Tactical Arbitrage Affiliate Agreement
Effective Date: February 23, 2023
This Affiliate Agreement (“Agreement”) has been adopted by Tactical Arbitrage, LLC (“TA”), a Delaware limited liability company, to inform you, the affiliate (“Affiliate”), of your rights and duties when participating in the TA affiliate program (“Affiliate Program”). Your execution of this Agreement or participation in the Affiliate Program constitutes your manifestation of assent to and intent to be bound by the terms and conditions of this Agreement.
YOU UNDERSTAND AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT. BY EXECUTING THIS AGREEMENT OR PARTICIPATING IN THE TA AFFILIATE PROGRAM, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS OF THIS AGREEMENT.
NOTICE OF ARBITRATION. THIS AFFILIATE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND TA WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
“Affiliate” is defined as any individual or business entity that has agreed to this Agreement and is authorized to participate in the Affiliate Program under the terms of this Agreement.
“Affiliate Program” means the Tactical Arbitrage Affiliate Program, participation within which is subject to the terms of this Agreement.
“Approved Lead” is defined as a qualified Lead approved by TA that has signed up for and has been provided with TA’s services.
“Advertising Materials” is defined as pay per click advertisements, display advertisements, landing pages, web pages, newsletters, email blasts, hypertext links, or other content used to advertise the availability of TA’s services.
“Lead” is defined as an individual or business entity that contact TA through efforts that are directly attributable to Affiliate.
“Referral Fee” is defined as the amount paid by TA to Affiliate for Approved Leads.
“User” is defined as a potential lead, including, but not limited to, users of third-party websites.
2. Warranties, representations, and eligibility. Affiliate warrants and agrees that he or she has the right and legal capacity to enter into this agreement, that Affiliate is a human individual age eighteen (18) or above, and that Affiliate is not prohibited from entering into this Agreement by any preexisting agreement with a third party. If Affiliate is participating in this Affiliate Program on behalf of a third party, Affiliate warrants that Affiliate is an actual and authorized agent of that third party and has the authority and capacity to bind that third party to the terms and conditions of this Agreement. If Affiliate is a current client of TA, Affiliate understands and agrees that, in order to participate in this Affiliate Program, Affiliate must maintain a good credit standing with TA and Affiliate’s account must not be in arrears. Affiliate agrees to provide TA with accurate, current, and complete contact information and to update that contact information if and when it changes.
3. Participation in Affiliate Program. TA will pay Affiliate a Referral Fee for all Approved Leads. The Referral Fee paid by TA will be posted to the TA Affiliate Program web page and may be amended, modified, replaced, or suspended from time to time. TA reserves the right to amend, modify, replace, or suspend the Referral Fee paid to Affiliate at any time and within its sole and absolute discretion. TA will approve Leads within its sole and absolute discretion and consistent with its established policies for accepting or rejecting clients. By participating in the Affiliate Program, Affiliate warrants and agrees that it will not circumvent, tamper with, modify, or compromise the technological tracking and protection measures implemented by TA in furtherance of the Affiliate Program, including, but not limited to, the unauthorized modification of the number of Approved Leads calculated by TA. Affiliate’s failure to strictly comply with the terms and conditions of this Agreement may result in the termination of this Agreement and the forfeiture of any Referral Fees owed to Affiliate pursuant to this Agreement.
4. Approval of Advertising Materials. Affiliate may advertise the services of TA in compliance with the terms of this Agreement, and TA reserves the right to oversee and approve all Advertising Materials. In creating and using Advertising Materials, Affiliate is expressly prohibited from advertising the services of TA in association with:
- Websites or other services that collect personal or personally identifiable information from a User without his or her express consent;
- Websites or other services that contain or display obscene, sexually explicit, illegal, pornographic, racist, offensive, or derogatory content;
- Websites or other services that promote bodily harm to or harassment of third parties;
- Websites or other services that violate the rights of third parties, including intellectual property or other personal or proprietary rights;
- Websites or other services that violate any applicable law, statute, treaty, regulation, or ordinance, whether local, state, provincial, national, or international; and
- Websites or other services that contain any other objectionable content to be defined within TA’s sole and absolute discretion.
Affiliate may use Advertising Materials to truthfully and accurately advertise the availability of TA’s services consistent with the terms of this Agreement. Affiliate agrees that its Advertising Materials and its participation in TA’s Affiliate Program will comply with all applicable advertising laws, regulations, ordinances, statutes, or treaties, whether local, state, provincial, national, or international, including, but not limited to, the CAN SPAM Act, Part 255 of the FTC false advertising regulations, and state false advertising law. TA reserves the right to terminate this Agreement and cancel Affiliate’s participation in the Affiliate Program for Affiliate’s failure to comply with this paragraph.
5. Payments. TA will calculate the number of Approved Leads generated by Affiliate and pay Affiliate for all Approved Leads within forty five (45) days of TA’s receipt of payment. TA will calculate the number of Approved Leads generated by Affiliate and provide Affiliate with a report disclosing the Referral Fee amount to be paid to Affiliate. TA will then remit payment to Affiliate at the address provided by Affiliate and stored within the records of TA. In the event the Referral Fee to be paid to Affiliate in any month is less than $100, TA will hold the Referral Fee to be paid to Affiliate until the next month in which the Referral Fee to be paid to Affiliate equals or exceeds $100. Affiliate understands and agrees that he or she has an ongoing duty to update its contact information if and when it changes and, in the event any Referral Fee is returned to TA due to an incorrect address, TA will not resend or reissue the returned Referral Fee to Affiliate.
6. Trademarks and Copyrighted Works. Affiliate acknowledges and agrees that any and all trademarks, trade names, design marks, or logos displayed on the TA website or marketing materials, including but not limited to the TACTICAL ARBITRAGE mark, are common law or registered trademarks owned by or licensed to TA. Affiliate is expressly prohibited from using the trademarks of TA to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Affiliate’s goods or services. Affiliate is further prohibited from using the trademarks of TA in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. Affiliate may make a nominative fair use of the trademarks of TA consistent with trademark law while participating in the Affiliate Program. Affiliate is also prohibited from using the copyrighted content of TA, including, but not limited to, TA’s logos, copy, and website content.
7. Term and Termination. Each party may terminate this Agreement at any time and without cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within five (5) calendar days of written notice from the non-breaching party that specifies the breach. TA may terminated this Agreement if, at any time, Affiliate (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy. Termination of this Agreement hereunder will not limit either party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration hereof and will continue in full force and effect.
8. Competitive Services. Affiliate agrees that during the term of this Agreement it will not promote or sell (either for its own account or as agent or representative for another) any service competitive to the services of TA and will not become involved as a partner, shareholder, officer, director, employee, principal, consultant or in any other way, either directly or indirectly, in any corporation or other entity which promotes, sells, or manufactures any competitive product. Affiliate agrees that the subject matter, geographic area and duration of this paragraph are reasonable and necessary for the protection of TA.
9. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE AFFILIATE PROGRAM, ITS USE, AND AFFILIATE’S RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. TA WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABLITY FOR ITS FAILURE TO MEET SAID DATES. NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS TA HAS PAID TO AFFILIATE.
10. Indemnification. Affiliate assumes full and complete responsibility and liability for its participation in the Affiliate Program and will indemnify and hold TA, its directors, officers, employees, and agents harmless from and against all demands, claims, or liability arising out of or relating to Affiliate’s Advertising Materials or Affiliate’s participation in the Affiliate Program. Affiliate warrants that its Advertising Materials will be truthful, accurate, and will comply with all local, state, federal, and international laws concerning the advertisement and sale of goods or services. Affiliate understands and agrees that it will indemnify, defend, and hold harmless TA, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) claim by any third party that any Advertising Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) claim by any third party that any Advertising Materials violate the rights of a third party, are defamatory or obscene, or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by Affiliate of any representation or warranty set forth in this Agreement. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, and agents. If any action is or will be brought against TA with respect to any allegation for which indemnity may be sought, Affiliate will provide reasonable cooperation to TA, at Affiliate’s expense, to defend against or settle any such claim. Affiliate’s obligation to defend TA under the terms of this Agreement will not provide Affiliate with the ability to control TA’s defense, and TA reserves the right to control its defense and select its counsel.
11. Assignment. Affiliate may not assign, in whole or in part, any rights, obligations, or duties created by or under this Agreement. TA may assign its rights, obligations, or duties under this Agreement at any time upon written notice to Affiliate, including in a sale or transfer of all or substantially all of TA’s assets, in a sale or transfer of TA’s accounts, or in a merger of TA with another company. Should TA assign its rights, obligations, or duties under this Agreement, TA’s rights, obligations, or duties under this Agreement will be binding on, and shall inure to the benefit of, its successor or assign.
12. Survival. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either party under this Agreement will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this Agreement will be construed and enforced as if said provision had never comprised a part of this Agreement; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision.
13. Choice of Laws. You agree that any dispute, claim, or controversy arising out of or in relation to his Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between you and TA, the Parties agree that the arbitrator will decide that issue. Notwithstanding the foregoing, you and TA each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under Delaware law and will be heard exclusively in the state and federal courts located in or with jurisdiction over Dover, Delaware. You and TA agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Association’s most recent Commercial Arbitration Rules then in effect except whereas modified herein. The arbitration will be conducted in Dover, Delaware and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction and shall be enforceable consistent with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly referred to as the 1958 New York Convention. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. This arbitration will be held in Dover, Delaware and both parties hereby submit to exclusive personal jurisdiction in Delaware. The arbitrator will apply the laws of the State of Delaware and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND TA EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
14. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
15. Relationship of the Parties. Nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the parties. Neither party has any authority of any kind to bind the other party. The relationship of the parties is, and at all times shall continue to be, that of independent contractors.
16. Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Affiliate or TA may terminate the Agreement, excluding payment obligations, without penalty.
17. Counterparts. This Agreement may be executed in counterparts, with the same effect as if the parties had signed the same document. Signed counterparts of this Agreement transmitted via email, fax, or electronically are equivalent to a signed original of this Agreement.
18. Integration. This Agreement, including any exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this Agreement, exhibit, addendum or rider shall be effective unless in writing and signed by a duly authorized representative of each party.