THESE TERMS AND CONDITIONS (the “Agreement”) set forth the terms of participation in the Affiliation Program of Simbla Ltd. (“Simbla” or the “Company”). A participant in the Simbla Affiliation Program is hereinafter referred to as “Affiliate” or “you”.
1. General. THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO AFFILIATE’S PARTICIPATION IN THE SIMBLA AFFILIATION PROGRAM (THE “PROGRAM” OR “AFFILIATION PROGRAM”). CAREFULLY READ THESE TERMS AND CONDITIONS, WHICH REPRESENT A LEGALLY BINDING AGREEMENT BETWEEN SIMBLA AND YOU. YOU MUST AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT IN ORDER TO BECOME A SIMBLA AFFILIATE. BY CLICKING “I AGREE” BOX ON THE APPLICATION PAGE, YOU AGREE TO SIGN UP TO BE AN AFFILIATE IN THE AFFILIATION PROGRAM AND CERTIFY THAT (A) YOU HAVE READ THIS AGREEMENT AND UNDERSTAND ALL OF ITS CONTENTS; AND (B) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES AND PROCEDURES INCORPORATED HEREIN BY REFERENCE AND ANY POSSIBLE FUTURE AMENDMENT THEREOF OR ADDITIONS THERE TO; AND (C) YOU HAVE NO CONLIFCT OR OTHER RESTRICION IN ENTERING OR PERFORMING THIS AGREEMENT OR ANY PART THEREOF, INCLUDING RECEIPT OF ALL THE APPLICABLE APPROVLAS REQUIRED UNDER THE APPLICABLE LAW FOR THE PERFORMANCE OF THIS AGREEMENT BY YOU. VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY OTHER DOCUMENT INCORPORATED INTO THIS AGREEMENT BY REFERNCE WILL RESULT IN THE IMMEDIATE TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM, WITHOUT ANY NEED TO INFORM YOU IN WRITING, AND FOR FORFEITURE OF ANY OUTSTANDING AFFILIATE FEE PAYMENTS EARNED DURING THE VIOLATION. YOU AGREE TO PARTICIPATE IN THE PROGRAM AT YOUR OWN RISK AND EXPENSE.
2. Definitions. For purposes of this Agreement, the following terms shall mean:
2.1. “Ad(s)” means anchor text, banners, button links, text links, or other graphic devices that Simbla makes available to Affiliate or Affiliate uses on its own account, and that is used for linking from the Affiliate Site to Simbla Site.
2.2. “Affiliate Application” means the application submitted by an Affiliate to participate in the Program, as contained in the Simbla Site.
2.3. “Affiliate Fee” or “Fee” or “Referral Fee” means the approved and undisputed amount due and payable one time only to an Affiliate in accordance with the Referral Fee Plan.
2.4. “Affiliate Site” means websites owned, controlled or used by Affiliate, on which the Affiliate will place its links to Simbla Site.
2.5. “Term” the term of the activity of an Affiliate as a participant in the Program commencing starting with the approval of Affiliate’s participation and ending according to the provisions of Section 10 below.
2.6. “Transaction” means a purchase by a Paying Referred User (referred to Simbla through Affiliate’s Tracking ID) of a Simbla Paid Plan.
2.7. “Transactions Per Month” means the aggregate number of Transactions during each calendar month.
2.8. “Content Restrictions” has the meaning ascribed to it in Section 4.3 herein.
2.9. “Conversion Requirements” means such requirements set forth by Simbla at its sole discretion and specified below, for determining a Referred User’s successful conversion into a Paying Referred User.
Referred User shall be considered to make Conversion Requirement, under the following conditions:
(a) It has purchased one of Simbla Paid Plans (Starter and above).
(b) It has connected its site to a lawfully registered domain.
(c) The Paying Referred User did not request a refund during Simbla refund period (14 days from a Transaction).
(d) Paying Referred User is not a Fraud Account. For the purpose of this section, Fraud Account shall mean any means of Affiliate to create fraud in order to receive Referral Fees, including, but not limited to arbitrages, the payment by Affiliate to any third party for the purpose of registering to Simbla, or the creation by Affiliate, subsidiaries, officers, employees, agents, and third parties of Simbla’s accounts, solely for the means of receiving Fees.
2.10. “Panel” means a dedicated online interface made available by Simbla to participants of its Affiliation Program, through which the Affiliate may manage and monitor its participation in and performance under the Affiliation Program.
2.11. “Fraud Traffic” means any deposits or traffic generated at the Affiliate Site(s) and/or via the Affiliate’s activity through illegal means or in bad faith or with the intent to defraud the Company, regardless of whether or not it actually causes harm to the Company. Fraud Traffic includes but is not limited to spam, false advertising, deposits generated by stolen credit cards, collusion, manipulation of the service, system, bonuses or promotions, offers to share the Affiliate Fees, directly or indirectly, with Users, and any other unauthorized use of any third party accounts, copyrights or trademarks.
2.12. “Intellectual Property Rights” means copyrights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.
2.13. “License” has the meaning ascribed to it in Section 4.3 herein.
2.14. “Minimum Transaction Requirement” means the number of Affiliate Transactions Per Month that is defined by Simbla as the minimal number of Transactions each Affiliate is required to achieve in order to continue participation in the Affiliation Program.
2.15. “Non-Active Affiliate” has the meaning ascribed to it in Section 8.3 herein.
2.16. “Opt Out Request” has the meaning ascribed to it in Section 6.3.4 herein.
2.17. “Paying Referred User(s)” means a Referred User that has fully met the Conversion Requirements specified in the Panel, within sixty (60) days of such user first becoming a Referred User as set forth hereunder (each, a “Conversion”).
2.18. “Referral Fees Plan” means an Affiliate compensation plan where Affiliate shall be paid for Paying Referred Users referred by it pursuant to this Agreement, in accordance with the Fees specified in Simbla Site, and may change from time to time in Simbla’s sole discretion.
2.19. “Referred User” means a user that opened an account in Simbla Site for the first time, through the Affiliate’s Tracking ID from the Affiliate Site, email, or other communications.
2.20. “Sale Terms” means such special discounts or other special benefits which Simbla may determine to apply to certain Paid Plans offers.
2.21. “Sponsored Link” means a link offered, created, or displayed for a fee by any internet search engine, portal, sponsored advertising service or other search or other referral service which uses search terms or key words to identify, draw attention to, or direct internet traffic to an internet site.
2.22. “Tracking ID(s)” means specific unique ID(s) that Simbla will provide the Affiliate to track the traffic and users which arrive via the Affiliate activity (including but not limited, from the Affiliate Site). This Tracking ID will be special tag added to the URL to be used by the Affiliate in creating links to Simbla Site. Simbla tracks its users by cookies, which shall expire within sixty (60) days. If any users will not have cookies for any reason whatsoever (including if the applicable cookies have expired), such users will not be considered as Referred User of the Affiliate.
2.23. “User” means both Referred Users and Paying Referred Users.
2.24. “Simbla Marks” means, without limitations, Simbla trademarks, service marks, trade names, corporate name, logos and any other distinctive brand features used in or related to Simbla’s business.
2.25. “Paid Plan” or “Simbla Paid Plan” means any of the charged packages offered by Simbla in the Simbla Site, as may be updated and/or modified from time to time by Simbla. Charged package which: (i) was either cancelled within fourteen (14) calendar days from the day it was purchased; or (ii) was refunded in accordance with Simbla refund policies or the applicable law, as may be from time to time; or (iii) was not duly and fully paid by Paying Referred User(s), will not be considered as a Paid Plan.
2.26. “Simbla Site” means www.simbla.com and/or any other website as may be added by the Company, in its sole and absolute discretion, from time to time.
3. Tracking ID and Ads.
3.1. To permit accurate tracking, reporting, and Referral Fee accrual, Simbla will provide Affiliate with a specific Tracking ID. Affiliate must ensure that each of the links between its Affiliate Site and Simbla Site properly utilizes the Tracking ID provided to Affiliate.
3.2. Affiliate is not authorized to alter, modify or change any of the Tracking ID. Affiliate will only earn payments in accordance with the Referral Fees Plan. Simbla will not be held liable to the Affiliate with respect to any failure by Affiliate to use such Tracking ID. Simbla will not be responsible for errors which may occur in the tracking of transactions if the Affiliate has made or caused any such modification to the Tracking ID. For the avoidance of doubt, Affiliate will use the Tracking ID only for the purposes of the Program. Any other use of the Tracking ID will be considered void and subject to Simbla sole discretion - shall be deemed as breaching this Agreement and will not entitle Affiliate to any Fee, which is based on such unauthorized use.
3.3. Simbla hereby grants to Affiliate a non-exclusive, non-transferable, limited license to use the Simbla Marks contained in the Ads provided to Affiliate by Simbla for the sole purpose of this Agreement (the “License”). Simbla will provide Affiliate with the necessary information to allow Affiliate to make appropriate Ads from the Affiliate Site to Simbla Site. Affiliate may not use any of the Simbla Marks in any manner other than as contained in the Ads. Furthermore, Affiliate may not modify any of the Ads in any way, whatsoever. The License shall expire upon the expiration or termination of the Term.
3.4. Affiliate shall display the Ads, subject to other requirements as Simbla may from time to time impose and provide to Affiliate, including Simbla trademark guidelines. Affiliate may not use the Ads and the Simbla Marks contained therewith in a manner that, in Simbla’s sole discretion, is disparaging or otherwise portrays Simbla in a negative light. Affiliate shall have no other right, title or interest in or to the Ads and Simbla Marks contained therewith other than as specified in the limited License granted herein.
3.5. AFFILIATE WILL BE SOLELY RESPONSIBLE FOR THE CONTENT AND MANNER OF ITS MARKETING ACTIVITIES. ALL MARKETING ACTIVITIES MUST BE PROFESSIONAL, PROPER AND LAWFUL UNDER APPLICABLE RULES OR LAWS.
3.6. Simbla may at any time, without prior notice, require the Affiliate to remove or modify the Ads, or dynamically replace the Simbla creative or text with creative or text suitable to Simbla in Simbla’s sole discretion.
3.7. Simbla shall own all right, title and interest, including all Intellectual Property Rights, in and to the Simbla Site, the Program and Simbla Marks.
4. Applying for the Program.
4.1. In order to become an Affiliate, Affiliate shall submit a complete Affiliate Application via Simbla Site. Affiliate must provide full, true and accurate information in the Affiliate Application. Simbla will evaluate Affiliate’s Application in good faith and may notify it of its acceptance or rejection within thirty (30) business days. Unless Affiliate received a clear written notice from Simbla confirming his participation in the Program, Affiliate shall not be deemed to be part of the Program.
4.2. Simbla may reject Affiliate Application if Simbla determines, in Simbla’s sole discretion, that the Affiliate Site or activities are unsuitable for the Program for any reason. If Simbla accepts Affiliate Application and thereafter the Affiliate Site or activity is determined (in Simbla’s sole discretion) to be unsuitable for the Program, Simbla may terminate the Affiliate’s participation in the Program at any time.
4.3. Unsuitable Affiliate Sites or activities may include, but not be limited to, sites containing or activities related to illegal, offensive, abusing, infringing content, or which incorporate images or content that is, in any way, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, including without limitation, sites or activities that: promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights of any third party (collectively, “Content Restrictions”).
4.4. A rejection of an Affiliate Application by Simbla shall not derogate from Affiliate’s right to reapply to the Program at any other time thereafter, provided that the Affiliate complies with the provisions of this Agreement.
5. Minimal Achievement Requirement.
5.1. The participation in the Affiliation Program is contingent and depending upon each Affiliate achieving the Minimum Transaction Requirement in each calendar month during such Affiliate’s participation in the Program.
5.2. The Minimal Transaction Requirement is the achievement of at least two (2) Transactions in each calendar month. Simbla shall have the right to change the Minimal Transaction Requirement at any time at its sole discretion. In event of such change, Simbla shall provide a notice to all active Affiliates participating in the program.
5.3. To the extent an Affiliate does not achieve the Minimal Transaction Requirement, Simbla shall have the right, at its sole discretion to discontinue the participation of such Affiliate in the Affiliation Program. In event of such discontinuation, Simbla shall provide a notice to the Affiliate informing it that its participation in the Program was terminated (a “Terminated Affiliate”). In such event, the Terminated Affiliate shall have no claims or demands towards Simbla as result of such termination.
6. E-mails and Publications.
6.1. If Affiliate sends any messages or communications by electronic means, including but not limited to email and instant messages (“Emails”) in connection, directly or indirectly, with this Agreement and/or the Program, then Affiliate agrees, acknowledges, represents and warrants that all such Emails shall be in full-compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and all other laws in the applicable jurisdiction of the Affiliate and Affiliate Site and including, but not limited to, all European laws and Directives and the Federal Trade Commission regulations.
6.2. Affiliate agrees to not utilize SPAM in promoting Simbla. Simbla maintains a ZERO tolerance policy towards the sending of SPAM, including, but not limited to, unsolicited commercial E-mails. This action may result in the immediate suspension or termination of Affiliate account with a cancellation of and possible forfeiture of any pending Fees. Affiliate will also be in violation of this Agreement and subject to legal action and be held liable for any financial loss incurred by Simbla.
6.3. SPAM is defined as including, but not limited to, the following:
6.3.1. Send an Email to any person who has either not explicitly requested to receive such messages (or has explicitly requested to receive no further Emails) specifically from Affiliate, including without limitation for the purposes of sending unsolicited bulk email, executing any “mass mailings” or “email blasts,” or for the purpose of spamming any public forum, including without limitation, any blog, message board, classified listings, auction sites, altnet, newsnet, newsgroups, or similar service.
6.3.2. Employ any false or deceptive information regarding Affiliate’s identity, or regarding the intent, subject, or origin of the message or fail to include accurate information regarding Affiliate identity, and the intent, subject, and origin of the Email.
6.3.3. Exploit documented or undocumented security holes on any client or server machine.
6.3.4. Fail to (i) include clear, valid, and conspicuously displayed “From” and “Subject” lines in the Email, (ii) include a functioning return address (or hyperlink) in the Email that enables the recipient to submit a request to receive no further messages from Affiliate (“Opt Out Request”) for no less than thirty (30) days from the date the Email was sent; or (iii) honor any Opt-out Request within ten (10) days of receipt of such Opt-out request by Affiliate.
6.3.5. Obtain email addresses via automated means or send any Email to any address which was obtained via automated means, including via the automated combination of names, letters, or numbers, dictionary attacks, or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
6.3.6. Employ any fraudulent, deceptive, false or misleading information in connection with the Emails.
6.3.7. Send any commercial marketing Email or promotion to, or collect any personally identifiable information from, any person who is under eighteen (18) years of age.
6.4. Affiliate may use Tracking ID within Emails that Affiliate sends to registered users of the Affiliate Site.
7. Referral Fees.
7.1. For each new Simbla Paid Plan purchased by a Paying Referred User through Affiliate’s Tracking ID and subject to the compliance of the Affiliate with the provisions of this Agreement, Affiliate shall be entitled to receive Affiliate Fees in according with the Referral Fees Plan stated in the Simbla Site for such Affiliate.
7.2. Notwithstanding the foregoing Section 7.1, in the event that any Referred User purchases a new Paid Plan through Affiliate’s Tracking ID, and such purchase is subject to Sale Terms, the Affiliate Fees payable to Affiliate (if any) shall be subject to and reduced in accordance with the discount or other special benefits applicable to the Paid Plan under the Sale Terms, unless otherwise determined by Simbla, in its sole discretion.
7.3. During the Term of this Agreement, Simbla shall keep track of any Referred User by attaching such Referred User a Tracking ID which shall be kept for a period of sixty (60) days, provided that such period is within the Term. If within such period the Referred User has not registered as a Paying Referred User, then the Affiliate will not be entitled to any Affiliate Fees with respect to such user, even if at a later time such Referred User will perform such actions as determined under the applicable Conversion Requirements.
7.4. Simbla is entitled to grant additional rewards to any of its affiliates at Simbla’s sole discretion.
7.5. It is hereby clarified that Referral Fees are payable to an Affiliate only for a first purchase of Simbla Paid Plan made by a respective Paying Referred User. The Referral Fee shall not apply on any renewals, trial versions (if applicable), second purchase or otherwise.
8. Affiliate Fee Payment and Reporting.
8.1. Simbla will generate periodic reports summarizing the sales activity of the Paying Referred Users as relevant and necessary for purposes of calculating each Affiliate’s Fee, which will be available to Affiliate in real time via the Panel. The form, content and frequency of the reports shall be determined by Simbla at its sole discretion as may be updated from time to time.
8.2. Affiliate Fees will be payable within forty five (45) days following the end of each calendar month (“Payment Day”).
8.3. In no event will Simbla pay to an Affiliate any Fees unless and until at least two (2) Conversions have occurred under Affiliate’s account, and therefore in the event that the Affiliate has failed to reach at least two (2) Conversions by the Payment Day, any reached Conversions (and the Fees related thereto) shall be carried over and added to the next month’s Affiliate Fees. In the event that the Affiliate fails to reach at least two (2) Conversions within a two (2) consecutive calendar months, then such Affiliate will be regarded as an Non-Active Affiliate, the Fees due to any Conversions and/or Paying Referred Users reached until then will be voided and cancelled, and Simbla may terminate this Agreement with no liability, including any payment liabilities, whatsoever to Affiliate.
8.4. Simbla will pay Affiliate Fees on Tracking ID that are automatically tracked by Simbla affiliation system and reported via the Panel. Simbla will not pay Affiliate Fees unless the Tracking ID is tracked by Simbla affiliation system and reported via the Panel.
8.5. All payments of the Affiliate Fees will be due and payable in United States Dollars only, except as otherwise determined by Simbla in its sole discretion. Payment will be made against a valid invoice issued by Affiliate, through paypal or any other method chosen by Simbla, in its sole discretion. Affiliate is responsible to provide Simbla with full and accurate details as required for it to remit the Affiliate Fees, and shall be solely liable for any delay in payment resulting from its failure to duly and timely provide Simbla with such details.
8.6. In the event of any activity deemed suspicious by Simbla at its sole determination, Simbla may delay payment of the Affiliate Fees to Affiliate for up to one hundred and eighty (180) days to verify the relevant transactions and in the event that Simbla determines the activity to constitute Fraud Traffic, it shall recalculate or withhold the Affiliate Fees accordingly and in its sole discretion. It is hereby clarified that in any event that Simbla shall determine that Affiliate is involved, directly or indirectly, in any fraudulent, deceptive, manipulative or otherwise illegal activity connected to Simbla, including without limitation to the Simbla Site, Tracking ID and/or Users, Simbla shall have the right, in addition to any other right or remedy available to it under this Agreement or applicable law, to render the Tracking ID assigned to such Affiliate inoperative, and immediately block Affiliate access to the Program, with no compensation to Affiliate. Affiliate hereby irrevocably waives any claim or demand against Simbla, its directors, officers, shareholders or employees in respect of such action taken by Simbla.
8.7. The Affiliate is responsible for the payment of all taxes applicable to the conduct of Affiliate’s business. The payment to the Affiliate shall be subject to any withholding tax obligations applicable by law. It is agreed that the Referral Fees are inclusive of any and all taxes applicable by any law including VAT.
9. Simbla Transactions Processing Services Policies and Pricing.
9.1. Simbla will process transactions placed by Users who used the Tracking ID from the Affiliate Site to Simbla Site.
9.2. Simbla reserves the right to reject transactions that do not comply with any certain reasonable requirements that Simbla may periodically establish.
9.3. Simbla will be responsible for all aspects of transactions processing and fulfillment.
9.4. Simbla will track purchases generated by Users referred through the Affiliate Site. To permit accurate tracking, reporting, and Affiliate Fees accrual, the Affiliate shall ensure that Tracking ID are properly formatted. Simbla will not be responsible for improperly formatted Tracking ID.
9.5. Simbla may change the pricing, policies and operating procedures at any time consistent with applicable laws. For example, Simbla will determine the prices to be charged for services in accordance with Simbla’s own pricing policies. In the event that such changes affect items that Affiliate already has presented on the Affiliate Site, the Ads or any other information provided by Affiliate to third parties in respect with this Agreement and its participation in the Program, Affiliate must track such changes and reflect them in the Affiliate Site or in any other relevant marketing means.
10. Term and Termination.
10.1. The term of Affiliate’s participation in the Program shall commence upon Simbla’s acceptance of the Affiliate Application and shall end upon provision of a termination notice by either party in accordance with the provisions of this Section 10 (the “Term”).
10.2. Either party may terminate Term at any time, with or without cause, by giving the other party a ten (10) days prior written notice of termination.
10.3. Subject to Section 10.4 herein, termination of the Term will result in the deactivation or deletion of the Affiliate’s account or its access to the Affiliate Panel in the Simbla Site, and the forfeiture and relinquishment of all potential or to-be-paid Affiliate Fees in the Affiliate account.
10.4. Subject to the provisions of Section 10.3 above, and except as stated otherwise, upon termination of the Term, Affiliate will be entitled to receive Affiliate Fees for Paying Referred User accrued during the Term of this Agreement.
10.5. In the event of a material breach of this Agreement by Affiliate, Simbla may, at its sole and absolute discretion, terminate the Term immediately, without prior notification, and the Affiliate will not be entitled to receive any unpaid Affiliate Fees, which accrued prior to such termination.
10.6. Upon the termination of the Term for any reason, Affiliate shall promptly remove all Tracking ID, Ads and other Program related content from Affiliate Site or any other communication means used by the Affiliate. Affiliate will immediately cease use of, and remove from Affiliate Site, all links to Simbla Site, and all of Simbla Marks, and all other materials provided by or on behalf of Simbla to the Affiliate pursuant here to or in connection with the Program.
10.7. Sections 2, 4.5 and Sections 10 through 19 of this Agreement and any other provisions that by their express terms do, or by their nature should survive termination of Term, shall continue to be in force despite the termination of the Term.
11. Compliance with Law and Regulations; No conflict.
11.1. Affiliate shall comply with any and all regulations, statutes and applicable laws of the United States or any other state, country or jurisdiction in which he acts related to Email, and/or electronic communications. It is Affiliate’s responsibility to be aware of all such regulations, statutes and laws.
11.2. Affiliate may only send Emails containing a Tracking ID and/or a message regarding Simbla or Simbla’s Program. Failure by Affiliate to abide by this Section 11, CAN-SPAM Act or COPPA, in any manner, will be deemed a material breach of this Agreement by Affiliate and foreclose any and all rights Affiliate may have to any Affiliate Fee.
12. Prohibition on Sponsored Links.
12.1. Affiliate shall not use, procure, bid on, or otherwise arrange for a Sponsored Link which uses or includes any of the Simbla Marks.
12.2. Affiliate shall not register, procure, or use any internet domain name that includes any of the Simbla Marks or any variations thereof.
13.1. Simbla may disclose to Affiliate certain information as a result of Affiliate’s participation in the Program, which information we consider to be confidential (herein referred to as “Confidential Information”). For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to (i) any modifications to the terms and provisions of the Program made specifically for the Affiliate or Affiliate Site and not generally available to other affiliates of the Program; (ii) price guidelines, future service releases, trade secrets, know-how, inventions, processes, programs, schematics, data, pricing and discount schedules, customer lists, financial information and sales and marketing plans relating to Simbla or Simbla’s services. Confidential Information shall also include any information that Simbla designate as confidential during the term of this Agreement. Confidential Information shall not include information which is: (a) previously known to the other party without obligation of confidence or without breach of this Agreement; (b) which is publicly disclosed (other than by the Affiliate) either prior or subsequent to the Affiliate’s receipt of such information; (c) required to be disclosed by the other party by law or by the order of a court or similar judicial or administrative body.
13.2. Affiliate shall at all times, both during the Term and at all times thereafter, keep and hold such Confidential Information in the strictest confidence, and shall not use such Confidential Information for any purpose other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without Simbla’s prior written consent.
14. General Provisions, Responsibilities of the Affiliate, Representations and Warranties.
14.1. Affiliate hereby warrants and represents that he/she is over the age of eighteen (18) and in all respects Affiliate is qualified and competent to enter into this agreement.
14.2. Affiliate will provide accurate and complete details regarding its identity and personal details such as: paypal account, address or other required information.
14.3. Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate Site and Affiliate’s activities and for all materials related thereto. Affiliate will indemnify and hold Simbla harmless from all claims, damages and expenses incurred by Simbla due to any third party claims relating to the development, operation, maintenance, manner and contents of the Affiliate Site or activities.
14.4. In the event that any entity (including any employee, agent, subcontractor or representative of Affiliate (each, an “Affiliate Agent”) participates in the Program or otherwise acts on behalf of Affiliate with respect thereto, Affiliate shall ensure that such Affiliate Agent fully complies with the terms of this Agreement, and Affiliate shall be fully liable for any act or omission of such Affiliate Agent.
14.5. Affiliate hereby represents and warrants to Simbla that materials posted on its Affiliate Site do not violate or infringe upon the rights of any third party, and that materials posted on its Affiliate Site are not libelous or otherwise illegal nor may cause Affiliate to violate any of its representations and obligations under this Agreement. Simbla disclaim all liability for all such matters.
14.6. As a condition to Affiliate’s participation in the Program, he/it is hereby represents and warrants that during the Term of this Agreement, Affiliate will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority as applicable to Affiliate, whether those laws are now in effect or later come into effect during the Term of this Agreement.
14.7. This Agreement has been duly and validly executed and delivered by Affiliate (by acceptance of its terms) and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with the terms contained herein.
14.8. The execution, delivery, and the performance by Affiliate of duties pursuant to this Agreement will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: any provision of law, rule, or regulation to the extent applicable; any order, judgment, or decree applicable or binding upon Affiliate’s assets or properties; any provision of Affiliate’s by-laws or certificate of incorporation, or any agreement or other instrument applicable to Affiliate or binding upon Affiliates assets or properties.
14.9. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by Affiliate in connection with the execution, delivery, and performance of this Agreement or the taking by Affiliate of any other action hereunder.
14.10. To the best of Affiliate’s knowledge, there is no pending threatened claim, action, or proceeding against it, or any affiliate thereof, with respect to the execution, delivery, or consummation of this Agreement, or with respect to any intellectual property infringement, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.
14.11. Affiliate understands that Simbla may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with the Affiliate Site.
14.12. Simbla has the right, in Simbla’s sole discretion, to monitor Affiliate Site at any time and from time to time to determine if the Affiliate is in compliance with the terms of this Agreement. Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by Simbla.
15. Relationship of Parties.
15.1. Simbla and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
15.2. Affiliate will have no authority to make or accept any offers or representations on Simbla’s behalf. Affiliate will not make any statement, whether on its/his Affiliate Site or otherwise, that reasonably would contradict anything in this Agreement.
16.1. SIMBLA MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AGREEMENET, THE PROGRAM AND THE INFORMATION TO BE DELIVERED PURSUANT HERETO. INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, TRADE USAGE OR FITNESS FOR A PARTICULAR PURPOSE.
16.2. SIMBLA MAKES NO REPRESENTATION AS TO ANY OF THE INFORMATION FOUND ON SIMBLA’S SITE. THE MATERIALS ON SIMBLA’S SITE AND FOR THE AFFILIATED SITES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. SIMBLA DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED ON THE SIMBLA’S SITES. ANY OF THE INFORMATION OFFERED ON SIMBLA’S SITE MAY CHANGE AT ANY TIME WITHOUT NOTICE.
16.3. Should the materials or services provided prove defective and/or cause any damage to equipment or any loss or inconvenience to the Affiliate or anyone claiming through the Affiliate, the Affiliate assumes the entire cost and responsibility for them.
16.4. Affiliate will indemnify and hold harmless Simbla, its subsidiaries, officers, employees, agents, and third parties from and against any claims, liabilities, losses, costs, damages or expenses (including attorney’s fees) arising, directly or indirectly, in connection with Affiliate’s operations or website or out of any disputes between Affiliate and any other party relating to this Agreement or the participation in the Program, the Site(S) or to services provided by Simbla.
17. Limitations of Liability.
17.1. UNDER NO CIRCUMSTANCES SHALL SIMBLA, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE HELD LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES AND/OR LOSSES, TO THE AFFILIATE, USER, AND/OR OTHER THIRD PARTY THAT MAY ARISE DUE TO “DOWNTIME” AND/OR AVAILABILITY OF SIMBLA SITE OR THE PROGRAM. MOREOVER, SIMBLA ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS SHALL NOT BE HELD LIABLE FOR ANY LOSSES OF ANY KIND THAT MAY RESULT DUE TO DOWNTIME IN THE PROGRAM AND/OR ANY OTHER THIRD PARTY’S DOWN TIME.
17.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SIMBLA, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS WILL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF SIMBLA, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18.1. Simbla may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion by providing Affiliate fourteen (14) days prior notice of such modification. Notice of any change by e-mail, to Affiliate’s address as provided to Simbla, or the posting on Simbla Site or Panel of a change notice or a new agreement, is considered sufficient notice to Affiliate of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available Affiliate Fees, payment procedures and schedules, and Affiliation Program rules.
18.2. Notwithstanding the foregoing Section 18.1, the Referral Fees Plan may be altered, modified or changed by Simbla, from time to time, in its sole and absolute discretion, provided that Simbla will notify Affiliate of such change of the Referral Fees Plan. Affiliate Fees earned prior to such change will be paid according to the conditions in effect prior to such changes. Referral Fees earned after such change is in effect will be paid according to the new conditions of the amended Referral Fees Plan’s effective date at which the payment has been made.
18.3. If any modification is unacceptable to Affiliate, its sole recourse shall be to terminate this Agreement. Affiliate’s continued participation in the Program following posting of a change notice or a new agreement on Simbla Site will constitute binding acceptance of such change.
19.1. The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
19.2. The failure of each of the parties to exercise or enforce any right or provision of the conditions and terms of this Agreement shall not constitute a waiver of such right or provision. Simbla failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Simbla’s right to subsequently enforce such provision or any other provision of this Agreement.
19.3. This Agreement constitutes the entire understanding between the parties regarding to specific subject matter covered herein. This Agreement supersedes any and all prior written or verbal contracts or understandings between the parties hereto and neither party shall be bound by any statements or representations made by either party not embodied in this Agreement.
19.4. If any dispute arises in connection with the performance of this Agreement and cannot be amicably resolved, such dispute shall be solely and finally governed by and be construed according to the laws of Israel, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent courts of Tel Aviv, Israel.
19.5. The rights and obligations of each party hereunder shall inure to the benefit of the respective successors and assigns of the parties hereto, provided that, except as expressly provided herein, the Agreement and any rights or obligations hereunder shall not be assigned or delegated by Affiliate without the prior written consent of Simbla (which shall not be unreasonably withheld.
Simbla encourages Affiliate to consult with legal and/or financial and/or tax and/or accounting advisors prior to entering the Program. Affiliate acknowledges and agrees that nothing herein and no statement by Simbla or any of its employee or other person associated with Simbla has prevented Affiliate in any way from seeking such advice before entering into this Agreement. Affiliate has independently evaluated the desirability of participating in the Program and he/it is not relying on any representations or statements other than as set forth in this Agreement.
AFFILIATE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS IT, HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS, WHICH IT IMPOSES UPON AFFILIATE WITHOUT RESERVATION. AFFILIATE HAS ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO AFFILIATE TO INDUCE IT TO ACCEPT THIS AGREEMENT. AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.