Legal

THIS AGREEMENT GOVERNS THE PROVISION OF SERVICES TO YOU, THE “CLIENT”.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY, IN WHICH CASE THE TERM “CLIENT" SHALL REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.

This Agreement was last updated on July 11, 2023. It is effective between Client and Kayak Creative Services Inc., as of the date you accept this Agreement ("Effective Date") as set forth above.

1. Definitions.
1. “Client Content” means all materials and works owned by Client and in existence as of the Effective Date, or which are created solely by Client, and provided to Kayak for use in the creation of the Final Deliverables hereunder.
2. “Confidential Information” means any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and Client records, and that is not generally known in the industry of the Client and where the release of such information could reasonably be expected to cause harm to the Client.
3. “Statement of Work” means a document describing the work and services to be accomplished, the associated fees, and any additional terms required for each individual project between the parties, which references this Agreement, and is executed (electronically or otherwise) by an authorized representative of each party.
4. “Final Deliverables” means the final portion of Work Product to be delivered by Kayak to Client as set forth in each Statement of Work.
5. “Kayak Tools” means all strategies, methods, tools, software, worksheets, and know-how created or used by Kayak in the performance of the services hereunder. Kayak Tools include but are not limited to the communication brief, the persona development tool, CMS themes, and related marketing tools.
6. “Third Party Materials” means any content or materials owned by third parties and incorporated into the Final Deliverables.
7. “Work Product” means all content, materials, designs, and other work product, including but not limited to graphics, visual elements, photography (moving or still), audio-visual works, sounds, formats, text, modifications to Client Content, and the selection or arrangement of any such materials with Client Content or Third Party Materials, which are created or commissioned in whole or in part by Kayak in the performance of the services under each Statement of Work. Work Product shall not include Client Content, or Third Party Materials.
2. Services Provided.
1. Subject to the terms of this Agreement, Kayak shall provide Client with the services set forth in a Statement of Work.
2. Client may request additional services, or changes to the Statement of Work, by written notice to Kayak detailing the additional or changed services requested. Within ten business days, Kayak will propose any modifications to the Statement of Work, and any resulting additional fees, delays, or changes to deliverables or terms. Changes or additions to any Statement of Work may be billed at Kayak’s then-current rates.
3. The parties may enter additional Statements of Work at any time under this Agreement. All Statements of Work referencing this Agreement are hereby deemed incorporated herein.
3. Compensation.
1. Client shall pay all fees set forth in the Statement of Work. Fees will be invoiced to Client on the schedule set forth in the Statement of Work, and any deposits required will be invoiced upon execution of the Statement of Work. All undisputed amounts are due upon Client’s receipt of invoice and shall be payable within five days of Clients receipt of invoice unless otherwise specified in the Statement of Work. Any prepaid services must be used within the applicable time period set forth in the Statement of Work, and no refunds shall be available for unused portions of prepaid services. Fees listed on a time and materials basis are estimates only, and actual hours and materials may vary.
2. All overdue payments are subject to a late charge equal to 1% per month, compounded monthly (12.68% per annum), or a fixed fee of $50 per week. If payments are not timely received, Kayak may at its sole discretion suspend services under such Statement of Work until payment is received, and/or apply selected charge.
3. The fees in any Statement of Work do not include sales tax, or other applicable duties as may be required by law. Any sales tax and duties required by law will be charged to the Client.
4. Client shall reimburse Kayak for Kayak’s reasonable and necessary expenses incurred in connection with providing the services under this Agreement. Reasonable and necessary expenses include but are not limited to deployment expenses, stock image research, hosting fees, SSL certifications and domain registrations. Kayak will use commercially reasonable efforts to notify Client in advance of incurring any such fee.
4. Confidentiality.
1. Kayak will not disclose or use, for any purpose, any Confidential Information which Kayak has obtained, except as required to perform under this Agreement, as authorized by the Client, or as required by law. The obligations of confidentiality will apply during the Term of this Agreement and will survive for a period of two years after termination of this Agreement.
2. The obligations of this Section 4 shall not apply to Confidential Information which (i) is or becomes publicly available through no fault of Kayak, (ii) is known by Kayak at the time of disclosure, (iii) is disclosed to Kayak by any third party without any obligation of confidentiality to Client, or (iv) is independently developed by Kayak without use of the Confidential Information.
3. Upon termination of this Agreement, Kayak will destroy or return to the Client any Confidential Information which is the property of the Client.
5. Ownership of Intellectual Property.
1. Except as expressly set forth herein, all right, title, and interest in and to the Kayak Tools, Work Product, and Final Deliverables, including all intellectual property rights therein, shall be owned by Kayak, and Client obtains no rights or interest in or to the Kayak Tools, Work Product, and Final Deliverables. Upon delivery of the Final Deliverables, Client shall return to Kayak all Work Product in Client’s possession.
2. Subject to the terms and payment obligations in this Agreement, Kayak hereby grants, and shall grant, to Client a nontransferable, non sublicenseable, perpetual, right to use, copy, and publicly display, the Final Deliverables for its own internal business purposes.
3. Client is expressly prohibited from modifying, cropping, distorting, or otherwise manipulating or editing the Final Deliverables, or creating derivative works from the Final Deliverables, except for the Client’s own internal business purposes. Kayak retains the right to reject the use of any alteration of the Final Deliverables which are unlawful, discriminatory, obscene, or otherwise harmful in Kayak’s sole discretion.
4. Client shall retain all right, title, and interest in and to the Client Content, including any intellectual property therein.
5. Intellectual property rights in and to the Third Party Materials shall be owned by the respective third parties. Kayak will inform Client of all Third Party Materials to be included in the Final Deliverables. Client shall license or purchase all Third Party Materials to be included in the Final Deliverables at Client’s own expense.
6. While your use of the Kayak Tools is governed by this Agreement, your access and use of Third Party Materials and the services provided through third party sites are governed by the terms of service and other agreements posted on these third party sites. You are responsible for ensuring that your use of Third Party Materials complies with any applicable terms of service or other agreements. 
7. All displays or publications of the Final Deliverables shall contain an accreditation notice in Kayak’s name in the form, size, and location as incorporated by Kayak in the Final Deliverables. Kayak hereby grants, and shall grant, to Client the limited right to display Kayak name and logo solely in the manner provided by Kayak in the Final Deliverables.
6. Warranties.
1. Kayak hereby warrants to Client that Kayak will provide the services identified in the Statement of Work in a professional and workmanlike manner and in accordance with reasonable professional standards for such services.
2. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THE FINAL DELIVERABLES ARE PROVIDED “AS IS” AND KAYAK MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE FINAL DELIVERABLES, THIRD PARTY MATERIALS, OR ANY WORK PRODUCT. KAYAK EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE FINAL DELIVERABLES, THIRD PARTY MATERIALS, OR WORK PRODUCT.
7. Independent Contractor.
1. In providing the services under this Agreement it is expressly agreed that Kayak is acting as an independent contractor and not as an employee. Kayak and the Client acknowledge that this Agreement does not create a partnership or joint venture between them. Kayak reserves the right to use independent third party contractors to perform services under the Agreement.
8. Term of Agreement.
1. The term of this Agreement (the "Term") will begin on the Effective Date and will remain in full force and effect for as long as there remains an active Statement of Work. As used herein, the term "active Statement of Work" means a Statement of Work under which services are still being performed.
2. Either party may terminate this Agreement, or a Statement of Work, on thirty (30) days’ prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement or that particular Statement of Work, and fails to cure the breach during that thirty (30) day period.
3. Either party may terminate this Agreement on written notice to the other party if the other party makes an assignment for the benefit of creditors, is liquidated or otherwise dissolved, becomes insolvent, files a petition in bankruptcy, or a receiver, trustee, or custodian is appointed for such other party.
4. Kayak may terminate this Agreement without cause by providing Client with thirty (30) days written notice. Client may terminate this Agreement without cause upon thirty (30) days’ prior written notice, provided Client has paid all unpaid invoices for work performed up to the date of termination.
5. In the event of termination of this Agreement or any Statement of Work, Kayak shall submit a final invoice detailing the unpaid fees for the work performed up through the date of termination, and Client shall pay such invoice in accordance with the payment terms set forth in this Agreement. The termination of one Statement of Work shall not affect any other Statement of Work in effect at the time of termination.
9. Limitation of Liability.
1. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF KAYAK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND AFFILIATES, TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT TO KAYAK UNDER THE STATEMENT OF WORK GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL KAYAK BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED BY KAYAK, EVEN IF KAYAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Indemnification.
1. Kayak shall indemnify, defend, and hold Client harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging Kayak’s gross negligence or willful misconduct in connection with its performance under this Agreement.
2. Client shall indemnify, defend, and hold Kayak harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party related to Client’s failure to obtain any intellectual property right, release, or permission with respect to Third Party Materials or Client Content included in the Final Deliverables.
3. The indemnification obligations above are conditional, to the extent an indemnitor is actually prejudiced by the failure to comply, on the indemnitee (i) promptly notifying the indemnitor in writing of the claim; (ii) giving sole control of the defense and all related settlement negotiations to the indemnitor, provided no settlement shall be agreed to unless the indemnitee is fully released from all liability; and (iii) providing indemnitor with reasonable assistance and information, at indemnitor’s cost, to allow indemnitor to perform its obligations under this section.
11. Miscellaneous.
1. Dispute Resolution. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with applicable statutory rules of mediation. If mediation is unavailable or is not successful in resolving the entire dispute, any outstanding issues will be submitted to final and binding arbitration in the Province of Alberta, and in accordance with the laws of the Province of Alberta. The arbitrator's award will be final, and judgment may be entered upon it by any court having jurisdiction within the Province of Alberta.
2. Notice. All notices required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties of this Agreement to the address specified in a Statement of Work.
3. Modification of Agreement. Except as otherwise provided, any amendment or modification of this Agreement or additional obligation assumed by either party in connection with this Agreement will only be binding if evidenced in writing and signed by an authorized representative of each party.
4. Assignment. Neither party may assign or otherwise transfer its obligations under this Agreement without the prior written consent of the other party. This Agreement will enure to the benefit of and be binding on the parties and their respective heirs, executors, administrators and permitted successors and assigns.
5. Entire Agreement. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement. This Agreement, and its related Statements of Work, is the entire agreement between the parties and supersedes all prior understandings, whether oral or written, between the parties relating to the subject matter hereof.
6. Titles/Headings. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
7. Governing Law. This Agreement, and all suits and special proceedings under this Agreement, shall be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the Province of Alberta, without regard to the jurisdiction in which any action or special proceeding may be instituted.
8. Severability. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
9. Waiver. The waiver by either party of a breach, default, delay or omission of any of the provisions of this Agreement by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.
10. Kayak will provide notice to Client of any changes to this Agreement by posting it online at the location set forth in the Statement of Work or by other reasonable means. Client will review this Agreement periodically for changes. Client’s continued acceptance of services after such notice constitutes Client’s binding acceptance of the amended Agreement. If any such revision is unacceptable to Client, Client’s only remedy is to terminate this Agreement in accordance with section 8.4.

Affiliate Agreement

Effective Date: July 20th, 2023

https://www.kayakmarketing.com

THE AGREEMENT: This Affiliate Agreement (hereinafter called the “Agreement”) is provided by the following organization, hereinafter referred to as “Company”: Kayak Creative Services Inc. (Kayak Marketing). Our primary website is located at the address listed above. The Agreement is a legal document between you and the Company that describes the affiliate relationship we are entering into. This Agreement covers your responsibilities as an affiliate and our responsibilities to you. Please ensure you read and understand the entirety of this document, as well as have a lawyer’s assistance if you desire because each of the terms of this Agreement is important to our working relationship.

1) DEFINITIONS

The parties referred to in this Agreement shall be defined as follows:

a) Company, Us, We: As we describe above, we’ll be referred to as the Company. Us, we, our, ours, and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.

b) You, the Affiliate: You will be referred to as the “Affiliate, Sales Partner, Approved Partner.” You’ll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.

c) Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as “Parties” or individually as “Party.”

d) Affiliate Program: The program we’ve set up for our affiliates as described in this Agreement.

e) Affiliate Application: The fully completed form must be provided to us for consideration of your inclusion in the Affiliate Program.

f) Website: The primary website we’ve noted above will be referred to as Website.

2) ASSENT & ACCEPTANCE

By submitting an application to our Affiliate Program, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please leave the website immediately and do not submit an application to our Affiliate Program. This Agreement specifically incorporates by reference any Terms of Conditions, Privacy Policies, End-User License Agreements, or other legal documents which we may have on our website.

3a) AGE RESTRICTION

You must be at least 18 (eighteen) years of age to join our Affiliate Program or use this Website. By submitting an application to our Affiliate Program, you represent and warrant that you are at least 18 years of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.

3b) LINK SCHEME RESTRICTION

You represent and warrant that you are not participating in couponing or other link scheme service which are not permitted.

4) PROGRAM SIGN-UP

In order to sign up for our Affiliate Program, you will first be asked to submit an Affiliate Application to join. The Affiliate Application may be found at the following website: https://www.kayakmarketing.com/partner-program.

Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. We evaluate each and every application and are the sole and exclusive decision-makers on Affiliate acceptance. If we choose not to allow your inclusion in the Affiliate Program, we will attempt to notify you in a reasonable manner. If you do not hear from us within a reasonable time frame, please consider your application rejected. We are not obligated to provide you with any explanation for your rejection, but please be advised we may reject applicants for any reason or manner, including but not limited to a website or social media page which violates our Terms of Service.

If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application is accepted, each of the terms and conditions in this Agreement applies to your participation. We may also ask for additional information to complete your Affiliate Application or for you to undertake additional steps to ensure eligibility in the Affiliate Program.

5) NON-EXCLUSIVITY

This Agreement does not create an exclusive relationship between you and us. You are free to work with similar affiliate program providers in any category. This agreement imposes no restrictions on us to work with any individual or company we may choose.

6) AFFILIATE PROGRAM

After your acceptance into the Affiliate Program, you must ensure your account is set up thoroughly, including specific payout information and location (such as a bank or online account which we may use to post payment).

Please be advised that the below is a general description of the Affiliate Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the rest of this Agreement.

We will provide you with a specific link or links which correspond to certain products we are offering for sale (collectively, the “Link”). The Link will be keyed to your identity and will send online users to the Company’s website or websites. You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. We may modify the specific link or links and will notify you if we do so. You agree to only use links that are prior approved by us and to display the Link prominently on your website or social media page, as described in your Affiliate Application (collectively, the “Affiliate Site”).

Each time a user clicks through the Link posted on the Affiliate Site and completes the sale of the product or service and we determine it is a Qualified Purchase, as described below, you will be eligible to receive the following percentage of the sale: 10% as an Affiliate Partner, or 20% as a Sales Partner, depending on the assigned level of partner program assigned.

7) SPECIFIC TERMS APPLICABLE

We will determine whether the payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms of this Agreement.

Processing and fulfilment of orders is our responsibility. We will provide real-time data regarding your account with us through the partner portal on which you log into the website.

As described above, in order to be eligible for payout, user purchases must be “Qualified Purchases.”

Qualified Purchases:

a) Must not be referred by any other partner or affiliate links or Direct Link of the Company (in other words, Qualified Purchases are only available through your specific Affiliate Link or Direct Link;

b) May not be purchased by an already-existing partner or affiliate of the Company;

c) May not be purchased prior to the Affiliate joining the Affiliate Program;

d) May only be purchased through a properly-tracking Affiliate Link or Direct Link within 180 days;

e) May not be purchased by a customer in violation of any of our legal terms or Terms of Service;

f) May not be fraudulent in any way, in the Company’s sole and exclusive discretion;

g) May not have been induced by the Affiliate offering the customer any coupons or discounts;

h) May only be credited to the initial affiliate who referred the customer;

i) May not be related to a promotion conducted by the Company;

8) PAYOUT INFORMATION

Payouts will only be available when the Company has your current address information as well as accounting and tax documentation. Accounting information may include the routing and account number of a bank where you wish to post a direct deposit or may include an email address for an online method of payment.

Currently, the Company employs the following methods of payout:

AffiliateWP Payouts Service: Sandhills Development

For any changes in your address or accounting information, you must notify us immediately and we will endeavor to make the changes to your payout information as soon as possible.

Payouts will be available the month or period after they accrue. For example, if payouts are made every 30 days, an entire 30 day period must finish for the payout of that period to be available in the following period.

We explicitly reserve the right to change payout information at our sole and exclusive discretion. If we do so, you will be notified.

Payouts are also subject to the following restriction:

a) Payouts are only available after having been fully paid and with us at least the following amount of time: four (4) weeks.

For any disputes as to payout, the Company must be notified within thirty days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty days of payout will not be addressed.

9) REPORTS

You may log into your account with us to review reports related to your affiliation, such as payout reports and Qualified Click and/or Purchase information. Please be advised, however, that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real-time and therefore may be subject to change prior to payout.

10) TERM, TERMINATION & SUSPENSION

The term of this Agreement begins when we accept you into the Affiliate Program. It can be terminated by either Party at any time with or without cause.

You may only earn payouts as long as you are an Affiliate in good standing during the term. If you terminate this Agreement with us, you will qualify to receive payouts earned prior to the date of termination.

If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unclaimed payout.

We specifically reserve the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.

At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.

11) INTELLECTUAL PROPERTY

You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company (“Company IP”).

Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable license to access our websites in conjunction with the Affiliate Program and use the Company IP solely and exclusively in conjunction with identifying our company and brand on the Affiliate Site to send customers to the Affiliate links we provide. You may not modify the Company IP in any way and you are only permitted to use the Company IP if you are an Affiliate in good standing with us.

We may revoke this license at any time and if we find that you are using the Company IP in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.

Other than as provided herein, you are not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without our express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any meta-tags or code, or in any way that is likely to cause consumer confusion.

Please be advised that your unauthorized use of any Company IP shall constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in court. You may be obligated to pay monetary damages or legal fees and costs.

You hereby provide us a non-exclusive license to use your name, trademarks, and service-marks if applicable, and other business intellectual property to advertise our Affiliate Program.

12) MODIFICATION & VARIATION

The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will let you know via electronic means, which may include an email. If you don’t agree to the update or replacement, you can choose to terminate this Agreement as described below.

a) To the extent any part or subpart of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.

b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your browser cache when doing so to avoid accessing a prior version of this Agreement.

13) RELATIONSHIP OF THE PARTIES

Nothing contained within this Agreement shall be construed to form any legal partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.

14) ACCEPTABLE USE

You agree not to use the Affiliate Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage our websites, products, services, or the general business of the Company.

You further agree not to use the Affiliate Program:

• I) To harass, abuse, or threaten others or otherwise violate any person’s legal rights;
• II) To violate any intellectual property rights of the Company or any third party;
• III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
• IV) To perpetrate any fraud;
• V) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
• VI) To publish or distribute any obscene or defamatory material;
• VII) To publish or distribute any material that incites violence, hate, or discrimination towards any group;
• VIII) To unlawfully gather information about others.
• IX) To request domain attribution registration for a site other than your own;
• X) To set a link or links for SEO purposes;
• XI) To connect to a couponing or other link scheme-type website or service.

15) AFFILIATE OBLIGATIONS & COMPLIANCE

You are responsible for ensuring the operation and maintenance of the Affiliate Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.

We may monitor your account, as well as clicks and/or purchases coming through your account. If we determine you are not in compliance with any of the terms of this Agreement, we have the right to immediately terminate your participation in the Affiliate Program.

We require all of our Affiliates to comply with all applicable statutes, regulations, and guidelines set by the federal government, through the Consumer Protection Act Canada, as well as provincial or local governments as mandated. Consumer Protection Canada recommends that affiliate relationships, such as the relationship between you and the Company, be disclosed to consumers.

We recommend that you seek independent legal counsel to advise you of our obligations to disclose in this manner.

You are required to post a conspicuous notice on your website regarding your participation in the Affiliate Program. The notice does not have to contain precise words like the example given below, but should be similar:

• We engage in affiliate marketing. We earn funds via clicks to our affiliate program through this website or we receive funds through the sale of goods or services on or through this website.

We also require you to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include but are not limited to, any applicable laws in Canada, the United States, or the General Data Protection Regulation of the European Union. We also require that you implement adequate organizational and technical measures to ensure an appropriate level of security for the data that you process. Further, you hereby agree to comply with any requests which we may make to you regarding compliance with the General Data Protection Regulation or requests which you may receive from data subjects.

If we find you are not in compliance with any of the requirements of this subpart, we may terminate our relationship with you at our sole and exclusive discretion.

16) REVERSE ENGINEERING & SECURITY

You agree not to undertake any of the following actions:

a) Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of our websites or services;

b) Violate the security of any of our websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining, or interference to any host, user, or network.

17) DATA LOSS

The Company does not accept responsibility for the security of your account or content. You agree that your participation in the Affiliate Program is at your own risk.

18) INDEMNIFICATION

You agree to defend and indemnify the Company and any of its agents (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to your use or misuse of the Affiliate Program, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defence if the Company wishes.

19) SPAM POLICY

You are strictly prohibited from using the Affiliate Program for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.

20) ENTIRE AGREEMENT

This Agreement constitutes the entire understanding between the Parties with respect to the Affiliate Program. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral.

21) SERVICE INTERRUPTIONS

The Company may need to interrupt your access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.

22) NO WARRANTIES

You agree that your use of the Affiliate Program is at your sole and exclusive risk and that any services provided by us are on an “As Is” basis. The Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. The Company makes no warranties that the Affiliate Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company also makes no warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to you, through your computer system, or as a result of the loss of your data from your use of the Affiliate Program is your sole responsibility and that the Company is not liable for any such damage or loss.

23) LIMITATION ON LIABILITY

The Company is not liable for any damages that may occur to you as a result of your participation in the Affiliate Program, to the fullest extent permitted by law. The maximum liability of the Company arising from or relating to this Agreement is limited to one hundred ($100) US Dollars. This section applies to any and all claims by you, including, but not limited to, lost profits or revenues, consequential or punitive damages, negligence, strict liability, fraud, or torts of any kind.

24) GENERAL PROVISIONS:

A) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

B) JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Affiliate Program, you agree that the Province of Alberta shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the province and federal courts of the following location: Calgary, Canada. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non-conveniens or similar doctrine.

C) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: Canada. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of Alberta. Each Party shall pay its own costs and fees. Claims necessitating arbitration under this section include but are not limited to contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes, or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.

D) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased, or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.

E) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and subparts will be enforced to the maximum extent possible. In such conditions, the remainder of this Agreement shall continue in full force.

F) NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or subpart of this Agreement will not constitute a waiver of any other part or subpart.

G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.

H) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

I) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including email or fax. For any questions or concerns, please email us at the address provided in our communications.