Inkubate Affiliate Program Terms and Conditions
The Inkubate services are provided by Inkubate, LLC with its offices located at 75 New Hampshire Avenue, Suite 100, Portsmouth, NH 03801. Throughout these Affiliate Program Terms and Conditions (“Affiliate Program Terms” or this “Agreement”), the terms “Affiliate Program”, “Inkubate Rewards” and “MyRewards” together, singularly and interchangeably are terms that refer to the Affiliate Program operated by Inkubate.
Inkubate may update this Agreement at any time, without notification to you, and you should review this Agreement from time to time by accessing the Inkubate Site and the Inkubate Rewards link on the home page. Your continued use of the Site, software and Affiliate Program shall be deemed irrevocable acceptance of any such revisions.
Each participant in the Affiliate Program (“Affiliate,” “you,” or similar terms) offered by Inkubate, LLC, the company providing the Inkubate Web App and Services (the “Program Operator,” “Inkubate,” “we,” or “us”) at www.Inkubate.com (the “website”) expressly agrees to these Affiliate Program Terms.
NOTICE: Please read this Agreement carefully. Unless you expressly agree and consent to this Agreement, you may NOT participate in the Affiliate Program. By participating in the Affiliate Program, you are agreeing to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to all of the terms of this Agreement, please do not register for or participate in the Affiliate Program.
This Agreement contains a mandatory arbitration provision that requires the use of arbitration on an individual basis to resolve disputes.
1. Submitting Your Application.
Once you submit your application, you are bound by the terms of this Agreement. When filling out the application you must provide accurate, current and complete information, and you shall keep such information up to date. Participation in the Inkubate Affiliate Program entails you legally advertising our services to receive commission on referral customers. The Program Operator reserves the right to reject any Affiliate application for any reason, including, without limitation, if, in the Program Operator’s opinion, that person or entity violates established laws or commonly held standards of decency. For example, we will reject applications from any person or company that promotes any form of violence, illegal activities, or from applicants who the Program Operator prefers not to be associated with.
We are using FirstPromoter (https://www.firstpromoter.com, provided by Igil Webs SRL.) as a third-party service for handling the Affiliate Program.
2. Affiliate Responsibilities.
2.1. Once you have been admitted to the Affiliate Program, we may re-evaluate your application at any time. The terms and conditions of this Agreement will begin when your application has been submitted and will end when your Affiliate account has been terminated; provided that all terms which by their nature should survive termination shall survive. The Program Operator and their associated companies believe in operating with the strictest codes of professional conduct. Any Affiliate who brings the Program Operator or their employees, partners, or associates into disrepute, or who promotes any form of slander, violence, racism, or unfair business practices, can have their Affiliate status canceled and any outstanding commissions will be forfeited. Affiliation can be immediately revoked if we deem your site to be unsuitable for any of the following reasons, including, without limitation:
2.1.1. False advertisements concerning Inkubate
2.1.2. Spamming using your Affiliate link
2.1.3. Usage of materials that infringe on any copyright, trademark or other intellectual property rights or violate the law
2.1.4. Harassment or intimidation of others on your website
2.1.5. Content deemed to be graphic or explicit by Inkubate
2.1.6. Promotion of illegal activities
2.1.7. Usage of technology to potentially divert commission from other affiliates in our program.
2.2. Inkubate reserves the right to review your placement and approve the usage of your Affiliate links and you agree to promptly comply with all Inkubate instructions regarding such placement and usage. You may use graphics and texts provided to you by us as marketing assets or create your own as long as it is appropriate and in conformity with our brand identity. You may not use your own link to make purchases.
2.3. Affiliate may not use their own promotional referral links to purchase a discounted Inkubate services for them or the companies where they are an employee or contractor. Affiliate discounts and referral commissions will not be honored for accounts that use the program for themselves (self-referral prohibition clause).
2.4. Affiliate is solely responsible for the development, operation, and maintenance of Affiliate’s site and for all of Affiliate’s content, information, advertisements, promotions and other items, whether appearing on Affiliate’s site, a third party’s site, in social media sites or other communications (hereinafter, Affiliate’s “Materials”). We may monitor your site as necessary to ensure your content is up to date and notify you of any changes that should be made to help your affiliate performance. Your affiliation can be terminated if we find your site has not been updated in over one (1) year. A written notice will be given via email should we find your site outdated. You will have forty-eight (48) hours to respond with an updated site before your affiliation is terminated. For example, you will be solely responsible for:
- The technical operation of your site and all related equipment.
- Creating and posting product or service descriptions and linking those descriptions to the system.
- The accuracy and appropriateness of Materials that you create or post.
- Ensuring that your Materials do not violate or infringe upon the rights of Program Operator or any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights).
- Ensuring that your Materials are not libelous or otherwise illegal.
- Ensuring that your Materials are not obscene, pornographic, vulgar, offensive, discriminatory, or profane.
- Ensuring that your Materials comply with all applicable laws and regulations, including, without limitation, laws regarding advertising.
- Ensuring that any information and data collected by you or by third parties on your behalf is collected and used in compliance with applicable privacy law, including, without limitation, the CCPA and the GDPR.
- Ensuring that you do not engage in any false or deceptive trade practices, including any statement about the system or our Affiliate Program that is false or misleading.
We disclaim all liability for the above matters, including all liability related to your site and your Materials. Further, Affiliate will defend, indemnify and hold Program Operator (including all our directors, officers, employees, affiliates, and related entities) harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees and court costs) arising from or related to the development, operation, maintenance, contents, and use of your site or your Materials, your negligent or willful acts, or your breach of this Agreement.
2.5. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Inkubate. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.
2.6. The Program Operator requires your primary email address be listed in your Affiliate Profile. Those who use an email address that generates an error response consistently (e.g., “User is over quota” or “Mailbox full”) will forfeit any commissions due and this Agreement will be terminated immediately. You may not use an email address with an auto responder as your Program Operator email address. When you visit the Program Operator’s websites or send emails to the Program Operator, you are communicating electronically. You consent to receive communications from the Program Operator electronically. The Program Operator will communicate with you by email or by posting notices in the affiliate portal. You agree that all agreements, notices, disclosures and other communications that the Program Operator provides to you electronically satisfy any legal requirement that such communications be in writing. As an Affiliate, you understand that you may NOT opt out of any emails that you receive from the Program Operator. As an Affiliate, you must continually have a valid email account on file with the Program Operator or we reserve the right to terminate your participation immediately, without any refund of any license fees paid or payment of any commission due.
2.7. Affiliate Sales & Tracking. After signing up for the Affiliate Program, you will receive a unique affiliate URL that you will use to advertise the website. When someone clicks through this URL, a cookie (or similar tracking technology) will be set in their browser with your Affiliate ID and their IP address may also be logged with your Affiliate ID. During that visit to the website or any later visit, when a purchase is made or refunded, the commission will be given based on the existence of the cookie. We may collect, use and share any information or data generated through the system for our business purposes. In order to receive proper credit for sales, a person or entity must purchase through your unique affiliate URL. Masking or cloaking of the links (whether done by software or by a script and sometimes referred to as “affiliate link cloaking”) may or may not work with parts of the website. The Program Operator allows masking or cloaking but you must provide a repeatable process for our verification of the cloaked link, otherwise the use of the masked or cloaked link is disallowed. We may also withhold payment if, in our reasonable discretion, we have reason to believe that acts or omissions by you related to our Affiliate Program are fraudulent, illegal, or otherwise improper or in violation of this Agreement.
2.8. Affiliate Account Interface.
We will send you a link at which you must create a login and password on https://inkubate.firstpromoter.com/ and agree to any applicable terms and conditions provided by Inkubate in order to enter the Firstpromoter secure affiliate account interface. From their site, you will be able to view and receive your reports regarding your commissions due to you.
3. Commissions & Referral Fees.
Subject to the terms and conditions of this Agreement, you will receive a commission for sending authorized sales via your affiliate links. Payout rates will be defined on the Affiliate Dashboard and may be changed at any time.
Authorized sales will be credited according to the following terms:
- Crediting Policy: Last Click
- Discounts: Apply for each purchase transaction unless otherwise stated
- Click Referral Period: Referrals are only considered for credit if they occur within 60 days of the action
- Renewal or Recurring Transactions: If applicable, payout applies to all recurrences of return customers if the initial transaction was initiated by your affiliate links.
It is your responsibility to determine if the payout for a link you have placed has been changed or discontinued. Inkubate uses a third party to handle all affiliate tracking. All disputes regarding whether a commission is due shall be resolved by Program Operator’s reasonable discretion.
Commissions on products and services are paid at the most-current rates as indicated on the website, as updated from time to time.
ATTENTION: If the account referred has not been created through your custom affiliate link we cannot attribute the commission to you and cannot issue any payouts for that account. Please make sure all accounts you refer are created through your custom affiliate link.
3.1 Commission Schedule.
Commissions are paid out within thirty (30) days of each calendar quarter for sales which have been booked and payments received by Inkubate sixty (60) days after the transaction date, but only if Affiliate’s account has a minimum balance of $25 on the payment date. Subsequent commission payments will continue to be paid out within the same subsequent schedule model.
Commissions are not paid for any sales for which payment has not been received, or for any transaction that has been rejected for any reason. We are not responsible for paying interest to Affiliates for accrued but not yet delivered commission payments.
If a transaction incurs a charge-back or is refunded or, if an online transaction is not completed in every way, or if we have reason to believe a transaction is fraudulent or violates any of the terms of this Agreement in our reasonable discretion, then no commission shall be paid to the Affiliate for such transaction. If a commission has already been paid, then it will be deducted from an active Affiliate’s future commissions or Affiliate will be required to repay Inkubate within sixty (60) days of receiving an invoice from Inkubate.
All commissions are paid in US Dollars via PayPal. Each Affiliate is responsible for always maintaining a PayPal account through which they receive their commissions/referral fees.
3.2. Payment Failures.
The Program Operator assumes no responsibility for an Affiliate not maintaining their PayPal account. In the event that you fail to setup or maintain an active PayPal account that is current and registered with the Affiliate Program and, if the Program Operator is unable to pay you any earned commissions or referral fees because of such a failure (“Failure”), then you agree that you have one hundred-twenty (120) days to cure (“Elapse Curative Period”) any such Failure. If you have still not cured the Failure by 11:59:59 PM Eastern Time on day 120 of the Elapse Curative Period, then you agree to waive and not be paid for any such commissions or referral fees so impacted. You also agree that it is your responsibility to monitor your affiliate account to assure PayPal connectivity to the Program Operator’s payment system and you further acknowledge that sufficient notice has been given to you herein, that the Program Operator is not required to issue notification(s) of payment failure(s) resulting from the above Affiliate’s Failure, other than that information which can be seen by the Affiliate as provided under the “Payouts” section of the Affiliate’s dashboard when the Affiliate is logged in to the Program Operator’s affiliate platform.
Note: After any failed payment attempt due to the Affiliate’s Failure as defined above, the Affiliate must notify the Program Operator by email at: MyReferrals@inkubate.com, once PayPal connectivity has been confirmed on the Affiliate Dashboard as established or re-established. This email must be received by the Program Operator’s email server and date stamped prior to the end of the Elapse Period in order that an additional payment attempt can be made by the Program Operator.
3.3. Payment Processor Fees.
All commissions are calculated based on the gross transaction, including all sales, refunds and charge-backs. “Gross transaction” means that processor fees are not deducted from the base amount when calculating commissions.
3.4. Unauthorized Charging or Receipt of Payments Through the Website.
No Affiliate or other person or entity may use the Program Operator’s website, or the Program Operator payment processing system, for private transactions. Any revenue collected through the Program Operator’s website or through the Program Operator payment processing system may become the sole property of the Program Operator.
Specifically, Affiliates may not link to the Program Operator’s website for processing of products or services that are not wholly sponsored by the Program Operator and authorized by the Program Operator and further, may not link to the Program Operator’s website for processing of any products beyond what the Program Operator has identified as salable products for the website and specific Affiliate sales.
Should any Affiliate of the Program Operator or other person or entity construct links that process orders through the Program Operator’s payment processing system, the act will be considered an attack of computing resources with intent to damage the website and therefore treated as a serious computer crime. Violators will be prosecuted to the fullest extent of the law.
4. Income Tax Liabilities.
Each Affiliate acts as an independent contractor and as such is responsible for any or all national, state, or foreign income taxes, fees, and any other tax liabilities that affect or concern the sales of the products or services, in your state or location. It is the Affiliate’s sole responsibility, and not the responsibility of the Program Operator, to take any steps necessary to recover these sums under the any applicable tax code and other applicable laws.
5. Promotion Restrictions.
While you are encouraged to market Inkubate on your own web site or social media platforms, the promotion of the Inkubate brand could be perceived to the public as a joint effort. Please be aware that certain forms of advertising are prohibited by Inkubate. Affiliates are prohibited from taking any action that could be considered impersonating the Program Operator or violating the Program Operator’s intellectual property rights in order to earn commissions or referral fees. This explicitly includes, but in no way is limited to, purchasing keyword advertisements and impersonating the Program Operator in such advertisement.
Affiliates agree to abide by the following guidelines when planning your marketing efforts:
5.1. Links, Trademarks and Logos.
Program Operator grants you a revocable, limited, non-exclusive, non-sublicensable, non-transferable, royalty-free license for the duration of this Agreement, solely for purposes of facilitating referrals to Program Operator’s website, products and services, to post certain trademarks, logos, URLs, and other materials or intellectual property that Program Operator may provide to you from time to time in the form provided by Program Operator (“Program Operator IP”). You agree that all uses of the Program Operator IP will be on behalf of Inkubate and the goodwill associated therewith will inure to the sole benefit of Inkubate.
Except for the limited foregoing license, nothing herein shall be construed to grant you any right, title or interest in or to the Program Operator IP and Program Operator reserves all rights, title and interest in and to the Program Operator IP. You acknowledge that the Program Operator IP, as well as all contents of the website, are the sole property of Program Operator or its third-party licensors. You agree that you will not, and will not permit others to, take any action inconsistent with such rights in the Program Operator IP. Without limiting the foregoing, the Program Operator trademarks and service marks may not be used to register internet domain names for any purpose. Affiliate may in no way use or display a Program Operator logo, image, trademark, or other Program Operator IP which may be distasteful, defamatory, misleading or misrepresentative.
5.2. Using “Inkubate”.
“Inkubate” cannot be used as a part of an Affiliate’s website domain name, blog, Facebook account, YouTube channel, Twitter username, or any username or URL associated with the Affiliate account.
5.3. Spam and Unsolicited Commercial Mailings.
Affiliate expressly agrees to comply with all laws, rules and regulations pertaining to the sending of UCE or SPAM and any Affiliate who, in the opinion of Inkubate, breaches the foregoing will have their Affiliate status canceled and any outstanding commissions will be forfeited, in addition to any other remedies to which Inkubate may be entitled hereunder or in law or equity. Each Affiliate agrees to indemnify, defend and hold Inkubate and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees and court costs) arising from Affiliate’s breach or alleged breach of this Section 5.3.
5.4. Paid Search Policies.
Bidding at larger pay per click search engines (PPCSE), such as Google, Yahoo, and Bing!, is an effective way to drive traffic to your website and earn higher commissions. However, Affiliates engaging in paid search marketing campaigns agree to adhere to the following terms and requirements:
5.4.1. Inkubate protects its trademark and does not allow any trademark bidding on any search engine or Paid Placement service or site. This includes, without limitation, Google, Yahoo, Bing!, Ask and other similar services. Affiliates may not bid on trademarked or registered terms of Inkubate (e.g., Inkubate™, ScoreIt!™. MarkIt!™, PitchIt!™) or any phrase type, misspelling, variation or combination thereof. Any Affiliates found to be in violation of the foregoing may be banned from the Inkubate Affiliate Program without prior notice, and on the first occurrence of behavior violating this Section 5.4.
5.4.2. Affiliates may not use their affiliate link or any of the Inkubate domains and/or URLs (including, without limitation, www.Inkubate.com) as the display domain or URL in the advertisement. When engaging in paid search engine campaigns, Affiliates must use their own domain and/or URL in their ads.
Forbidden Display URL Examples: www.Inkubate.com
Approved Display URL Examples: http://www.yourdomain.com/Inkubate
5.4.3. You may not make any misleading or false statements in your campaigns. To avoid conflicts and to protect the integrity of the Inkubate brand, Inkubate reserves the right to suspend your participation in the Affiliate Program and thus your commissions for phrases that Inkubate determines to be untrue or inflammatory claims of our products, services or websites. If not sure about your compliance with the foregoing, feel free to forward any text and proposed keywords/phrases you wish to bid on and are unsure of to the Affiliate Manager at MyReferrals@inkubate.com for approval or editing, PRIOR to your submitting it to Paid Search Network providers or Paid Inclusion Search Engines.
5.5. “Cookie-Stuffing” Policy.
“Cookie-Stuffing”, forced clicks, or similar activity is not permitted. “Cookie stuffing” is an unlawful strategy of generating affiliate sales. (e.g., use of cookie stuffing to cause tracking systems to conclude that a user has clicked through a qualifying affiliate link – and to pay commissions accordingly- even if the user has not actually clicked through any such link). Affiliates found using, employing or receiving this strategy will be immediately revoked and all commissions will be forfeited, in addition to any other remedies Program Operator may have hereunder or at law or equity.
5.6. Adware & Toolbars.
Affiliates are prohibited from transmitting any “interstitials,” “ParasitewareTM,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-Ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to customers from the time the customer clicks on a qualifying link to the Inkubate website until the time the customer has exited the Inkubate site (i.e., no page from the Inkubate site or any Inkubate content or branding is visible on the end-user’s screen). The terms “ParasitewareTM” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, without limitation, Google, MSN, Yahoo and similar search or directory engines); (c) set commission tracking cookies through loading of Inkubate site in IFrames, hidden links and automatic pop ups that open the Inkubate site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
5.7. No Predatory Advertising.
All Affiliates in the Affiliate Program agree to refrain from any type of predatory advertising practices, infringement of Program Operator’s or a third party’s intellectual property rights, or other practices that violate any applicable law including advertising and consumer protection law, and shall include, without limitation, dynamically replacing the affiliate ID of one affiliate with that of another with the effect of “stealing” the commission away from the affiliate that earned it, whether this be intentional or not and misuse as described in Section 7 below. Affiliates may not adjust any of the supplied affiliate links to reset cookies or bypass other safeguards in the system. Affiliates understand that engaging in such practices is grounds for immediate termination and forfeiture of any earned commissions.
5.8. Prohibited Incentives.
Affiliates may offer an approved exclusive discount through the unique affiliate link provided. Affiliates may not offer (i) any additional incentives in the form of, described as, or resulting in, discounting of any products or services of Program Operator; or (ii) any other incentives in the form of rebates, deposits, cash-back or other types of monetary incentives relating to the products or services of Program Operator. Such incentives are strictly prohibited and are grounds for immediate termination and forfeiture of any earned commissions. Notwithstanding the foregoing, Affiliates may offer bonuses, “bundles” or discounts on products or services ordinarily offered by Affiliates as incentives to purchasers of Program Operator’s products and services. For example, an Affiliate may offer discounts on Affiliate’s training programs in connection with the promotion of Program Operator’s products and services.
5.9. Mixing of Products.
As an Affiliate of the Program Operator, your website on which you advertise any products or services of the Program Operator may only include products that do not target persons 13 years of age or younger. Your website may NOT contain any content or images that are NOT suitable for being viewed by persons 13 years of age or younger if you include any reference whatsoever to the Program Operator, the website, or your affiliate link. On any website or communication in which you include any reference whatsoever to the Program Operator, its website, products, or services, you may NOT include any reference whatsoever to any form of “Adult” content. Any violation of these requirements will result in immediate termination of your affiliate status and you shall forfeit any unpaid commissions/referral fees. In the event that any violation of these requirements results in the suspension or termination of any payment processor for or by the Program Operator, you shall be liable for liquidated damages in the amount of $10,000 as well as any consequential or actual damages that the Program Operator may incur.
6. Grant of Licenses.
6.1. Subject to the terms and conditions of this Agreement, and only during the term of this Agreement, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable right and license to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material that we provide to you or authorize for such purpose in the form we provide (collectively, the “Licensed Materials”). You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Inkubate Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Inkubate and the goodwill associated therewith will inure to the sole benefit of Inkubate.
6.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light.
7. No Misuse.
It is understood that any individual that uses the Program Operator system (including in all cases related technology, emails, and other communications) shall not use it in connection with obscene, defamatory, hateful, illegal, misleading or politically disruptive material, the definition of which shall be at the sole discretion of the Program Operator. It is also understood that Affiliates shall not try to cheat the system in an effort to increase their payments due. If such misuse is detected, the Affiliate will be immediately terminated as an affiliate and any sums paid and any sums payable as and for commissions will be withheld or recouped, in addition to any other remedies to which Program Operator may be entitled. All Affiliates further agree to refrain from engaging in any hostile activity toward the system. Any individual that engages in such hostile activity, such as hacking, shall be held liable for any loss sustained by the Program Operator, or its associates due to such action.
8. Representations & Warranties.
You represent and warrant that:
8.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
8.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
8.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
9. Limitation of Liability; Disclaimer of Warranties.
The Program Operator will not be liable for indirect or accidental damages (including, without limitation, loss of revenue, commissions) due to Affiliate system sale tracking failures, commission processing system failures, losses of database files or backups thereof, attacks on computing resources, computer viruses, the continued viability of their products, any results of “intents of harm” to the program, or acts of God or nature. The Program Operator makes no claim or warranty that the operation of the websites or Program Operator’s system will be error-free nor will the Program Operator be held liable for any interruptions or errors.
In addition, in no event shall Program Operator be liable for any special, indirect, incidental or consequential damages (including, without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits (even if Program Operator was advised of the possibility of any of the foregoing), arising out of or in connection with this Agreement.
In no event will Program Operator’s or its affiliates’, contractors’, employees’, agents’, or third-party partners’, licensor’s, or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to this Agreement and your participation in our Affiliate Program (whether in contract, tort including negligence, warranty, or otherwise) exceed the amount paid by Program Operator to you hereunder during the twelve (12) months immediately preceding the day the act or omission occurred that gave rise to such claim.
THE PROGRAM OPERATOR MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER AGREEMENTS, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY STATED IN THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL IMPLIED REPRESENTATIONS AND WARRANTIES.
You hereby agree to indemnify, defend and hold harmless Inkubate, and its subsidiaries and affiliates, and their respective directors, officers, employees, agents, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including attorneys’ fees and court costs) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate trademarks or other intellectual property infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant, obligation or agreement made by you in this Agreement, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
All confidential and proprietary information, including, without limitation, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such confidential or proprietary information of the other party without express written permission of the disclosing party for a period of five (5) years after the termination of this Agreement.
12. Rights To Modify Agreement.
The Program Operator, and its associated companies may modify this Agreement (including the Affiliate Commission Schedule), at any time and at its sole discretion, by posting a change notice or a new Agreement in the Affiliate Portal. These changes will come into force immediately upon posting. The Affiliate’s continued participation in the Affiliate Program following such posting of a change notice or new Agreement shall constitute binding acceptance by the Affiliate of the change. If any modification to this Agreement is not acceptable to the Affiliate, the Affiliate’s only recourse is to terminate this Agreement.
13. No Waiver.
Failure or delay by the Program Operator in exercising any right, power or privilege under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power, or privilege under this Agreement. A waiver by the Program Operator of one or more terms, conditions, rights, duties, or breaches shall not constitute a waiver of any other.
14. Force Majeure.
The Program Operator shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, epidemic, pandemic, quarantine (government-ordered or, with a reasonable basis, voluntary), shortages of material or supplies, or any other cause reasonably beyond its reasonable control.
Should any provision of this Agreement be held to be void, invalid, or inoperative, such provision will be enforced to the extent permissible and the remaining provisions of this Agreement will not be affected.
16. Governing Law.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Hampshire, without regard to its choice of law rules.
17. Independent Contractors.
The Program Operator and you are independent contractors and nothing in this Agreement will be deemed to place the Parties in the relationship of employer-employee, principal-agent, partners, or joint venturers.
18. Arbitration; Waiver of Jury Trial; Class Action Waiver.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate shall be determined by binding arbitration in Portsmouth, New Hampshire before one arbitrator. The arbitrator must be: a) a lawyer licensed to practice law in the United States with a minimum of fifteen (15) years of legal practice or senior level business experience, or a retired judge with a minimum of five (5) years of service on the bench, b) an individual with at least five (5) years of experience as an arbitrator, and c) on the roster of neutrals of the AAA or similar nationally recognized ADR organization. All arbitration proceedings will be conducted in English. The arbitration shall be administered under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and administered by the AAA. Judgment on any award may be entered in any court having jurisdiction. This Section shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Additionally, WE EACH AGREE THAT A CLASS ACTION WAIVER IS PART OF THIS AGREEMENT, TO WIT: Any proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this Class Action Waiver is unenforceable, the arbitration agreement will be void as to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding.
19. Contacting Inkubate.
Any Inkubate Referral questions may be Emailed to the Inkubate Referral program at: MyReferrals@Inkubate.com
20. Reserved Rights.
Any rights not expressly granted herein are reserved to Inkubate.
These Affiliate Program Terms and Conditions were last updated March 1, 2021.