities or advice not permitted under law; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) offering of any media files and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights or otherwise infringing the Intellectual Property Rights of any third party; (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; or (j) fraudulent activities or impersonation of any person, including any Dreambly® representative, or misrepresentation of affiliation with any individual or entity.
3. Promotional Activities. You represent and warrant that all promotional means utilized by you (a) will not contain objectionable content (including, but not limited to, content that is misleading, illegal, and/or promoting illegal goods, services or activities), and (b) will not mislead others. You agree to promote the best interests of Dreambly® at all times in connection with the Program and to take no action that is likely to portray Dreambly® and/or Dreambly’s products or services in a negative light or put Dreambly® and/or Dreambly’s products or services into public disrepute, contempt, scandal or ridicule, or which insults or offends the community or any substantial organized group of the community, or which might tend to injure or damage the public image, reputation or success of Dreambly® or any of Dreambly’s products or services, such determination to be solely Dreambly’s.
Dreambly® Qualifying Affiliate Links:
1. Definition. A “Qualifying Link” means any type or format of link that is provided or authorized by Dreambly® to be displayed, distributed or placed on or by a Site pursuant to this Agreement and which, through addition and/or use of any technology and/or methodology, can be tracked so that Dreambly® can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link, such as affiliate marketing, performance-based linking and online-to-offline tracking of tracked activities. The term “Qualifying Link” shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a Qualifying Link.
2. Use of Qualifying Links. Each Qualifying Link used by you must include, in unaltered form, the Dreambly® tracking code or URL in the manner and format made available or otherwise dictated by Dreambly® or its designees.
3. Valid Referrals Only. You will place or use Qualifying Links only with the intention of delivering the agreed upon tracked activities. You may not, nor knowingly permit any person to, activate or attempt to activate a Qualifying Link or inflate or attempt to inflate the amount of any sought-after or resulting tracked activities, including, but not limited to, the use of any method or technology that does not actually deliver an end user to the destination Site associated with such Qualifying Link.
4. Final and Binding Determinations. Dreambly’s determination as to whether a tracked activity resulted from a Qualifying Link shall be final and binding on you.
5. Distribution of Qualifying Links. If you currently distribute, or plan to distribute, Qualifying Links on, to or through Sites other than those owned or operated by you, you hereby agree (i) that upon Dreambly’s request from time to time, you will provide Dreambly® a list of Sites that are not owned or operated by you (together with any reasonably requested information about any such Sites) where Qualifying Links (and associated materials) have been, or are planned to be, distributed and/or used, and (ii) to provide prompt and reasonable cooperation to Dreambly® in responding to any requests, complaints, claims or other issues raised by Dreambly® regarding where and how Dreambly’s Qualifying Links are distributed and/or used, including ceasing further distribution of such Qualifying Links (and associated materials), as appropriate. You agree that you will be liable for any breach of this Agreement that results from an act or omission of any third party Site that you use to display Qualifying Links. Dreambly® reserves the right to prohibit you from distributing Qualifying Links to or displaying Qualifying Links on third party Sites.
6. No Modification of Qualifying Links. You agree that you will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Dreambly® to be used in connection with your use of any Materials, including the promotion and display of Qualifying Links. You further agree that you may not create your own Qualifying Links unless specifically authorized to do so by Dreambly®, in which case you agree to comply with any of Dreambly’s applicable terms and conditions.
7. Termination of Qualifying Links. Dreambly® may terminate any Qualifying Links associated with the Program. You must remove any Qualifying Links after being notified of any termination. If Qualifying Links are not so removed, Dreambly® may deactivate your account and redirect or remove such links as it determines in its sole discretion, with or without compensation to you.
8. No Modification of Content. You may not modify, resize, reformat, edit or otherwise alter any Content provided by Dreambly®, unless expressly authorized to do so by Dreambly®. In such event, any such modifications shall be strictly limited in accordance with such Dreambly’s specific authorization.
9. Discontinuing Use of Qualifying Links. You may at any time discontinue use of Qualifying Links by removing such Qualifying Links from your Site, with or without notice to Dreambly®, provided, however, you shall remain subject to the terms of this Agreement until you separately terminate this Agreement.
Dreambly® Affiliate Reporting:
1. Revisions. You will have access to Materials made available to Affiliates, including reports that detail tracked activities generated by your Site and any corresponding commissions that you have earned. Dreambly® reserves the right to revise any report made available to you at any time if Dreambly® believes that the report contains an error or omission or otherwise requires an adjustment. Since the reports Dreambly® or its designee provides to you are the bases for calculating the compensation, if any, due to you from Dreambly®, any such revision may affect the amount of compensation to which you are entitled.
2. Errors. If you believe that any of your Affiliate reports for any month contains errors in the data about your participation in the Program you must notify Dreambly® via email at [email protected]
within 5 days after the end of that month so that, if possible, the matter may be resolved. If any Affiliate reports for any month are corrected or adjusted after the end of the month, then the period in which you must notify Dreambly® of errors in the corrected or adjusted data shall be 5 days after such correction or adjustment is posted. Any dispute between you Dreambly® about any error you report must be resolved by you and Dreambly®. In the event a dispute arises between you and Dreambly® regarding the amount of the funds that are due, or regarding who is entitled to receive the funds that are due, Dreambly® will be entitled to hold, and to decline to offer further processing services until such dispute is resolved. You agree that Dreambly® shall incur no liabilities to you in connection with any such dispute.
3. Backing-up Data and Other Precautions. Data transfer, conversion, processing and storage may be subject to human and machine errors, delays, interruptions and losses. Dreambly® and its designees shall not be liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to you. Dreambly® may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Dreambly® and/or to which it provides you with access.
Dreambly® Affiliate Payments:
1. Payments. For a Dreambly® product sale to be eligible to earn a referral fee through the Program, the customer must click-through a Qualifying Link from your Site, email, or other communications to the Site. When a web surfer clicks through your Qualifying Link, a cookie is set in their browser that contains your unique Affiliate code. Also, their IP address is tracked in the database along with your Affiliate code. When this person decides to buy a product, the script will look for this cookie and/or try to match their IP address to identify the Affiliate who will be awarded the commission. Visitors sent through your Qualifying Link may make a purchase later in time and the commission will still be awarded if the cookie is present in their browser and/or they are using the same IP address as the one logged in the database for up to 365 days after the initial cookie is set.
We will only pay commissions on Qualifying Links that are automatically tracked and reported by our systems. We will not pay commissions if someone says they signed up or someone says they entered a referral code if it was not tracked by our system.
We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.
2. Payment Terms. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from Dreambly®, as payment may be subject to conditions established by Dreambly®, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks before payment is made. You further acknowledge that your entitlement to any compensation reported with respect to any tracked activity is subject to Dreambly’s receipt of funds from the customer associated with the tracked activity giving rise to the purported compensation.
3. Payment Schedule. You’ll be paid roughly every week, provided you have earned a commission during the previous week.
4. Tax. You agree that you are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with any compensation earned by you as a result of your participation in the Program.
Dreambly® Affiliate Obligations:
1. No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Dreambly® Materials, and any attempt to do so shall be null and void.
2. Abuse, Fraud, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, or make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of, any Materials, including any servers, bandwidth supply, equipment, software and other technological resources provided by Dreambly®. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with your participation in the Program.
3. Spam. You may not use any Qualifying Links in any electronic message unless (a) you have received the express written authorization of Dreambly® use email or other electronic messages to promote it or its Qualifying Link and (b) any and all such electronic messages comply in all respects with this Agreement, and any and all applicable foreign, national, federal, state, local or provincial laws prohibiting or restricting the delivery of unsolicited electronic communications, also known as SPAM. Further, no electronic message initiated or sent by you or on your behalf may identify Dreambly® as a sender or sponsor of such electronic email message.
4. Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with your use of any Qualifying Links, the Program or any other Materials, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to your Qualifying Links or for any other purpose.
6. No Solicitation. You may not use any Materials or the Program in connection with aggregating, soliciting or recruiting other Sites or other individuals or entities to form or join a marketing, advertising or similar network.
Dreambly® License to Affiliates:
1. Your Use of Materials. Dreambly® grants to you a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement, to: (a) use the Materials, to participate in the Program as an Affiliate; (b) access the Affiliate Account Area necessary for your participation in the Program; (c) solely for your use in connection with your participation in the Program, access reports made available to you by Dreambly®; and (d) use any Materials or other Content that is provided by Dreambly® solely for the purpose of creating and maintaining Qualifying Links in accordance with the terms of this Agreement, for such purpose, and no other purpose, but only in the form so provided.
2. Limits of Use. Use of the Dreambly® Materials, including the Program, the Affiliate Account Area, any reports made available to you by Dreambly® and Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited. Dreambly® may change the form and/or content of any report at any time without notice to you.
3. Use of the Dreambly® Brand Name. This Agreement does not grant to you any license or right to use Dreambly’s name or any of its logos or trade or service names or marks except to the extent any trade or service name is part of any code made available to you as part of a Qualifying Link. Any proposed press release or other public announcement by you regarding this Agreement or the Program or that refers to Dreambly® or any of its corporate affiliates, either directly or indirectly, shall require the prior written approval of Dreambly®. You agree that you shall not disparage Dreambly®, any Dreambly® designees, products or services, the Program or any other participants thereof.
Grant of Licenses to Dreambly®:
1. Use of Your Content. Other than as provided below, in order to participate in the Program, you are not required to provide Dreambly® with any Content or other materials. Should you do so, by way of uploading, delivering or otherwise making available to Dreambly® any Content and/or other materials (including any Intellectual Property Rights therein and thereto) in connection with the Program or otherwise, you hereby grant to Dreambly® a non-exclusive, worldwide, royalty-free, sublicensable perpetual license to use and store the same, including in relation to Dreambly’s conduct of its business or performance of any services in relation to the Program.
2. Use of Your Personal Information. Dreambly® and its designers may use your personal information (i) for the purpose of facilitating your participation in the Program, which may include indexing your name and relevant information about your business in the Program Affiliate database, (ii) to facilitate payments to you, (iii) to contact you generally regarding your use of the Program (and you agree to receive email and other communications regarding the Program and your participation in the Program from Dreambly® and any of its designees Parties), (iv) for overall benchmarking and analysis of the program, and (v) to conduct one or more investigations to determine if you have violated any provision of this Agreement and as part of such investigation Dreambly® may share your personal information with a third party or a law enforcement agency that needs such information in order to support such investigation.
3. Use of Your Name. You agree that Dreambly® may refer to you by name in connection with the Program and/or the performance or provision of any Materials, including in communications sent to actual or prospective participants of the Program.
4. Disclosure of Business Relationship. Nothing in this Agreement shall prevent Dreambly® from making any public or private statements about your business relationship with Dreambly® and/or your participation in the Program.
5. Use of Your Logo. Dreambly® will not use any of your logos and/or other trademarks without your prior written approval, except as expressly provided in this Agreement. Any and all uses of your logos and/or other trademarks shall be in accordance with your specified usage and/or brand guidelines.
Dreambly® Affiliate Privacy:
Dreambly® Affiliate Representations and Warranties:
1. Representations and Warranties. You hereby represent, warrant, covenant, undertake and agree follows: (a) you have the legal right to conduct any business conducted by you including in respect of any Site(s) participating in the Program and to the extent that you are an individual, you are at least eighteen years of age; (b) any and all information you provide as part of the registration process or otherwise is and shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by Dreambly®; (c) this Agreement has been duly and validly authorized, accepted, executed and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; (d) the performance by you of this Agreement does not and will not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to you, and (ii) if you are an entity, any provision of your certificate of incorporation or other organizational documents; and (e) without limiting any other provision of this Agreement, you and your corporate affiliates, officers, directors, employees, consultants, agents and representatives, and the activities of your business, and your use of the Program and/or Materials shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
2. Indemnification. You agree to defend, indemnify and hold harmless Dreambly®, and its directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) that directly or indirectly arise out of or are based on (a) any breach of any representation, warranty, or covenant made by you in this Agreement, (b) you engaging in any Prohibited Activity (c) any violation by you of any law, regulation or rule, (d) your inappropriate use of any other Materials, (e) your negligence or willful misconduct, and/or (f) any actual or alleged infringement by you of any Intellectual Property Rights or other rights of any person. Dreambly® may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Dreambly® may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without Dreambly’s prior written consent.
1. Termination. You or Dreambly® may, at any time, with or without cause, terminate this Agreement and your participation in the Program or use of any other Dreambly® Materials. You may affect such termination by sending written notice to Dreambly® at [email protected]
2. Restricted Use. Alternatively, Dreambly® may, at any time, with or without notice, in its sole discretion, suspend, limit, restrict, condition or deny your access to or use of all or any part of the Program or any Dreambly® Materials.
3. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement and/or your participation in the Program: (a) you shall immediately cease to use and remove from any and all Site(s) or other communications, whether or not owned or operated by you, any and all Qualifying Links and all other Content or Materials provided to you in connection with your participation in the Program or your use of any other Materials; (b) any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate; (c) Dreambly® may terminate or, in its sole discretion, direct or redirect to any destination Site any and all Qualifying Links continued to be used by you without Dreambly® incurring any further liability or obligation to you; and (d) any and all confidential or proprietary information of Dreambly® that is in your possession or control must be immediately returned or destroyed, at Dreambly’s sole discretion. If requested, you will certify in a writing signed by you or an authorized officer as to the return or destruction of all such confidential or proprietary information.
4. Fees. Dreambly® may withhold and offset any fees or other charges owing to Dreambly® or its designees against any and all compensation and/or other fees that are then unpaid to you. Following assessment of any fees or other charges owing to Dreambly®, and subject to Dreambly® holding any amount it determines in its sole discretion to be needed to support any of your indemnifications and/or other obligations and/or liabilities under this Agreement, Dreambly® may retain any remaining monies. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Dreambly® or its designees may have in contract, at law or in equity.
Dreambly® Affiliate Confidentiality:
1. Confidential Information. You acknowledge that in connection with your participation in the Program you will be provided with confidential and proprietary data and information from time to time. Such confidential and proprietary data and information may be owned variously by Dreambly® or its designees and/or its or their suppliers or contractors. You will retain ownership of any data and information that you independently collect through your Sites without the use of Materials, provided that any data and information that may be provided by you to Dreambly® shall be deemed to be covered by the licenses granted to Dreambly® under this Agreement. Confidential information of Dreambly® includes, but is not limited to, information about tracked activities contained in reports, non-public information about Dreambly® or its designees and Materials made available to you by Dreambly® or its designees to facilitate your participation in the Program. You will keep confidential information, including reports, data and other information provided to you through the Affiliate Account Area or otherwise strictly confidential. Without Dreambly’s prior written consent, you will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement. You may disclose any such confidential information only to your employees, officers, directors, lawyers or business advisors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
2. Legally Required Disclosures. If you receive any document request, interrogatory, subpoena or other legal process (“Request”) that would, by its terms, require the disclosure of any confidential information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, you will, unless otherwise prohibited by law or an order of a competent court, notify Dreambly® in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, Dreambly® may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by Dreambly®, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Dreambly® will be entitled to seek and obtain injunctive relief preventing any breach of your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
Dreambly® hereby gives notice to you of the whistleblower protections of the Defend Trade Secrets Act. An individual shall not be held criminally or civilly liable under any Federal or State or International trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. You agree to give notice to your employees of the protections of this provision with regards to any confidential information or trade secrets that are subject to this confidentiality agreement.
DISCLAIMER OF WARRANTIES.
THE PROGRAM AND ANY DREAMBLY® MATERIALS ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE.” DREAMBLY® AND ITS DESIGNEES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISEMENTS, COMPLETENESS, SECURITY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROGRAM OR ANY MATERIALS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY QUALIFYING LINKS WILL BE AVAILABLE.
LIMITATION OF LIABILITY.
YOU AGREE THAT THE TOTAL LIABILITY OF DREAMBLY® AND ITS DESIGNEES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU FOR ANY CLAIMS MADE UNDER THIS AGREEMENT WILL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE AVERAGE OF COMMISSION FEES PAYABLE TO YOU PRIOR TO ANY SUCH CLAIM, AND USD $500.00. YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE. NONE OF DREAMBLY® AND ITS DESIGNEES WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH ENTITY WAS AWARE THAT SUCH DAMAGES COULD RESULT.
Dreambly® Affiliate Program Miscellaneous:
1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., without regard to its conflicts of law principles.
2. Informal Dispute Resolution. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, the Parties agree, at the request of either Party, to appoint representatives to meet in good faith within 30 days of such request, in order to resolve the dispute.
3. Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the Parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the Parties with respect to such subject matter. You have not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of Dreambly® before you entered into this Agreement, and you waive all rights and remedies which, but for this clause, might otherwise be available to you in respect of any such representation, warranty, collateral contract or other assurance. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
4. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Dreambly® will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either Party acts or proposes to act in a representative capacity. No arbitration or other proceedings will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
This Agreement was last updated on June 13, 2018.