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.
To enroll in the Program, you must (a) complete the registration process and agree to this Agreement; and (b) provide a valid PayPal account for receiving payment. After verification of your PayPal 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 account due to your place of residence or for any other reason, you may not participate in the Program. Your use of PayPal will be subject to separate terms made available by PayPal, 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.
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, 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, if a Customer is on a monthly payment plan for $19.80 a month, you may be entitled to receive an Affiliate Fee of $X for every month during which such Customer is an active, paying customer of Company. 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 “LinkMink Account”) (or, if your LinkMink Account has insufficient funds for such debit, your PayPal account or bank account linked to your LinkMink 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.
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.
You represent and warrant that:
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.
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.
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.