Affiliate Partner Program Agreement

As an OAD Affiliate, You have the opportunity to earn money from (i) commissions for OAD accounts that You sell to other users, and (ii) potential bonuses when the people you sell to sell to others.

By signing up for an Affiliate Partner Account or participating in OAD’s Affiliate Partner Program, you agree to be bound by this Affiliate Partner Program Agreement (the “Agreement”). The Agreement is between you, as an Affiliate Partner, and OAD, LLC (“OAD”). Each of Affiliate Partner and OAD, a “Party”, and together the “Parties”. All references to “You” and “Your” mean and refer to that OAD Affiliate Partner who has executed this Agreement by clicking “I Agree.” Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined in Section 10.15.

OAD’s Privacy Policy and Acceptable Use Policy form part of this Agreement and are incorporated by reference. For the purposes of the Affiliate Partner Program and this Agreement, all references to “Account” in OAD’s Acceptable Use Policy will be deemed to refer to “Affiliate Partner Account”. Some types of OAD Affiliate Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

OAD reserves the right to make changes to this Agreement from time to time by posting dated updates to OAD.ai/terms/. Your continued participation in the OAD Affiliate Partner Program after we make changes is deemed to be acceptance of those changes, so please check periodically for updates. If Affiliate Partner does not agree to any changes to the Agreement, Affiliate Partner must terminate the Agreement by discontinuing its participation in the OAD Affiliate Partner Program. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement sets forth Your rights and obligations as an OAD Affiliate Partner. By clicking “I Agree” You indicate that You have read and understood this Agreement and You will be bound by its terms.

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THE ARBITRATION CLAUSE, YOU AND OAD AGREE THAT ALL DISPUTES RELATING TO THESE TERMS OR YOUR PARTICIPATION IN THE AFFILIATE PARTNER PROGRAM WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. AFFILIATE PARTNER RESPONSIBILITIES

1.1 Marketing Activities

Affiliate Partners will use their best efforts to (i) promote and market OAD, and (ii) identify prospective Clients for OAD. A “Client” is an individual or business that uses OAD’s Platform. Affiliate Partner will bear all costs and expenses related to Affiliate Partner’s marketing or promotion of OAD or any OAD Entity, and any other products or services associated with Affiliate Partner’s participation in the Affiliate Partner Program in any area, location, territory or jurisdiction.

1.2 Unauthorized & Prohibited Activities

Affiliate Partner will not:

• use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to OAD or any OAD Entity;
• make any false or misleading representations or statements with respect to OAD or any OAD Entity;
• disparage the products or services of any other person or entity, including without limitation the products or services of a competitor of OAD or any OAD Entity;
• target Clients with the intention of enticing Clients away from the Platform;
• copy, resemble or mirror the look and feel of OAD’s websites, OAD Trademarks or services or otherwise misrepresent Affiliate Partner’s affiliation with OAD or any OAD Entity;
• engage in any practices which may adversely affect the credibility or reputation of OAD or any OAD Entity, including but not limited to using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to OAD or the Affiliate Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, (c) violates any intellectual property or other proprietary rights of any third party, (d) violates the Acceptable Use Policy, or (e) violates the Privacy Notice;
• use its Affiliate Link directly in any pay-per-click advertising;
• purchase search engine or other pay-per-click keywords (such as Google Ads), trademarks or domain names that use the OAD Trademarks or the names or trademarks of any OAD Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the OAD Trademarks or the names or trademarks of any OAD Entity;
• create or participate in any third party networks or sub-affiliate networks without the express written permission of OAD;
• use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links; or
• mask its referral sites or use deceptive redirecting links.

1.3 Compliance & Sanctions

Affiliate Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules, regulations, and directives, including but not limited to those relating to email marketing and “spamming”. Affiliate Partner will obtain any licenses required in order for Affiliate Partner to operate and to offer the products or services associated with Affiliate Partner’s participation in the Affiliate Partner Program.

Without limiting the generality of the foregoing, Affiliate Partner will (i) not send any email, SMS, other communications regarding OAD, any OAD Entity, or the Platform to any individual or entity that has not consented to receive such communications; (ii) always include Affiliate Partner’s contact information and “unsubscribe” information in any such communications regarding OAD, any OAD Entity, or the Platform; and (iii) not imply that such emails are being sent on behalf of OAD, any OAD Entity, or the Platform.

Affiliate Partner represents and warrants that (i) none of the Affiliate Partner, its subsidiaries, its directors, officers, or employees engaged with OAD, any OAD Entity, or the Affiliate Partner Program is a Sanctioned Person or is owned or controlled by one or more Sanctioned Persons and (ii) Affiliate Partner is not resident or located in or organized under the laws of an Unsupported Region. In the event that the Affiliate Partner becomes aware or suspects that the foregoing representation and warranty may no longer be accurate, it will immediately notify OAD in writing. Without limiting the foregoing, in performing its obligations and participating in the Affiliate Partner Program under this Agreement, the Affiliate Partner agrees that Affiliate Partner will not engage directly or indirectly in any activities or transactions that involve, relate to, or benefit a Sanctioned Person or Unsupported Region.

1.4 FTC Guidelines

The Federal Trade Commission in the United States (“FTC”) has guidelines governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Affiliate Partner Program with OAD, Affiliate Partner receives compensation for the Referred Client referrals made to OAD. This may establish a “material connection” according to FTC rules, which creates an obligation for Affiliate Partner to provide disclosure to consumers.

Full compliance with these guidelines requires, among other things, that (a) Affiliate Partner clearly and conspicuously disclose that Affiliate Partner is being compensated for referring Referred Clients to OAD, and (b) Affiliate Partner not engage in misleading or deceptive advertising.

1.5 Affiliate Partner Duty to Inform

Affiliate Partner will promptly inform OAD of any information known to Affiliate Partner that could reasonably lead to a threat, claim, demand or liability of or against OAD or any OAD Entities by any third party.

1.6 Affiliate Partner Duty to Disclose

If Affiliate Partner is acting as an agent on behalf of a Client, then Affiliate Partner will disclose to the Client any Fees that Affiliate Partner is entitled to receive from OAD in accordance with this Agreement that are associated with such Client.

1.7 Other Affiliate Partner Terms

• To access and use the Platform, an Affiliate Partner must first register for a Platform account and agree to OAD’s Platform Terms of Service.
• If an Affiliate Partner is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Affiliate Partner activities. You confirm that you are becoming an Affiliate Partner for the purposes of carrying on a business activity and not for any personal, household or family purpose.
• To become an Affiliate Partner, an Affiliate Partner must create an Affiliate Partner Account by providing all information indicated as required. OAD may reject an application for an Affiliate Partner Account for any reason, in its sole discretion. Each Affiliate Partner Account must include a full legal name, a valid email address, and the required information needed to facilitate payment to Affiliate Partner’s PayPal account. Affiliate Partner acknowledges that OAD will use the email address provided by Affiliate Partner as the primary method for communication.
• Each Affiliate Partner Account login should be associated with a single user. Affiliate Partner is responsible for keeping its Affiliate Partner Account password secure. OAD cannot and will not be liable for any loss or damage arising from Affiliate Partner’s failure to maintain the security of the Affiliate Partner Account and password. OAD may request additional security measures at any time and reserves the right to adjust these requirements at its discretion.
• If you sign up for an Affiliate Partner Account on behalf of your employer, your employer will be deemed to be the Affiliate Partner for the purpose of this Agreement. You represent and warrant that you have the authority to bind your employer to this Agreement. Each Affiliate Partner is responsible for: (a) ensuring that its employees, agents and subcontractors follow this Agreement and (b) any breach of this Agreement by Affiliate Partner’s employees, agents or subcontractors.
• Affiliate Partner acknowledges and agrees that Affiliate Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Affiliate Partner.
• Affiliate Partner acknowledges and agrees that Affiliate Partner may only access Client Sites for the purpose of performing work authorized by the respective Client.
• The Affiliate Partner shall acknowledge and promptly respond to reasonable requests for information from OAD. From time to time, the Affiliate Partner shall take such action and execute and deliver such documents as OAD reasonably requests. In addition and without limiting the foregoing, in the event that OAD contacts the Affiliate Partner in connection with its Affiliate Partner Account and requests acknowledgment or response to such communication, the Affiliate Partner shall respond to OAD promptly. In the event Affiliate Partner does not respond to OAD’s request for information or action, OAD retains the right to terminate your Affiliate Partner Account or take any action it deems reasonable in its sole discretion.

2. INDEPENDENT CONTRACTOR

You are an independent contractor of OAD. It is the express understanding and intention of the Parties that no relationship of master and servant or principal and agent shall exist between OAD and You by virtue of this Affiliate Agreement.

3. TERM AND TERMINATION

3.1 Termination

Your contract with OAD begins when You click “I Agree,” and will continue month-to-month until either:

1. OAD cancels Your account if OAD determines (in its sole discretion) that you are in breach of any of the terms of this Agreement; engaged in any fraudulent behavior or other unacceptable behavior, OAD may (in its sole discretion) take one or more of the following actions: (a) terminate of Affiliate Partner’s affiliation with any of their Referred Clients, (b) suspend of some or all Affiliate Partner privileges under the Affiliate Partner Program (including such Affiliate Partner’s claim to any Fees), and (c) terminate the Affiliate Partner’s Affiliate Partner Account entirely without notice to, or recourse for, Affiliate Partner. In the event this Agreement is cancelled voluntarily by OAD due to Your breach, You forfeit all Commissions and Bonuses owed to You or that may in the future be owed to You.

     or

1. OAD or its successors or assigns, in its sole and absolute discretion, cancels Your Affiliate Agreement. In the event that OAD or its successors or assigns cancels Your Affiliate Agreements, You will first receive thirty (30) days’ written notice, sent to the e-mail address you provided OAD and that is associated with your Affiliate profile.

3.2 Consequences of Termination

3.2.1 Upon termination of this Agreement: (a) each Party will return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all OAD Creative and all Confidential Information); (b) Affiliate Partner will immediately cease displaying any OAD Creative or any OAD Trademarks on any Website or otherwise; and (c) all rights granted to Affiliate Partner under this Agreement will immediately cease, including but not limited to the right of Affiliate Partner to access the Affiliate Partner Account and Affiliate Partner Dashboard, or to receive any payments of Fees under this Agreement, unless otherwise determined by OAD in its sole discretion.

3.2.2 This Section 3.2 and the following Sections will survive any termination or expiration of this Agreement: Section 5 (Intellectual Property Rights), Section 6 (Confidentiality), Section 7 (Prohibited Activity), Section 8 (Disclaimer), Section 9 (Limitation of Liability and Indemnification), and Section 10 (General Provisions). In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.

4. COMPENSATION

4.1 Affiliate Partner Status & Fees

 4.1.1 Commissions

After You click “I Agree” to the terms of this Agreement, You will receive a unique Affiliate URL, which You will use to advertise OAD. When another person (a “Prospect”) clicks through that URL, a cookie (or similar tracking technology (hereinafter “Cookie”)) will be set in the Prospect’s browser. When the Prospect creates an OAD account by using Your Affiliate Link, the Cookie on the Prospect’s browser, corresponding to Your unique URL, registers a “Sale,” and each such account is a “Sold Account.” In the event that a Prospect has multiple Affiliate Cookies, the most recently-acquired Cookie will determine which Affiliate is credited with a Sale. You will be paid a commission for each Sold Account that generates actually received by OAD in a month. The Commission amount is 30% of all Subscription Revenue received by OAD for a Sold Account.

“Subscription Revenue” means the revenue actually received by OAD from an Active Referred Client for their base subscription to the Platform during the applicable calendar month, consisting of either: (i) the full quarterly fee paid under a quarterly subscription plan, or (ii) annual subscription plan. Notwithstanding anything to the contrary, “Subscription Revenue” excludes, no Affiliate Partner will earn any Fees for, and OAD will not pay any Affiliate Partner any Fees for revenue:

• Paid to OAD for extras, feature limit increases, add ons (e.g. coaching reports, 360 reviews), and other OAD Payments;
• In active dispute or refunded to Clients by OAD;
• Tied to an Active Referred Client created or owned in whole or in part by the Affiliate Partner;
• Related to fraudulent sales;
• Subject to chargebacks;
• Payable to Affiliate Partners who are employed by OAD (full-time, part-time, term, or any other employment type);
• Payable to Affiliate Partners who are employed by the Client to whom the Fees relate (full-time, part-time, term, or any other employment type).

4.1.2 Deactivated Affiliate Partners & Reactivation

Any Affiliate Partner who does not refer at least three (3) new Referred Clients to OAD via their Affiliate Link in a 12 month period will be considered a “Deactivated Affiliate Partner” in the month following such 12 month period.

Deactivated Affiliate Partners are not eligible to receive any Fees (i.e. Commission) for any of their Active Referred Clients and forfeit any rights to receive such Fees, even if they eventually reactivate as described below.

A Deactivated Affiliate Partner may reactivate by (i) introducing at least three (3) new Referred Clients to OAD using their Affiliate Link and (ii) remaining in compliance with this Agreement. If a Affiliate Partner reactivates, their Affiliate Partner status will be considered as New Affiliate Partner. All Active Referred Clients prior to deactivation will not be reassociated with the Affiliate Partner after reactivation.

4.2 Payment

4.2.1 Calculation and Payment of Fees

OAD will calculate and pay Fees due to Affiliate Partner for each calendar month within ninety (90) days after the end of such calendar month. OAD will pay any earned Fees to the PayPal account designated by Affiliate Partner in their Affiliate Partner Account, unless otherwise agreed in writing by OAD in its sole discretion. Commission payments will be made to You on or before ninety (90) days following OAD’ receipt of payment for a Sold Account, subject to the other terms set in Section 4.1.1.

4.2.2 Taxes

All Fees arising from activities under this Agreement are exclusive of any applicable taxes (“Taxes”). The Affiliate Partner is responsible for any Taxes resulting from any Fees they are paid by OAD, activities under this Agreement, including transactions with a Client. If OAD does not collect Taxes on Fees or on a Affiliate Partner’s transaction with a Client, the Affiliate Partner must determine if Taxes are due and, if so, pay them to the proper authorities. If You are not a resident of the United States, OAD may withhold tax (including without limitation VAT) where required to by applicable law. Where OAD is required to withhold tax, OAD will document such withholding.

4.2.3 Required Payment Information

OAD may withhold payment of Fees if Affiliate Partner does not provide the required information needed to facilitate payment in their Affiliate Partner Account or as otherwise designated by OAD in writing (“Required Payment Information”). If the Affiliate Partner does not provide the Required Payment Information within 180 days of OAD’s request for such information, the Affiliate Partner permanently forfeits payments for any calculated but unpaid Fees.

4.2.4 Fraud & Risk Analysis

All payments under this Agreement are subject to fraud and risk analysis, and anti-money laundering procedures. OAD may withhold payment of Fees during any investigation in its sole discretion.

4.2.5 Reclaimed or Offset Payments

If OAD discovers that any Fees previously paid to a Affiliate Partner fall under one or more of the exclusions in the definition of “Subscription Revenue” in Section 4.1.1, or were otherwise paid in error, OAD may, at its sole discretion: (i) reclaim those Fees from the Affiliate Partner, or (ii) offset the relevant amounts from future payments of Fees earned by the Affiliate Partner or from the Affiliate Partner’s OAD Payments balance (if applicable).

If this Agreement is terminated before the Affiliate Partner repays any outstanding amount, the Affiliate Partner must pay the remaining balance to OAD within 30 days of the termination’s effective date.

4.2.6 Inventory Loading or Rebates

You will not be paid any Commission or Bonus for payments made on your own User Account(s). You are not permitted to open an OAD account under the name of another person or entity, or under a fictitious name. You are not permitted to open an OAD account under any name merely for the purpose of obtaining Commissions, Bonuses, or any other compensation, including without limitation incentives or prizes which may be offered from time to time. You may not pay for another person’s account. You are not permitted to offer cash rebates or other monetary incentives to actual or potential Sales. Violation of this paragraph shall constitute a material breach of this Agreement, and You agree to repay to OAD all Commissions and Bonuses earned as a result of any such violation.

4.2.7 Minimum Commission Payment

Your commission amount must equal or exceed Three Hundred and 00/100 Dollars ($300.00) before You receive a payment from OAD. If Your commissions for a given month are less than $300.00, Your commissions will be held until Your commissions equals or exceeds $300.00.

4.2.8 US Dollars. Payment Processing Fees

 All commissions are paid in US Dollars. Depending on what payment processor or payment method You instruct Us to use (such as PayPal), processing fees may be deducted from Your Commissions payment. 

5. INTELLECTUAL PROPERTY RIGHTS

5.1 OAD Creative

5.1.1 All OAD Creative will be solely created and provided by OAD unless otherwise agreed to by OAD in writing in advance. OAD will provide Affiliate Partner with copies of or access to OAD Creative. The OAD Creative may also be accessible from the Affiliate Partner Program website and the OAD brand guidelines (“OAD Brand Guidelines”). By using the OAD Creative, you indicate your acceptance of our OAD Brand Guidelines and you understand that a violation of these guidelines or this Agreement will cause the termination of your license or permission to use the OAD Creative. OAD Creative is provided “AS IS” and without warranty of any kind.

5.1.2 Affiliate Partner may display OAD Creative on the Websites solely for the purpose of marketing and promoting the OAD Affiliate Partner Program and OAD during the term of this Agreement, or until such time as OAD may, upon prior notice, instruct Affiliate Partner to cease displaying the OAD Creative. Affiliate Partner may not alter, amend, adapt or translate the OAD Creative without OAD’s prior written consent. Nothing contained in any OAD Creative will in any way be deemed a representation or warranty of OAD or of any of OAD Entity. The OAD Creative will at all times be the sole and exclusive property of OAD and no rights of ownership will at any time vest with Affiliate Partner even in such instances where Affiliate Partner has been authorized by OAD to make changes or modifications to the OAD Creative.

5.2 OAD Trademarks

During the term of this Agreement, OAD hereby grants to Affiliate Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable worldwide license to display the OAD Trademarks solely as necessary to perform Affiliate Partner’s obligations under this Agreement. Affiliate Partner acknowledges and agrees that: (a) it will use OAD’s Trademarks only as permitted under this Agreement; (b) it will use the OAD Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by OAD in writing from time to time, including but not limited to the OAD Brand Guidelines; (c) the OAD Trademarks are and will remain the sole property of OAD; (d) nothing in this Agreement will confer in Affiliate Partner any right of ownership in the OAD Trademarks and all use thereof by Affiliate Partner will inure to the benefit of OAD; (e) Affiliate Partner will not, now or in the future, apply for or contest the validity of any OAD Trademarks; and (f) Affiliate Partner will not, now or in the future, apply for or use any term or mark confusingly similar to any OAD Trademarks.

5.3 Restrictions on Affiliate Partner’s Use of the OAD Trademarks

Notwithstanding Section 5.2, Affiliate Partners will not use the OAD Trademarks or variations or misspellings thereof in Affiliate Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services, unless granted express written permission by OAD in advance of each use; or purchase or register search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses or domain names that use the OAD Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the OAD Trademarks. Affiliate Partner is strongly encouraged to add the OAD Trademarks as negative keywords to help prevent violation of this Section.

5.4 Proprietary Rights of OAD

As between Affiliate Partner and OAD; (i) OAD Creative, (ii) OAD Trademarks, (iii) all information of any kind relating to Affiliate Partner Program, prospective Affiliate Partners and Affiliate Partners, the Platform, Client Data, and (iv) all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of OAD or OAD Entities or otherwise related to the Platform, OAD Affiliate Partner Program, OAD or OAD Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “OAD Property”) will be and remain the sole and exclusive property of OAD. To the extent, if any, that ownership of any OAD Property does not automatically vest in OAD by virtue of this Agreement, or otherwise, and vests in Affiliate Partner, Affiliate Partner hereby transfers and assigns to OAD, and agrees to assist in any reasonable requests to formalize, upon the creation thereof, all rights, title and interest Affiliate Partner may have in and to such OAD Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

5.5 OAD’s Use of Affiliate Partner’s Intellectual Property

Affiliate Partner grants to OAD a worldwide, non-exclusive, royalty-free, fully paid up, transferable and sub-licensable right and licence to use and display in any manner the Affiliate Partner’s trademarks, service marks, logos, trade names, copyrighted content, graphic files, images and other intellectual property, in connection with and for the purpose of performing its obligations and exercising its rights under this Agreement. In addition, at OAD’s sole discretion, OAD may use any such intellectual property for the purposes of promoting or marketing Affiliate Partner, Affiliate Partner’s products or services, or as otherwise agreed to with Affiliate Partner.

6. CONFIDENTIALITY

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, performance metrics, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between OAD and Affiliate Partner, Client Data and Customer Data is the Confidential Information of OAD.

Each Party agrees to use the other Party’s/ies’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 6. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

7. PROHIBITED ACTIVITY

OAD has the right to terminate this Agreement at any time if You engage or have ever engaged in any of the following:

1. HARMFUL ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to OAD reputation; and the violation of the rights of OAD or any third party.
2. “SPAMMING” AND UNSOLICITED COMMUNICATIONS. Any communications sent or authorized by You reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third party blogs) will be deemed a material threat to OAD reputation and to the rights of third parties. It is Your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.
3. OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorized by You, including without limitation postings on any website operated by You, or social media or blog, which are: sexually explicit, obscene, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; solicitous of unlawful behavior; or that violates the intellectual property rights of another.
4. DISCLAIMER

THE OAD AFFILIATE PARTNER PROGRAM, THE PLATFORM, THE OAD TRADEMARKS, AND THE OAD CREATIVE, ARE PROVIDED “AS-IS”. OAD MAKES NO WARRANTIES UNDER THIS AGREEMENT, AND OAD EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, OAD FURTHER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT THE OAD, THE OAD TRADEMARKS, OR THE OAD CREATIVE SATISFY ALL OF AFFILIATE PARTNER’S OR CLIENT’S REQUIREMENTS AND OR WILL BE UNINTERRUPTED, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS.

9. LIMITATION OF LIABILITY & INDEMNIFICATION

9.1 LIMITATION OF LIABILITY

OAD, AND THE OAD ENTITIES, WILL HAVE NO LIABILITY WITH RESPECT TO THE OAD AFFILIATE PARTNER PROGRAM, THE OAD, THE OAD TRADEMARKS, THE OAD CREATIVE OR OAD’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSSES OF PROFITS OR REVENUE, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING IN ANY WAY FROM THE OAD, THE OAD TRADEMARKS, THE OAD CREATIVE, OR AFFILIATE PARTNER’S PARTICIPATION OR INABILITY TO PARTICIPATE IN THE OAD AFFILIATE PARTNER PROGRAM, EVEN IF OAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, OAD’S, AND THE OAD ENTITIES’, LIABILITY TO AFFILIATE PARTNER UNDER THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE LESSOR OF (I) THE FEES PAID TO AFFILIATE PARTNER BY OAD DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES OR (II) FIVE HUNDRED ($500) U.S. DOLLARS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE RELATIONSHIP BETWEEN A CLIENT AND A AFFILIATE PARTNER IS STRICTLY BETWEEN THE CLIENT AND THE AFFILIATE PARTNER. NEITHER OAD NOR THE OAD ENTITIES ARE OBLIGED TO INTERVENE IN ANY DISPUTE ARISING BETWEEN THE CLIENT AND THE AFFILIATE PARTNER. UNDER NO CIRCUMSTANCES WILL OAD, OR THE OAD ENTITIES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, THAT RESULT FROM OR RELATE TO THE AFFILIATE PARTNER’S RELATIONSHIP WITH ANY CLIENT. THESE LIMITATIONS WILL APPLY EVEN IF OAD OR THE OAD ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

9.2 Affiliate Partner Indemnification

Affiliate Partner agrees to indemnify, defend and hold harmless OAD and any OAD Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any threatened claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Affiliate Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Affiliate Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to OAD and OAD Entities granted by Affiliate Partner to any Client, prospective Affiliate Partner or other third party; (d) Affiliate Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Client Agreement; (e) any third party claim that Affiliate Partner’s products or services infringes the intellectual property or other rights of a third party; (f) Affiliate Partner Taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Affiliate Partner’s products or services; (h) Affiliate Partner’s relationship with any Client; and (i) any breach of applicable law by the Affiliate Partner.

9.3 Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Affiliate Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Affiliate Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Affiliate Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

9.4 Non-exclusive remedies

In the event of any breach or threatened breach by Affiliate Partner of any provision of this Agreement, in addition to all other rights and remedies available to OAD under this Agreement and under applicable law, OAD will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Affiliate Partner’s access to the Affiliate Partner Program, (c) receive a prompt refund of all amounts paid to Affiliate Partner under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by OAD in connection with such violation, in accordance with the provisions of this Section 7.

10. GENERAL PROVISIONS

10.1 Force Majeure

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.

10.2 Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

10.3 Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes on the delivery date if delivered by email to Affiliate Partner’s email address listed in the Affiliate Partner Account, and to [email protected].

10.4 No Waiver

The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.

10.5 Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither OAD nor the Affiliate Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

10.6 Assignment

All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. OAD will be permitted to assign this agreement without notice to or consent from any Affiliate Partner. Affiliate Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without OAD’s prior written consent, to be given or withheld in OAD’s sole discretion. Transfer can include acquisition, merger, change of control, or other forms of transfer. To submit a request for OAD’s consent to assignment or transfer, contact [email protected].

10.7 Resolving Disputes, Arbitration Agreement, Governing Laws

10.7.1 Governing Laws

This Agreement will be governed by and interpreted in accordance with the laws of Wisconsin, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Waukesha, Wisconsin with respect to any dispute or claim arising out of or in connection with this Agreement.

10.7.2 Resolving Disputes

If the Affiliate Partner has a concern, we want the opportunity to address it without needing a formal legal case. Before filing a claim against OAD, Affiliate Partner agrees to try to resolve the dispute informally by contacting [email protected]. OAD will take reasonable efforts to resolve the dispute informally by contacting you via email. If a dispute is not resolved within thirty (30) days of the date OAD receives Affiliate Partner’s initial email, Affiliate Partner or OAD may bring a formal proceeding.

10.7.3 Judicial Forum for Disputes

Affiliate Partner and OAD agree that any judicial proceeding to resolve claims relating to this Agreement will be brought in the federal or state courts of Waukesha, Wisconsin, subject to the mandatory arbitration provisions below. Both Affiliate Partner and OAD consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, a member state of the European Union) with laws that give consumers the right to bring disputes in their local courts, this paragraph does not affect those requirements.

10.7.4 Mandatory Arbitration Provisions

IF AFFILIATE PARTNER IS A U.S. RESIDENT, AFFILIATE PARTNER ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

Agreement to Arbitrate. Affiliate Partner and OAD agree to resolve any claims relating to this Agreement, or any related matter, through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising from or relating to the interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.

Opt-out of Agreement to Arbitrate. Affiliate Partner may decline these arbitration terms with respect to these Terms within thirty (30) days of first registering your account by contacting us at [email protected].

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Waukesha, Wisconsin, or any other location we agree to. The AAA rules will govern payment of all arbitration fees. The AAA Rules and Forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.

Exceptions to Agreement to Arbitrate. Either Affiliate Partner or OAD may assert claims, if they qualify, in small claims court in Waukesha, Wisconsin, or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Platform or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Waukesha, Wisconsin to resolve your claim.

NO CLASS ACTIONS. Affiliate Partner may only resolve disputes with OAD individually. Affiliate Partner may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed. If this specific paragraph is held unenforceable, then this “Mandatory Arbitration Provisions” section will be deemed void.

10.8 Patent Non-Assertion

Affiliate Partner and its affiliates covenant not to assert patent infringement claims against OAD, OAD Entities, or OAD products and services including the Platform.

10.9 Competitive or Similar Materials

OAD is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Affiliate Partner’s products or services, regardless of their similarity to Affiliate Partner’s products or services, provided that OAD does not use Affiliate Partner’s Confidential Information in so doing.

10.10 Feedback

If Affiliate Partner provides any feedback (including identifying potential errors and improvements) to OAD concerning the Affiliate Partner Program, the OAD Creative or any aspects of the OAD (“Feedback”), Affiliate Partner hereby assigns to OAD all right, title, and interest in and to the Feedback, and OAD is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Affiliate Partner Program, the OAD Creative or the Platform and to create other products and services. OAD will treat any Feedback as non-confidential and non-proprietary. Affiliate Partner will not submit any Feedback that it considers confidential or proprietary.

10.11 Beta Services

From time to time, OAD may, in its sole discretion, invite Affiliate Partner to use, on a trial basis, potential new services or features that are in development and not yet available to all Affiliate Partners or Clients (“Beta Services”). Beta Services may be subject to additional terms and conditions, which OAD will provide to Affiliate Partner prior to Affiliate Partner’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of OAD and subject to the confidentiality provisions of this Agreement. OAD makes no representations or warranties that the Beta Services will function. OAD may discontinue the Beta Services at any time in its sole discretion. OAD will have no liability for any harm or damage arising out of or in connection with a Beta Service.

10.12 Service Providers

Affiliate Partners may work with service providers as necessary to facilitate Affiliate Partner’s performance under this Agreement. Affiliate Partner acknowledges and agrees that Affiliate Partner is responsible for all of its service providers’ acts or omissions in relation to Affiliate Partner’s performance of the Agreement, and any act or omission by Affiliate Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Affiliate Partner.

10.13 Industry Standards

Affiliate Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Affiliate Partner System”) must be properly configured to Internet industry standards so as to securely operate Affiliate Partner’s Website. If Affiliate Partner does not completely control some aspect of the Affiliate Partner System, Affiliate Partner will use all influence that Affiliate Partner has over the Affiliate Partner System to do so. Affiliate Partner must diligently correct any security deficiency and disconnect immediately any known or suspected intrusions or intruder.

In addition, if Affiliate Partner has access to Client Data, Affiliate Partner: (i) will only use or store such information for the purpose of providing the Affiliate Partner’s services to the Client to whom the Client Data relates, and will not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) will not communicate with Customers directly or indirectly, provided however that Affiliate Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) will only store such information for as long as reasonably necessary to provide the Affiliate Partner’s services to the Client to whom the Client Data relates; (iv) will use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) will comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Affiliate Partner’s provision of the Affiliate Partner’s services; and (vi) will notify OAD of any actual or suspected breach or compromise of Client Data (a “Data Breach”) immediately upon, but no later than twenty-four (24) hours of, becoming aware of such occurrence, by reporting an issue to [email protected]. Upon learning of the Data Breach, at its own cost, Affiliate Partner will: (A) promptly remedy the Data Breach to prevent any further loss of Client Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to OAD, the OAD Entities, Clients or Customers; and (D) regularly communicate the progress of its investigation to OAD and cooperate to provide OAD with any additional requested information in a timely manner.

10.14 Severability

If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.

10.15 Definitions

“Active Referred Client” means a Referred Client who has fully paid for an OAD subscription plan that (i) is not a Free Trial or (ii) pending refund, suspension, cancellation, or termination.

“Customer” means any individual that visits or transacts via the Client Site.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

“Client Agreement” means the agreement entered into between a Affiliate Partner and the Client governing the Client’s use of the Affiliate Partner’s services.

“Client Data” means information (including personal information) relating to a Client, including but not limited to business, financial and product information and any Customer Data.

“Client Site” means the Client’s commerce presence hosted by OAD, including their online site. For clarity, a Client may have more than one Client Site.

“OAD Creative” means any marketing or promotional materials relating to OAD or OAD brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the OAD Trademarks.

“OAD Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, OAD; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“OAD Trademarks” means the trademarks, logos, design mark, service marks and trade names of OAD, LLC and any OAD Entities, whether registered or unregistered, including but not limited to the word mark OAD and OAD’s logo.

“Affiliate Partner” or “You” means an individual or entity that: has agreed to the terms of this Agreement, participates in the OAD Affiliate Partner Program, has registered for a Affiliate Partner Account via the OAD Affiliate Partner Program Page, and promotes the Platform by registering, and being approved by OAD, for a unique referral link (an “Affiliate Link”) to refer Clients to OAD via such Affiliate Link.

“Affiliate Partner Account” means an OAD Affiliate Partner Program account.

“Affiliate Partner Dashboard” means the internal administrative page available at: https://www.oad.ai/affiliate/ that allows Affiliate Partners to manage their Affiliate Partner Account.

“Affiliate Partner Program” means the resources made available by OAD to Affiliate Partners.

“Platform” means the OAD hosted commerce platform available via https://app.oad.ai/login and any associated websites, products or services offered by OAD.

“Referred Client” means any unique Client introduced to OAD by a Affiliate Partner that registered for a paid OAD account using the Affiliate Link assigned to such Affiliate Partner by OAD.

“Sanctions” means any applicable economic sanctions or anti-terrorism laws or measures of (1) Canada, including the Special Economic Measures Act, the Freezing Assets of Corrupt Foreign Officials Act, the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), the United Nations Act, and Part II.1 of the Criminal Code and any regulations or orders issued under the foregoing; (2) the United States, including those imposed, administered, or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. State Department; (3) the United Nations Security Council; (4) the European Union; and (5) the United Kingdom, including those imposed, administered, or enforced by Her Majesty’s Treasury.

“Sanctioned Person” means any individual or entity listed or designated under Sanctions or located or resident in or organized under the laws of a country or territory that is the subject of comprehensive territorial Sanctions, or any entity directly or indirectly owned or controlled by one or more of the foregoing.

“Taxes” means all federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.

“Unsupported Region” means a region where OAD is unable to operate due to local legal and regulatory requirements, commercial Affiliate Partnerships, and/or other pertinent factors. OAD does not support transactions that involve these regions or persons located in or resident in or items originating from or destined for these regions.

“Websites” means any websites that are owned, operated or managed by a Affiliate Partner and that relate to Affiliate Partner’s activities pursuant to this Agreement.