This Influencer Agreement is between you ("you") and Spigen, Inc. ("Spigen")
If you have registered for or on behalf of an entity you are deemed to have accepted this Agreement on behalf of that entity.
This "Agreement" refers to, individually and collectively depending upon the context, this Influencer Agreement and any and all Influencer Affiliate Policies and Guidelines (collectively, the "Affiliate Policies") as in effect from time to time.
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:
1. Joining the Affiliate Network
1.1. Registration. To use (or continue to use) the Affiliate Network as an Influencer, you must provide Spigen with truthful, accurate and complete registration information. If any such information changes, you must immediately update your registration information.
1.2. Accurate Registration Information. Spigen has the right, but not the obligation, to verify the truth and accuracy of any registration information at any time. Please be advised that if any information is determined by Spigen to be misleading, inaccurate or untruthful, Spiegn may restrict, deny or terminate your account and/or your access and use of the Offerings; Spigen 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 Spigen’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3. Participation. To join the Affiliate Network, 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.
1.4. USE OF THE AFFILIATE NETWORK. IF YOU HAVE REGISTERED IN YOUR PERSONAL CAPACITY, YOU HEREBY ACKNOWLEDGE THAT SERVICES MADE AVAILABLE BY SPIGEN TO INFLUENCERS ARE PROVIDED FREE OF CHARGE AND SOLELY FOR THE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS AND YOU AGREE THAT YOU WILL ONLY USE THE NETWORK SOLELY FOR THE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS FOR YOUR BUSINESS AND FOR NO OTHER PURPOSE. YOU FURTHER AGREE THAT WHEN USING THE AFFILIATE NETWORK, YOU ARE ENGAGED IN BUSINESS ACTIVITY AND ARE NOT ACTING AS A CONSUMER.
2. Defined Terms
2.1. The following terms have the meanings indicated:
"Advertiser" means any person that owns or operates a Site and/or other business that can acquire customers or other types of end users by way of the internet.
"Content" means information, data, text, documents, software, music, sound, photographs, graphics and video.
A "corporate affiliate" of a person is any other person that, directly or indirectly, controls such person, is controlled by such person, or is under common control with such person, with "control" meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person.
An "end user" means an actual or potential consumer, customer or other natural person.
"Engagement" means any time of agreement or arrangement between you and Spigen, or in some cases, and agreement or arrangement between you and Spigen Related Parties, that can be initiated or performed on or in relation to the internet, including affiliate marketing, performance based linking and online-to-offline tracking of tracked activities.
An "entity" means a sole proprietorship, corporation, partnership, limited liability company, trust, government agency or instrumentality or other entity recognized by law as a legal person separate from its owners.
The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
"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.
A "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.
"Network" means the online affiliate marketing network operated by Spigen through which Influencer may enter into Engagements with Spigen or its designees and affiliates.
The phrase "provided by Spigen" or "Spigen-provided" shall, when used in relation to tools, services, resources or other offerings, encompass the provision thereof by Spigen and/or its designees and affiliates.
"Influencer" means a person that participates in the Network and, through such participation and use of the appropriate Offerings, desires or makes itself available to be recruited or to enter into Engagements to display, distribute or place Qualifying Links for compensation.
"Influencer Account Area" means the Network Webpage(s) or other area of the Site having the URL designated from time to time by Spigen for use by Influencers for the purpose of facilitating formation of qualifying links, accessing reports and otherwise participating in the Network.
"Offerings" means offerings provided by Spigen and Spigen Related Parties in the form of technology, software, reports and databases, customer support, account management and other client services, symposia, summits and other educational and networking events, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
A "person" is to be broadly construed and includes any natural person or entity.
"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, sexually explicit or similar activities; (d) illegal gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) offering of any MP3, MPEG 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 Spigen (or Spigen Related Parties) representative, or misrepresentation of affiliation with any person.
A "Qualifying Link" means any type or format of link that is provided or authorized by Spigen to be displayed, distributed or placed on or by a Site pursuant to an Engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Spigen can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. 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.
"Spigen Related Parties" means the corporate affiliates and contractors, licensors, licensees and suppliers of Spigen.
"Site" means, as the context requires, either (a) one or more Web pages, databases, 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. A "tracked activity" means any type of pre-agreed or predefined activity or result that is sought by an Advertiser in relation to a Qualifying Link. The kinds of tracked activities that an Advertiser may seek to complete through such arrangements 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.
"Web" or "internet" or "online" means the global computer network currently referred to as the internet, including the World Wide Web, and any and all successor networks, irrespective of what wired, wireless or otherwise connected device, platform or technology is used to access it.
3. Relationship of the Parties
In addition to and without limiting your obligations under this Agreement, your participation in the Network will require that you enter into Engagements. In such event, the terms and conditions of the relevant Engagement will govern your obligations to Spigen, including your use of the Qualifying Links associated with Spigen, the tracked activities sought, the compensation that might become payable, and any limitations or restrictions that may apply to the promotion.
4.1. Participation. Subject to the terms and conditions in this Agreement, you have joined the Network as an Influencer and may use the Offerings made available to Influencers. Your participation is purely voluntarily and you may terminate your participation at any time. Spigen shall not be construed or deemed as having solicited, requested or procured you or your services to promote Spigen or Spigen Related Parties or its respective trade or business, or goods, products, property, or services.
4.2. Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Spigen. Your participation in the Network, use of any Offerings or receipt of payment of any compensation under any Engagement shall not be construed or be deemed to be an inducement for, solicitation of you to provide any products or services to Spigen.
4.3. Prohibited Activities. In respect of or in relation to any Site (or portion thereof) used by you in connection with your participation in the Network, you may not engage in any activity that is or constitutes, or that involves, facilitates, advocates or promotes any Prohibited Activity.
5. Qualifying Links
5.1. Use of Qualifying Links. Each Qualifying Link used by you must include, in unaltered form, the Spigen tracking code in the manner and format made available or otherwise dictated by Spigen.
5.2. 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.
5.3. Final and Binding Determinations. Spigen’s determination as to whether a tracked activity resulted from a Qualifying Link shall be final and binding on you.
5.4. 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 Spigen’s request from time to time, you will provide Spigen 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 Spigen in responding to any requests, complaints, claims or other issues raised regarding where and how such 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. Spigen reserves the right to prohibit you from distributing Qualifying Links to or displaying Qualifying Links on third party Sites.
5.5. No Modification, Etc. 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 Spigen to be used in connection with your use of any Offerings, 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 Spigen, in which case you agree to comply with Spigen’s applicable terms and conditions.
5.6. Termination of Qualifying Links. Spigen may terminate any Qualifying Links associated with any Engagement. You must remove any Qualifying Links after being notified of any termination of the corresponding Engagement. If Qualifying Links are not so removed, Spigen may redirect such links as it determines in its sole discretion, with or without compensation to you.
5.7. No Modification of Content. You may not modify, resize, reformat, edit or otherwise alter any Content provided by Spigen, unless expressly authorized to do so by Spigen. In such event, any such modifications shall be strictly limited in accordance with Spigen’s specific authorization.
5.8. 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 Spigen provided however you shall remain subject to the terms of the relevant Engagement and this Agreement until you separately terminate such Engagement(s) or this Agreement.
6.1. Revisions. You will have access to Offerings made available to Influencers, including reports that detail tracked activities generated by your Site and any corresponding commissions that you have earned. Spigen reserves the right to revise any report made available to you at any time if we believe that the report contains an error or omission or otherwise requires an adjustment. Since the reports Spigen provides to you are the basis for calculating the compensation, if any, due to you, any such revision may affect the amount of compensation to which you are entitled.
6.2. Errors. If you believe that any of your Influencer reports for any month contains errors in the data about an Engagement you must notify Spigen within ten (10) days after the end of that month or any shorter period in relevant Engagement so that, if possible, the matter may be resolved. If any Influencer reports for any month are corrected or adjusted after the end of the month, then the period in which you must notify Spigen of errors in the corrected or adjusted data shall be ten (10) days after such correction or adjustment is posted or any shorter period in the relevant Engagement. In the event Spigen is holding funds for the purpose of paying commissions to you, and a dispute arises between you and Spigen regarding the amount of the funds that are due, or regarding who is entitled to receive the funds that are due, Spigen will be entitled to hold such funds, and to decline to offer further processing services until such dispute is resolved in writing, by all parties.
6.3. Backing-up Data and Other Precautions. Data transfer, conversion, processing and storage may be subject to human and machine errors, delays, interruptions and losses. Spigen 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. Spigen 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 Spigen and/or to which it provides you with access.
7.1. General Compliance. You agree that you will comply with all privacy and data security laws, rules and regulations applicable to you in the regions in which you do business.
8. Your Obligations
8.1. No Solicitation. You may not use any Offerings in connection with aggregating, soliciting or recruiting Influencers or other Sites or other persons to form or join a marketing, advertising or similar network.
8.2. No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Offerings, and any attempt to do so shall be null and void.
8.3. No Reverse Engineering. You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any Offerings.
8.4. No Hacking, 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, any Offerings, including any servers, bandwidth supply, equipment, software and other technological resources provided by Spigen.
8.5. No Spam. You may not use any Qualifying Links in any electronic message unless (a) you have received the express written authorization of Spigen to 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, the terms and conditions, 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.
8.6. No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any Qualifying Link that has been placed or distributed by another Influencer including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such Qualifying Link without your interference.
8.7. No 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 Network or any other Offerings, 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.
8.8. Fraud, Abuse, etc. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with your participation on the Network or in connection with Spigen’s program or Engagement.
9. Grant of License to You
9.1. Your Use of Offerings. Spigen 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 Offerings, to participate in the Network as an Influencer;
b. Access the Influencer Account Area necessary for your participation in the Network;
c. Solely for your use in connection with your participation in the Network, access reports made available to you by Spigen;
d. Use any software code or other Content that is provided by Spigen solely for the purpose of creating and maintaining Qualifying Links in accordance with the terms of this Agreement and your Engagements, for such purpose, and no other purpose, but only in the form so provided.
9.2. Limitations. Except as provided in this Section 9, all other use of the Offerings, including the Network, the Influencer Account Area, any reports made available to you by Spigen and software code or 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. Spigen may change the form and/or content of any report at any time without notice to you.
9.3. Use of the Spigen Name. This Agreement does not grant to you any license or right to use Spigen'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 Network or that refers to Spigen or any of its corporate affiliates, either directly or indirectly, shall require the prior written approval of Spigen. You agree that you shall not disparage Spigen, any Spigen Related Parties, the Network or any other participants thereof.
9.4. Duration of License Rights; Reservation. The license set forth in Section 9.1 (Use of Offerings) is valid only while you remain a member of the Network as an Influencer and comply fully with this Agreement. Spigen may revoke any such license at any time by giving you notice by e-mail or in writing. Spigen reserves all rights that are not specifically granted to you by this Agreement.
10. Grant of Licenses to Spigen
10.1. Use of your Content. Other than as provided below, in order to participate in the Network, you are not required to provide Spigen with any Content or other materials. Should you do so, by way of uploading, delivering or otherwise making available to Spigen any Content and/or other materials (including any Intellectual Property Rights therein and thereto), you hereby grant, to Spigen a non-exclusive, worldwide, royalty-free, sublicenseable perpetual license to use and store the same including in relation to Spigen conducting its business or performance of any services in relation to the Network.
10.2. Use of Your Personal Information. Spigen and Spigen Related Parties may use your personal information (i) for the purpose of facilitating your participation in the Network, which may include, indexing your name and relevant information about your business in the Influencer database, (ii) making such information available to Spigen in furtherance of possible business relationships, (iii) to facilitate payments to you, (iv) to contact you generally regarding your use of the Network (and you agree to receive email and other communications regarding the Network and your participation in the Network from Spigen and any Spigen Related Parties), (v) for overall benchmarking and analysis of the Network and (vi) to conduct an investigation to determine if you have violated any provision of this Agreement and as part of such investigation Spigen may share your personal information with a third party or a law enforcement agency that needs such information in order to support such investigation. If you live or if you are a business that is headquartered in Europe, you hereby acknowledge and agree that your personal data may be transferred or stored outside Europe in order to facilitate your use of the Offerings, including processing commission payments owed to you by Network Advertisers.
10.3. Use of your Name. You agree that Spigen may refer to you by name in connection with the Network and/or the performance or provision of any Offerings, including in communications sent to actual or prospective participants of the Network.
10.4. Disclosure of Business Relationship. Nothing in this Agreement shall prevent Spigen from making any public or private statements about your business relationship with Spigen and/or any Spigen and/or your participation in the Network.
10.5. Use of your Logo. Spigen 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.
11. 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 Network and to the extent that you are an individual, you are at least eighteen years of age; and
b. Any and all information you provided 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 Spigen; and
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; and
d. The performance by you of this Agreement and any Engagement to which you are or become a party 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.
12.1. Confidential Information. You acknowledge that in connection with your participation in the Network and/or in one or more Engagements 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 by Spigen and/or its suppliers or contractors. You will retain ownership of any data and information that you independently collect through your Sites without the use of Offerings, provided that any data and information that may be provided by you to Spigen shall be deemed to be covered by the licenses granted to Spigen under this Agreement. Confidential information of Spigen includes but is not limited to information about tracked activities contained in reports, non-public information about Advertisers and software code made available to you by Spigen to facilitate your participation in the Network.
12.2. Duty of Care. You will keep confidential information, including reports, data and other information provided to you through the Influencer Account Area or otherwise strictly confidential. Without Spigen’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 and/or your Engagements.
12.3. Need to Know Basis. 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.
12.4. 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 Spigen in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, Spigen 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 Spigen, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Spigen 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.
13. Payment; Fees
13.1. Payment. You acknowledge that your entitlement to any compensation reported with respect to any tracked activity (including if reported) is solely a function of the terms of your Engagement with Spigen. You further acknowledge that your entitlement to any compensation reported with respect to any tracked activity is subject to Spigen’s receipt of funds from the end customer associated with the Engagement giving rise to the purported compensation.
13.2. 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 Spigen, since payment may be subject to conditions established by Spigen, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks and minimums for earned compensation before payment is made.
13.3. Disputes. Spigen is under no obligation to investigate or resolve any claim or dispute involving you and any third party person. If Spigen, in its sole discretion, elects to investigate or otherwise become involved in any such claim or dispute, it shall not thereby undertake, assume or have any duty, obligation or liability to you or any other party to the claim or dispute.
13.4. Right to Assess Fees. Spigen may, at any time upon prior written notice to you as described below, commence charging or assessing fees in relation to any or all Offerings made available to you including your participation on the Network(s). Except as otherwise expressly provided in this Agreement, in the event Spigen elects to charge or assess fees, you will be notified at least fourteen (14) days in advance in writing by email or posting through the Influencer Account Area. You may elect not to pay any such fees by discontinuing your participation in all Offerings prior to the commencement of such fees. Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for you by Spigen or Spigen Related Parties.
13.5. 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 any Offerings, the Network or any Engagement.
14. Compliance with Laws
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, your performance under any Engagements, and your use of the Network and/or Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
15. DISCLAIMER OF WARRANTIES
15.1. AS-IS. THE NETWORK AND ANY SPIGEN OFFERINGS ARE PROVIDED "AS IS", "WHERE IS" AND "AS AVAILABLE."
15.2. DISCLAIMER. EACH SPIGEN SERVICE PROVIDER AND EACH OF THE SPIGEN RELATED PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE NETWORK OR ANY OFFERINGS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY QUALIFYING LINKS WILL BE AVAILABLE OR CAN OR WILL BE WILLING TO ENTER INTO ANY ENGAGEMENT WITH YOU.
16. LIMITATION OF LIABILITY
16.1. LIMITATION. YOU AGREE THAT THE TOTAL LIABILITY OF SPIGEN AND SPIGEN RELATED PARTIES, 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 BY SPIGEN DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY SUCH CLAIM, AND (B) USD$1,000 (USD ONE THOUSAND DOLLARS). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT SPIGEN IS PROVIDING THIS SERVICE AT NO CHARGE TO YOU.
16.2. NO CONSEQUENTIAL DAMAGES. NONE OF SPIGEN’S AND SPIGEN’S RELATED PARTIES 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.
16.3. APPLICABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 16 MAY NOT APPLY TO YOU.
17.1. Indemnification. You agree to defend, indemnify and hold harmless Spigen and Spigen Related Parties, and its and their 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 breach by you of any Engagement, (d) any violation by you of any law, regulation or rule, (d) your inappropriate use of any other Offerings, (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.
17.2. Control of Defense. Spigen may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Spigen 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 Spigen's prior written consent.
18.1. Amendments. Upon at least fourteen (14) days prior written notice, Spigen may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Network Policies and Guidelines. YOUR CONTINUED USE OF THE NETWORK AND/OR SPIGEN’S OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH AMENDMENT. IF YOU DO NOT WISH TO ACCEPT ANY SUCH AMENDMENT, THEN YOU MUST TERMINATE YOUR ACCOUNT IN THE NETWORK AND CEASE USING THE NETWORK AND ANY ASSOCIATED OFFERING OR ENGAGEMENT.
18.2. Changes in Service. Upon prior written notice, Spigen may add, remove, suspend or discontinue any aspect of the Network or any other Spigen Offering. YOUR CONTINUED USE OF THE NETWORK AND/OR SPIGEN OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT IN THE NETWORK AND CEASE USING THE NETWORK AND ANY ASSOCIATED OFFERING OR ENGAGEMENT.
19. Termination, etc.
19.1. Termination. You or Spigen may, at any time, with or without cause, terminate this Agreement and your participation in the Network or use of any other Spigen Offering. You may affect such termination through your Influencer Account Area or by written notice to Spigen subject to actual receipt thereof.
19.2. Restricted Use. Alternatively, Spigen 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 Network or any Spigen Offering.
20. Effects of Termination
20.1. Termination. Upon any termination of this Agreement and/or your participation on the Network:
a. You shall immediately cease to use and remove from any and all Site(s), 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 Network or your use of any other Offerings.
b. Any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate.
c. Spigen 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 Spigen incurring any further liability or obligation to you.
d. Any and all confidential or proprietary information of Spigen (including as applicable any confidential or proprietary information of Influencers as and to the extent originally provided by Spigen) that is in your possession or control must be immediately returned or destroyed, at Spigen’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.
20.2. Fees. Spigen may withhold and offset any fees or other charges owing to Spigen 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 Spigen, and subject to Spigen holding any amount it determines in its sole discretion to be needed to support any of your indemnification and/or other obligations and/or liabilities under this Agreement, Spigen may refund any remaining monies to any of the influencers with which you had entered into an Engagement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Spigen may have in contract, at law or in equity. 20.3. Survival. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. Sections 1.4, 4.2, 5.3, 5.5, 6.2, 6.3, 8, 9.2 10, 12 and Sections 15 through 21, respectively and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement.
20.3. Survival. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement. Sections 1.4, 4.2, 5.3, 5.5, 6.2, 6.3, 8, 9.2 10, 12 and Sections 15 through 21, respectively and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement.
21.1. Independent Contractors. The parties are independent contractors and not partners, joint venturers. Other than in respect of the obligation of Spigen to pay over promptly to you any payments Spigen may owe to you, nothing in this Agreement shall confer upon either party any authority to obligate or bind the other in any respect or cause either party to have a fiduciary relationship to the other.
21.2. Force Majeure. Spigen shall not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, lockouts or other industrial disputes, earthquakes, interruptions in telecommunications services or internet facilities, or any other cause which is beyond the reasonable control of Spigen Marketing, whether or not similar to the foregoing.
21.3. Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
21.4. Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
21.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to its conflicts of law principles.
21.6. 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 thirty (30) days of such request, in order to resolve the dispute.
21.7. Arbitration. Except for actions seeking equitable or injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement, that is not resolved pursuant to Section 21.6 (Informal Dispute Resolution) shall be referred to and finally resolved by arbitration administered by the International Institute for Conflict Prevention and Resolution ("CPR"), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each party shall designate one, with the third arbitrator to be designated by the two party-appointed arbitrators. Such arbitration shall be conducted in Irvine, California. The arbitrators shall establish procedures under which each party will be entitled to conduct discovery and shall award to the prevailing party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys fees. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. 1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators shall award only such damages as are permitted to be awarded pursuant to this Agreement. The arbitrators must render their award within 30 days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to this Agreement that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration. Notwithstanding the foregoing, either party shall be entitled to apply to any court of competent jurisdiction for injunctive relief, without bond, to restrain any actual or threatened conduct in violation of this Agreement or to specifically enforce any party’s obligations under this Agreement.
21.8. 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 Spigen 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.
21.9. Notices. Spigen may provide notices to you by posting notices or links to notices in your Influencer Account Area. Notices to you also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for the Network. If you provide notice to Spigen, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: Spigen, Inc., 9975 Toledo Way, Suite 100, Irvine, CA 92618, Attn.: Legal Dept.
21.10. Language. This Agreement may be translated into different language versions and, except as provided by applicable law, the English language versions of this Agreement and Network Policies are the controlling versions thereof and shall prevail.
21.11. 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 Spigen 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 proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
[END OF INFLUENCER AGREEMENT]