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Affiliate Terms and Conditions

Last modified: February 2023​

PLEASE READ THIS CIRCLE AFFILIATE PROGRAM AGREEMENT (THIS “AGREEMENT”) CAREFULLY.  BY JOINING AND PARTICIPATING IN THE CIRCLE AFFILIATE PROGRAM (THE “PROGRAM”) OR BY CLICKING A BUTTON OR CHECKING A BOX MARKED “I AGREE” (OR SOMETHING SIMILAR), YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED HEREIN BY REFERENCE.  NOTE THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE IN SECTION 14(b) (THE “ARBITRATION AGREEMENT”) AND A CLASS ACTION/JURY TRIAL WAIVER CLAUSE IN SECTION 14(c) (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN THE ARBITRATION AGREEMENT, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THIS AGREEMENT.  TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION OR PROCEEDING.  IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN DO NOT PARTICIPATE (OR CONTINUE TO PARTICIPATE) IN THE PROGRAM.

This Agreement applies to each individual’s or entity’s (“Affiliate,” “you,” or “your”) participation in the Program, which is operated by CircleCo Inc. (“Company,” “our,” “us,” or “we”). This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Company. In addition, this Agreement complements and hereby incorporates by this reference Company’s Terms of Service, currently available at https://app.circle.so/terms (“Terms of Service”). In the event of any conflict or inconsistency between the Terms of Service and this Agreement, this Agreement will control to the extent of such conflict or inconsistency. Affiliate is responsible for assuring that its employees, agents, and contractors (collectively, “Affiliate Representatives”) comply with the terms and conditions of this Agreement. Affiliate is and remains responsible for all obligations under this Agreement, and will be liable for any act or omission by an Affiliate Representative that would have constituted a breach of the provisions of this Agreement had it been the act or omission of Affiliate.

1) Enrollment

To enroll in the Program, you must (a) complete the registration process via Partnerstack and agree to this Agreement; and (b) provide a valid PayPal or Stripe account for receiving payment. After verification of your PayPal or Stripe account by us, you may be granted access to the Program, which access may be granted, denied, or withheld in our sole discretion. If you are not able to have a PayPal or Stripe account due to your place of residence or for any other reason, you may not participate in the Program. Your use of PayPal or Stripe will be subject to separate terms made available by PayPal or Stripe, and will not be governed by this Agreement. If and when you are enrolled in the Program, you will be able to review the Program’s details and banner creatives, and browse and access other authorized marketing resources, in each case subject to the terms and conditions of this Agreement, including, without limitation, Section 9. Company reserves the right to re-evaluate your enrollment in the Program at any time, and reserves the right to terminate this Agreement and/or your participation in the Program at any time, for any or no reason, with or without notice.

2) Eligibility / Sanctioned Nations

By participating in the Program, you warrant that you are not a resident of any country under sanction by the Office of Foreign Assets Control (“OFAC”). Please note that the list of sanctioned countries may change at any time; however, a current list may be located at https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information. Participation in the Program as a resident of a sanctioned country is prohibited. You will comply with applicable OFAC restrictions, and will not advertise or otherwise engage in commercial activities with persons or businesses residing in countries under sanction. Affiliate is responsible for its and all Affiliate Representatives’ compliance with all Applicable Laws (as defined below).

3) How to Earn Affiliate Commissions

Upon acceptance into the Program, unique links (“Links”) will be made available to you through https://circle.so (including any successor URL(s), the “Site”).  We reserve the right, at any time, to review the placement and/or use of your Links and to require that you change such placement and/or use to comply with our guidelines, as may be amended or updated from time to time.Subject to the terms and conditions of this Agreement, for each person that you refer to the Site using your Links who, within 90 days of clicking the Link, completes a transaction on the Site that results in payment to Company (each such person, a “Customer”), you will receive 20% of the revenue actually received by Company from such Customer OR a $120 flat rate, one-time commission depending on your reward structure, excluding any applicable taxes, refunds, chargebacks, reversals, and any costs of collection, during the life of the Customer’s financial relationship with Company in the form of a service fee (“Affiliate Fee”).  For example on the revenue share, if a Customer is on a monthly payment plan for $99 a month, you may be entitled to receive an Affiliate Fee of $19.80 for every month during which such Customer is an active, paying customer of Company.  For example on the flat rate, one time fee, if a Customer signs up for any Circle Plan, you will receive a flat commission of $120 one time. Notwithstanding anything to the contrary herein, you will cease being entitled to Affiliate Fees, and Company will be under no obligation to pay any Affiliate Fees to you, effective upon the earlier of the termination of this Agreement and the termination of your participation in the Program (whether you withdraw from the Program, or we terminate your participation therein).  If a refund is issued to a Customer, or a payment from a Customer is charged back or reversed, after the Affiliate Fee associated with such payment has already been approved and paid to you, then Company will, at its option, either (a) debit your payment account associated with the Program (the “Partnerstack Account”) (or, if your Partnerstack Account has insufficient funds for such debit, your PayPal or Stripe account or bank account linked to your Partnerstack Account) for an amount equal to such refund, chargeback, or reversal amount, and deduct such balance from future Affiliate Fees, or (b) reduce or set off against any amounts remitted or due to Affiliate hereunder by an amount equal to such refund, chargeback, or reversal amount, or invoice Affiliate for an amount equal to such refund, chargeback, or reversal. Notwithstanding anything to the contrary herein, the Affiliate Fee will be attributable only to the last Link that the Customer clicked before completing the applicable transaction.  For example, if Customer A clicks on a Link provided by Affiliate X, but then clicks on a Link provided by Affiliate Y and completes a transaction on the Site, Affiliate Y will receive the full Affiliate Fee for transactions related to Customer A, even if the transaction is within 90 days of the date on which Customer A clicked on Affiliate X’s Link and Affiliate X meets all other conditions set forth in this Agreement regarding Affiliate Fees. Affiliate Fees will not be split or transferred under any circumstances. Circle reserves the right to make necessary edits to the affiliate reward structure.

4) Payment of Affiliate Fees

Affiliate Fees typically take 30-60 days for the Company to process, and are typically approved (in Company’s reasonable discretion) on or about the first seven days of the month immediately following the month in which they are processed, with payments initiated on or about the day following such approval (except that Affiliate Fees may not be approved or paid out on holidays and weekends, in which case they will be approved and/or initiated on or about the next business day) and payment received within several days after payments are initiated.  Partnerstack sends Company a report to review between the first and seventh of each month. After company reviews commission transactions, a payment will be issued for all approved commission transactions for the time period by the eighth of each month. For example, if you earn an Affiliate Fee on August 5th, it, along with all August Affiliate Fees, would likely be approved between October 1-7, with payment initiated on October 8, and payment received within several days of October 8. The foregoing timelines are estimates only, and Company does not guarantee that Affiliate Fees will be approved or paid in accordance with such estimated timelines.  You hereby release Company from any and all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of or resulting from a payment of Affiliate Fees that does not meet the foregoing estimated timelines.Affiliate Fees are up for processing according to a cadence that matches the applicable Customer’s payment terms.  For example, if Customer A pays Company monthly, you will be entitled to Affiliate Fees for each month during which Customer A pays; if Customer B pays Company annually, you will be entitled to one payment of Affiliate Fees for the year (in each case, provided that all other conditions set forth in this Agreement regarding Affiliate Fees are met).  A statement of activity, including transactions made by Customers, will be available to you when you log into partnerstack.com.  We reserve the right to exclude transactions, and to not pay Affiliate Fees for them, if we deem it necessary, in our sole discretion, to prevent abuse of the Program, or if the transactions otherwise do not comply with any requirements that we periodically may establish. If we ask you for clarification or for more information on any orders or clicks that we suspect may be in violation of this Agreement, the Terms of Service, or any other terms and conditions that we may publish from time to time, we expect that you will respond in a timely and honest manner.  A failure to be forthcoming or responsive, or to provide requested substantiation, may result in the termination of your Partnerstack Account and your removal from the Program.  If you are found redirecting Links to hide or manipulate their original source, any Affiliate Fees not yet paid by Company will be voided, your Partnerstack Account will be terminated, and your participation in the Program will be terminated. The foregoing does not include using “out” redirects from the same domain where the Link is placed. You are responsible for all taxes, duties, excises, and other charges imposed by any government entity, and for any and all reporting requirements, related to your Affiliate Fees. Notwithstanding anything to the contrary herein, you may be required to complete an IRS Form W-9 or W-8BEN as a condition of receiving Affiliate Fees, and you will cooperate with all requests by Company to complete any required documentation in connection with your participation in the Program and to comply with applicable tax obligations. You understand and acknowledge that Company may issue a Form 1099 in the event that Affiliate Fees equal $600 (or the then-current minimum amount established by the IRS for 1099 reporting) or more in a given year.

 

5) Program Restrictions

A) Compliance with Law: You represent and warrant that, in connection with your participation in the Program, you, any websites that you link to the Site (“Your Website(s)”), and any advertising materials or other materials you create, author, and/or use in connection with the Program do not and will not violate any applicable federal, state, or foreign law (including any law arising under common law), regulation, rule, or guideline (including any guideline created and/or enforced by a self-regulatory organization), including, without limitation, the U.S. Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc- publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf) and guidance on Cross-Device Tracking (available at https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-report-january-2017/ftc_cross-device_tracking_report_1-23-17.pdf), and the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising, Principles of Transparency and Control to Data Used Across Devices, and Self-Regulatory Principles to the Mobile Environment (available at https://digital advertising alliance .org/ principles #:~:text = This% 20 Application%20 of% 20 the % 20DAA % 20 Principles % 20 of % 20 Transparency ,for % 20 use % 20 on % 20 a % 20 different % 20computer % 20 or % 20device), in each case as may be amended or updated from time to time (collectively, “Applicable Law”). Without limiting the generality of the foregoing, (i) if you choose to promote our products and/or services via e-mail campaigns, you represent and warrant that you will comply with the CAN-SPAM Act of 2003 (Public Law No. 108-187), including by, among other things, providing the option to opt-out in all email messages and making it clear that you are the sender of the email and not acting at the direction of Company; and (ii) if you are conducting business in, or taking orders from persons in, countries outside of the U.S., you will follow the applicable laws of those countries. For example, you may be required to comply with the European Union’s Privacy and Electronic Communications Directive, as well as the General Data Protection Regulation (GDPR), if you are conducting business in, or taking orders from persons in, the European Union. B) General Restrictions: ‍You represent and warrant that:
  1. You will use the Links without manipulation or modification of any kind;
  2. You will not “self-refer,” and you acknowledge that only transactions by Customers who are not you using your Link may result in Affiliate Fees;
  3. You will not engage in any behaviors that are fraudulent, abusive, or harmful to Company, the Site, or the Program, as determined by us in our sole discretion;
  4. Your Website(s) will not in any way copy, resemble, or mirror the look and feel of the Site, and you will not use any means to create the impression that any of Your Website(s) is the Site or any part of the Site, including by framing of the Site in any manner;
  5. You will not engage in cookie stuffing or include pop-ups or false or misleading links on Your Website(s), and you will not attempt to mask the referring URL information (i.e., the page from which the click is originating);
  6. You will not send your Link or any marketing messages in connection with the Program to any third party via SMS or text message;
  7. You will not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (also known as cloaking);
  8. You have express permission and all necessary rights to use reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of (as applicable) any and all materials (such as text, images, graphics, illustrations, logos, trademarks, and service marks) that are owned by third parties and that you use in connection with the Program and/or Your Website(s);
  9. You will not send unsolicited bulk-emails (spam);
  10. You will not create advertisements that appear on (A) sites and apps that contain or reference adult content, pornography, weapons, graphic violence (including any violent video game images), alcohol, drugs, tragedy, transportation accidents, sensitive social issues, gambling, or content that is offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), or that are solicitous of any unlawful or offensive behavior; or (B) fake news content, in each case as determined by us in our sole discretion;
  11. Subject to Section 9, you will not use any images, text, or other content provided to you by Company;
  12. You will not offer discounts, coupons, extended free trials, promo codes, or any other promotional offer in relation to the Program that is not expressly authorized by Company in writing. Company may, on a case-by-case basis, offer you access to discounts, coupons, free trials, promo codes, or other promotional offers, and you agree to comply with all terms and conditions that Company establishes in connection with such promotional offers; and
  13. Unless otherwise agreed upon in writing by Company, you will not promote any Company products or services through a sub-affiliate network.
C) Pay-Per-Click (“PPC”) Restrictions:
  1. You may not bid on any Restricted Terms (as defined below), including any variations or alternative spellings thereof, for search or content-based campaigns on Google, Bing, MSN, Yahoo, Facebook or any other network. “Restricted Terms” means the following terms: CircleCo, CircleCo Inc. CircleCo LLC, Circle.so, www.circle.so, Circle coupon, Circle discount code, Circle discount, Circle promo code, Circle sale, Circle promo, Circle sales, and Circle deals.
  2. You may not use any Restricted Terms, including any variations or alternative spellings thereof, in sequence with any other keyword.
  3. You may not use any Restricted Terms in your ad title, ad copy, or display name, or as the display URL of any of Your Website(s).
  4. You may not use any of our trademarked terms as part of the domain or sub-domain for any of Your Website(s).
  5. You may not direct link to the Site from any PPC ad or use redirects that yield the same result. Customers must be directed to an actual page on Your Website.
We have a strict no tolerance policy on PPC trademark bidding. We will not enter into a discussion about when the violation started and when it stopped; you will forfeit all Affiliate Fees for the time in question, your Affiliate Fee balance will be set to $0 without warning, and we may terminate your participation in the Program in our sole discretion, with or without notice. D) General Advertising Restrictions: You represent and warrant that Your Website(s), social media posts, and any other advertising materials will not:
  1. Infringe on our or anyone else’s Intellectual Property Rights (as defined below), publicity rights, privacy rights, or other rights;
  2. Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, offensive, or contains nudity, pornography, or sexually explicit materials, as determined by us, in our sole discretion;
  3. Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to, or are likely to, damage, interfere with, surreptitiously intercept or expropriate any system, data, or Personal Information (as defined below); or
  4. Contain software or use technology that attempts to intercept, divert, or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate payments from another website. This includes toolbars, browser plug-ins, extensions, and add-ons.
E) Social Media Restrictions: You represent and warrant that, to the extent you advertise or promote our products and/or services on Facebook, Twitter, Instagram, YouTube, Pinterest, TikTok, and/or other social media platforms (collectively, “Social Media Platforms”):
  1. Infringe on our or anyone else’s Intellectual Property Rights (as defined below), publicity rights, privacy rights, or other rights;
  2. You will NOT post your Links on our or on any third party’s Social Media Platforms, or on the Site;
  3. You will NOT run ads on any Social Media Platforms containing any of our names, trademarks, service marks, or logos; and
  4. You will NOT create any Social Media Platform accounts, forums, or groups (including, without limitation, Facebook Groups) that include any of our names, trademarks, service marks, or logos in the page/group/forum name and/or username.
For clarity, you ARE allowed to promote our products and/or services to your own lists; more specifically, you are welcome to use your Links on your own Social Media Platforms. For example, you may post, “25% off sale at Circle through Wednesday with this link,” provided that your post is truthful and otherwise in compliance with the terms and conditions of this Agreement. F) Privacy Restrictions: Without limiting the generality of Section 5(a) above, you represent and warrant that you will respect the privacy of consumers (including, without limitation, Customers) and be transparent about your data collection and use practices, including by:
  1. Not collecting Personal Information about any individual, unless you have provided notice to, and obtained any applicable consent of, the individual in question, in each case in accordance with Applicable Law. “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household (e.g., names, email addresses, and phone numbers);
  2. Not, under any circumstances, engaging in “scraping” or any other form of automated data collection to collect Personal Information; and
  3. Not contacting people with promotional materials unless they have consented, as applicable, to being contacted through the medium you use, and it is done in accordance with Applicable Law
Additionally, you will promptly notify Company in the event of any Privacy Incident, and you will promptly and fully cooperate with Company in the event that Company escalates to you, or requests your cooperation with, any Privacy Incident. A “Privacy Incident” includes any allegation that you have not properly provided notice with respect to, or obtained consent to, collect Personal Information; that you sent SMS/text messages to any third party in connection with the Program; or that you engaged in phone calls or email messages, or collected data, in a manner inconsistent with your privacy policy, user notice, and/or Applicable Law.

6) FTC Disclosure Requirements

Without limiting the generality of Section 5(a) above, where it is not expressly clear that the Link is a paid advertisement, paid advertising, or otherwise promotional in nature, and/or that you are receiving compensation from Company in connection with the Program, you must include a disclosure statement that is in compliance with all FTC Guidelines (each, a “Material Connection Disclosure Statement”) within any and all pages, blog posts, social media posts, and/or any other content where you include a Link or otherwise advertise or endorse our products and/or services, the Site, or Company in connection with the Program. Each Material Connection Disclosure Statement will clearly and concisely state that we are compensating you for your participation in the Program. Additionally, any statements you make about Company, the Program, and/or our products and services must reflect your honest opinions, beliefs, and/or experiences and must not be false, misleading, or unsupported. Each Material Connection Disclosure Statement you make will adhere to the following guidelines:
  • Each Material Connection Disclosure Statement will appear as close as possible to the claim(s) to which it relates;
  • Each Material Connection Disclosure Statement will be placed above the fold; scrolling should not be necessary to find the Material Connection Disclosure Statement (e.g., the Material Connection Disclosure Statement should be visible before the jump); and
  • No Material Connection Disclosure Statement will be in the form of a pop-up.
The “FTC Guidelines” include, without limitation, the FTC’s “Dot Com Disclosures” guidelines (available at http://www.ftc .gov /os /2013 /03/ 130312 dot com disclosures.pdf), the FTC’s Endorsement Guides (available at https://www. ftc. gov/tips-advice/ business-center/ guidance/ ftcs-endorsement-guides-what-people-are-asking), the FTC’s Native Advertising guidelines (available at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses), and any other applicable FTC guidelines that are available or become available during the term of this Agreement, in each case as may be amended or updated from time to time.

7) Audits/Records

You will maintain accurate and complete records relating to your conduct in connection with the Program during your participation in the Program and for three (3) years thereafter. Upon request, you will enable Company or its designated service provider to audit your records and other relevant materials to verify your compliance with this Agreement and any other guidelines we may make available from time to time. In addition, you will promptly provide such records and other materials, and provide other cooperation and assistance, as may be reasonably requested by Company from time to time. You will promptly notify Company in writing of any inquiry received by you from any news media, reporter, publication, trade association or governmental authority, and of any complaints or allegations of wrongdoing received by you, with regard to Company, the Program, or your conduct under this Agreement and/or in connection with the Program.

8) Modification and Termination

Company reserves the right to change, modify, and/or eliminate the Program and/or all or any portion of this Agreement or any policy pertaining to the Program in its sole discretion, at any time, for any or no reason, including by discontinuing or changing the benefits or terms applicable to the Affiliate Fees, or by merging the Program with another program. If we make such changes, we will post the amended Agreement to https://circle.so/affiliate-terms-and-conditions/ and update the ‘last modified’ date above. We may also attempt to notify you of such changes in other ways, including via email. Unless otherwise stated by us in writing, the amended Agreement will be effective immediately upon its posting, and your continued participation in the Program after the amended Agreement is posted will confirm your acceptance of the changes.  If you do not agree to the amended Agreement, you must stop participating in the Program. The maintenance and the updating of Your Website(s) will be your sole responsibility. We have the right to monitor Your Website(s) at any time to determine whether you are following the terms and conditions of this Agreement. We may notify you of any changes to Your Website(s) that must be made for your participation in the Program to continue. If you do not promptly make the requested changes to Your Website(s), we may terminate your participation in the Program.You may terminate your participation in the Program, with or without cause, by giving us ten (10) days’ written notice.  Upon such termination, you will immediately cease all activities in connection with the Program, and you will immediately cease all use of, and remove from Your Website(s), all Links and all materials provided by or on behalf of us to you (including all Licensed Materials (as defined below)) in connection with the Program. Upon such termination, you will cease accruing rights to additional Affiliate Fees and will receive no additional Affiliate Fees.  Any outstanding payment obligations and all provisions that, by their nature, should survive the termination of this Agreement, including Sections 7 (Audits and Records), 8 (Modification and Termination), 9(d), 10 (Representations and Warranties), 11 (Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Governing Law, Arbitration, and Class Action/Jury Trial Waiver), 15 (Confidentiality), and 16 (Miscellaneous), will survive the termination of this Agreement.

9) Licensed Materials; Ownership

  1. Subject to your continuing compliance with the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, and limited right to (i) access the Site through the Links, solely in accordance with the terms and conditions of this Agreement, including, without limitation, the restrictions set forth in Section 5; and (ii) solely in connection with the Links, and subject to any brand guidelines provided by Company to you in writing (as the same may be amended or updated from time to time), use and display our logos, trade names, trademarks, and similar identifying materials that are designated by us in writing for such purpose, including marketing and advertising information that we may provide to you or authorize for such purpose (collectively, the “Licensed Materials”).
  2. You are entitled to use the Licensed Materials in accordance with Section 9(a) above solely so long as, and to the extent that, you are a member in good standing of the Program, as determined by us, in our sole discretion. You agree that all uses of the Licensed Materials will be on behalf of Company, and that all goodwill associated therewith will inure to the sole benefit of Company.
  3. You will not use the Links or the Licensed Materials in any manner that is disparaging, misleading, or obscene, or that otherwise portrays Company in a negative light.
  4. Except for the limited right granted to you under this Section, you do not obtain any rights under this Agreement in any intellectual property belonging to Company or its licensors. Company reserves all rights not expressly granted herein in and to the Site and all materials therein or transferred thereby, including, without limitation, software, images, text, illustrations, graphical artwork and graphics, photographs, audio, videos, music, patents, and copyrights; the Links and link formats; the Licensed Materials; any technical specifications and/or guidelines we may make available; our products and services; and our domain name(s).

10) Representations and Warranties

You represent and warrant that:

  1. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and that the performance of your obligations under this Agreement does not (and will not) constitute a breach of, or conflict with, any other agreement or arrangement by which you are bound;
  2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
  3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement such that the rights you grant are valid, complete, and do not and will not infringe any third-party rights or violate any Applicable Laws; and
  4. You will not, directly or indirectly, (i) engage in any unfair, anti-competitive, unethical, misleading, or deceptive acts or practices in connection with this Agreement and/or the Program, including, without limitation, any acts that are or might be detrimental to the public or to the goodwill or reputation of Company, our products and/or services, the Program, and/or the Licensed Materials, including any dissemination, display, or use of any false, misleading, or deceptive representations, depictions, or materials for or in connection with the Program; or (ii) make any promises, representations, warranties, or other commitments: (x) actually, apparently, or impliedly on Company’s behalf, or (y) concerning or relating to our products or services that are neither contained in the Terms of Service nor pre-approved by Company in writing.

11) Disclaimer

THE PROGRAM, THE LINKS, THE SITE, AND THE LICENSED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND.  COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN CONNECTION WITH THE FOREGOING, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR LOSS OF DATA. YOU UNDERSTAND THAT, IN THE COURSE OF CONDUCTING ACTIVITIES RELATED TO THE PROGRAM, YOU MAY INTERACT WITH THIRD PARTIES THAT MAY POSE HARM OR RISK TO YOU OR OTHERS. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE PROGRAM.  COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY OTHER AFFILIATE, OR ANY OTHER THIRD PARTY.

12) Limitation of Liability

IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT, AND STRICT LIABILITY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE OR GOODWILL, ANTICIPATED PROFITS, AND LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AFFILIATE FEES PAID TO YOU UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

13) Indemnification

You will indemnify, hold harmless, and (at Company’s option) defend Company and its affiliates, and it and their respective directors, officers, employees, consultants, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) with respect to any third-party claim arising out of or related to: (a) your conduct in connection with the Program and/or this Agreement, including the actions and omissions of Affiliate Representatives; (b) allegations that any content or other material you use, distribute, reproduce, modify, publish, list information regarding, edit, translate, syndicate, make derivative works of, display, or perform on Your Website(s) or otherwise in connection with the Program and/or this Agreement infringes, misappropriates, or violates any Intellectual Property Right or right of publicity (except to the extent such content or material is unmodified Licensed Material); (c) allegations that any of the messages you send or your communications, or your participation in, or activities conducted in connection with, the Program violate any Applicable Law, including, without limitation, the CAN-SPAM Act and the Telephone Consumer Protection Act; (d) any claim related to Your Website(s), including any content therein; (e) your failure to satisfy any debt, obligation, or liability, including your failure to comply with your obligations to any Affiliate Representative, including payment of wages, provision of benefits, and payment of employment taxes; or (f) your breach of this Agreement, including any of your representations, warranties, or obligations hereunder. Unless Company directs otherwise in writing or elects to control the defense of any claim for which you are required to indemnify Company hereunder (an “Indemnified Claim”), you will assume the defense of the Indemnified Claim through counsel designated by you and reasonably acceptable to Company, and Company may, at its expense, participate in the defense of the Indemnified Claim with its own counsel. You will not settle or compromise any Indemnified Claim, nor consent to the entry of any judgment, without the prior written consent of Company. Company will reasonably cooperate with you in the defense of an Indemnified Claim, provided that you reimburse Company for its costs and expenses as they are incurred to provide such cooperation.

14) Governing Law, Arbitration, and Class Action/Jury Trial Waiver

A) Governing Law: ‍This Agreement will be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 14(b) and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue will be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”), as set forth in the Arbitration Agreement below, including any provisional relief required to prevent irreparable harm. You agree that New York is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Agreement below is found to be unenforceable. B) Arbitration Agreement: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. This Arbitration Agreement applies to and governs any dispute, controversy, or claim between you and Company that arises out of or relates to, directly or indirectly: (i) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, and/or enforceability thereof; (ii) the Program and any related transactions; (iii) Your Website(s), the Site, and/or the Links; and/or (iv) any other aspect of your relationship or transactions with Company, directly or indirectly (each, a “Claim,” and, collectively, “Claims”). This Arbitration Agreement will apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.If you are new to the Program, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting this Agreement by emailing Company at legal@circle.so with your full name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.For any Claim, you agree to first send an email containing your name, address, and contact information, the facts giving rise to the Claim, and the relief requested to legal@circle.so (such email, the “Notice of Claim”), and to attempt to resolve the Claim with us informally. In the unlikely event that Company and you have not been able to resolve your Claim within sixty (60) days of the Notice of Claim, we each agree to resolve such Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement will control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county in which you reside or in New York City, unless you and Company agree otherwise. Each party will be responsible for paying any AAA filing, administrative, and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and Company agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, and/or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement, or any provision of this Agreement, is unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and estoppel.Nothing in this Arbitration Agreement will be deemed as: preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security or Intellectual Property Rights; or preventing you from asserting claims in a small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Arbitration Agreement, which will remain in force, or on the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration. C) Class Action/Jury Trial Waiver: ‍ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE AFFILIATE’S CLAIMS. YOU AND COMPANY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER AFFILIATES. YOU AND COMPANY FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.

15) Confidentiality

You will not disclose to any third party any nonpublic information disclosed by Company to you, directly or indirectly, under or in connection with this Agreement and/or the Program (“Confidential Information”). You will protect all Confidential Information using at least the same degree of care you would use to protect your own confidential information of like importance, but in no event less than reasonable care. You will not use Confidential Information for any purpose other than the purpose for which it was disclosed to you. All Confidential Information is and remains the property of Company or its licensors, as applicable. If any Confidential Information is required to be produced by law, you will promptly notify Company of such requirement and you will cooperate with Company to obtain an appropriate protective order prior to such disclosure. In the event that Company is unable to obtain a protective order or other appropriate remedy, or if it so directs you, you will furnish only that portion of the Confidential Information that is required, and you will exercise your reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information. Unauthorized use or disclosure of Confidential Information may cause harm not compensable by damages, and, therefore, Company may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information from any breach or threatened breach of this Section. Promptly upon Company’s request, you will return all Confidential Information to Company, or, at Company’s option, securely destroy it and certify destruction.

16) Miscellaneous

  1. You agree that you are an independent contractor, and that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Website(s) or otherwise, that would reasonably be interpreted as contradicting anything in this Section.
  2. Customers who make transactions through the Program are our customers. All of our standard policies and operating procedures will apply to all Customers. We may change our policies and operating procedures at any time. Product prices and availability may vary from time to time.
  3. You may not, at any time, assign your rights or obligations under this Agreement to any party without the express prior written consent of Company. Company may freely assign this Agreement and any of its rights hereunder.
  4. You may not amend or waive any provision of this Agreement, unless such amendment or waiver is memorialized in a writing that is signed by both parties.
  5. This Agreement represents the entire agreement between us and you with respect to the Program, and supersedes all prior agreements and communications of the parties, oral or written, with respect thereto.
  6. The headings and titles contained in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement. The use of the terms “include,” “includes,” or “including” is illustrative and not limiting.
  7. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement will remain in full force and effect.
  8. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
  9. This Agreement will not be construed to be a commitment by Company to collaborate exclusively with Affiliate with respect to any business activities. You acknowledge that we may, at any time, admit others into the Program. You have independently evaluated the desirability of participating in the Program, and you are not relying on any representation, guarantee, or statement other than the terms set forth in this Agreement.
  10. Each party is responsible for its own expenses related to this Agreement.