Carbon 60, Inc. Affiliate Agreement
This Affiliate Agreement (“Agreement”) is made and entered into as of the date set forth below into by and between Carbon 60, Inc. (“Carbon 60, Inc.”) and the undersigned (an “Affiliate”), regarding the Carbon 60, Inc. Affiliate Program (the “Affiliate Program”). (Carbon 60, Inc. and Affiliate are hereinafter sometimes referred to as a “party”“or together as the “parties”)
WHEREAS, Affiliate wishes to be an affiliate of Carbon 60, Inc. and to establish links, when applicable, from Affiliate’s website to the Carbon 60, Inc.’s website, http://22.214.171.124/~csixzerc.
Now therefore, for the mutual covenants and agreements contained herein, the parties agree as follows
“Affiliate” shall include the business, individual, or entity applying to or participating in the Affiliate Program, or that displays Carbon 60, Inc.’s products and Services and/or promotions on its website, or other means, using an affiliate tracking code, when applicable, in exchange for receiving a commission from Carbon 60, Inc. for sales directly resulting from such display.
“Affiliate Site” – The Affiliate’s website which displays Carbon 60, Inc.’s Products and Services and/or promotions.
“Carbon 60, Inc.’s Products and Services” – products and services that are available for purchase from Carbon 60, Inc.
“Commission Fees” – The amount Affiliate will be paid for each Qualified Purchase by a Referred Customer that Affiliate refers to Carbon 60, Inc. subject to the Commission Threshold and pursuant to the terms of this Agreement. The agreed Commission Fee will be three percent (3%).
“Commission Threshold” – The amount of Commission Fees an Affiliate must accrue prior to receiving a payment from Carbon 60, Inc.
“Qualified Purchase” – A sale of Carbon 60, Inc. Products and Services by Carbon 60, Inc. to a Referred Customer that is not excluded under Section 7.
“Referred Customer” – Each new and unique customer referred from Affiliate through a Link (as defined in Section 3) that provides valid account and billing information.
“Registration Form” – Any and all order forms or other signup or acceptance form submitted by a customer to purchase Carbon 60, Inc.’s Products and Services.
2.) Enrollment in the Affiliate Program
By execution of this Agreement by Affiliate and Carbon 60, Inc., Affiliate will be enrolled in the Affiliate Program.
3.) Promotion of Our Affiliate Relationship
a.) Use of Links. Upon execution of this Agreement by Affiliate and Carbon 60, Inc., Carbon 60, Inc. will make a variety of graphic and textual links available to Affiliate (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify Affiliate’s website as a member of the Affiliate Program and will establish a link from Affiliate’s website or e-mail to Carbon 60, Inc.’s website, c-60.com. Affiliate agrees to cooperate fully with Carbon 60, Inc. to establish and maintain such Links. Affiliate further agrees that Affiliate’s use of the Links must be in compliance with this Agreement at all times. Carbon 60, Inc. may modify the Links from time to time in its sole discretion. Affiliate will not use graphic or textual images (indicating a Link) or text messages to promote Carbon 60, Inc. that are not approved in advance by Carbon 60, Inc. All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, Affiliate agrees not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge (e.g. iframe). Any information with respect to Carbon 60, Inc. that is going to be displayed on the Affiliate Site must be preapproved by Carbon 60, Inc. in writing.
b.) Disclaimer. EXCEPT AS PERMITTED HEREIN, AFFILIATE SHALL NOT AND IS NOT AUTHORIZED TO (i) USE THE CARBON 60, INC. TRADEMARK, NAME OR ANY OF CARBON 60, INC.’S OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “CARBON 60, INC. IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT CARBON 60, INC.’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE CARBON 60, INC. IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF CARBON 60, INC. IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. AFFILIATE’S USE OF CARBON 60, INC. IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF CARBON 60, INC.’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT AFFILIATE TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY CARBON 60, INC.’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH CARBON 60, INC. SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF CARBON 60, INC.’S INTELLECTUAL PROPERTY RIGHTS.
c.) Discounts and Coupons. Affiliate is not allowed to post any refunds, credits or discounts on the Carbon 60, Inc. Products and Services, or other content concerning Carbon 60, Inc. without Carbon 60, Inc.’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the Carbon 60, Inc. website will in no way alter the look, feel, or functionality of the Carbon 60, Inc. website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Affiliate’s termination from the Affiliate Program or the withholding of Commission Fees.
4.) FTC Endorsement Compliance
a.) It is the intent of Carbon 60, Inc. to treat all of its customers fairly. Accordingly, Carbon 60, Inc. requires all Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites (e.g. directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of Carbon 60, Inc.’s Products and Services must prominently disclose the fact that Affiliate receives compensation for Referred Customers.
b.) For more information and suggestions about how to comply with these guidelines, Affiliate shall visit Carbon 60, Inc.’s page titled “Affiliate Disclosure Requirements and Examples.” Those can be found at this Web address: (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking). Please note that this page is only intended to provide guidance. It does not purport to provide legal advice and it does not guarantee that Affiliate will be in compliance with FTC regulations should Affiliate follow the suggestions presented. Affiliate is advised to seek and obtain its own legal advice on how these rules apply to Affiliate’s website or other promotional activities for which Affiliate receives compensation.
c.) Carbon 60, Inc. reserves the right to withhold Commission Fees and cancel the affiliate relationship with Affiliate should Carbon 60, Inc. determine, in its sole discretion, that Affiliate is not in compliance with the previously mentioned guide or other FTC regulations or guides that Carbon 60, Inc. deems relevant.
5.) Data Security
In addition to the obligations set forth in Section 4 (FTC Endorsement Compliance), Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist Carbon 60, Inc. in complying with any data subject rights request under the GDPR that Carbon 60, Inc. may receive from any individuals referred to Carbon 60, Inc. by Affiliate. Affiliate further agrees to promptly assist Carbon 60, Inc. in complying with any duties to cooperate with supervisory authorities under the GDPR.
6.) Order Processing
Carbon 60, Inc. will process orders placed by Referred Customers who follow the Links from an Affiliate Site to Carbon 60, Inc. Carbon 60, Inc. reserves the right, in its sole discretion, to reject orders that do not comply with certain requirements that Carbon 60, Inc. may establish from time to time. All aspects of order processing and fulfillment, including Carbon 60, Inc.’s services, cancellation, processing, refunds and payment processing will be Carbon 60, Inc.’s responsibility. Carbon 60, Inc. will track the Qualified Purchases generated by the Affiliate Site and will make this information available to Affiliate through a method of mutual agreement. To permit accurate tracking, reporting, and commission accrual, Affiliate must ensure that the Links between Affiliate’s website and Carbon 60, Inc.‘s website are properly formatted.
7.) Commission Determination; Qualified Purchases
a.) Commissions will be calculated based on the commission rates stated on the Carbon 60, Inc. website for each Qualified Purchase (as defined herein) subject to commission accruing pursuant to Section 8 below. A “Qualified Purchase” does NOT include the following:
i.) A purchase by a Referred Customer that has transferred from any Carbon 60, Inc. affiliates, partners or subsidiaries.
ii.) A purchase by a Referred Customer who is also associated with any Carbon 60, Inc. reseller, referral, or other program.
iii.) A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or other program.
iv.) A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
v.) A purchase by a Referred Customer that has not been in good standing for a period of at least thirty (30) days or is in violation of Carbon 60, Inc.’s Terms of Service, Acceptable Use Policy, or other applicable policies at the time the Commission Fees accrue.
vi.) A purchase that Carbon 60, Inc. suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
vii.) A purchase referred by an Affiliate that has an excessive cancellation rate as determined in Carbon 60, Inc.’s sole discretion.
viii.) A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate.
ix.) A purchase by a Referred Customer if the Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by Carbon 60, Inc. in its sole discretion.
x.) A purchase by a Referred Customer who received a popup with a discounted offer, while leaving Carbon 60, Inc.’s website during their purchase.
xi.) A purchase by a Referred Customer engaging in “Domain Speculation,” which is determined by the identification of two (2) web hosting accounts with the same Referred Customer’s name, email address, or other identifying characteristic as determined by Carbon 60, Inc. and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by Carbon 60, Inc., in its sole discretion.
b.) Carbon 60, Inc. reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by Carbon 60, Inc. in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
c.) Carbon 60, Inc. reserves the right to suspend the payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. Carbon 60, Inc. reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.
d.) Carbon 60, Inc. reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees; Carbon 60, Inc. is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact Carbon 60, Inc. to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in Carbon 60, Inc.’s sole discretion.
e.) Commissions for any Referred Customer who is associated with any Carbon 60, Inc. reseller, referral or other program may not be considered a Qualified Purchase. In other words, Affiliate may not receive double commissions or compensation.
f.) In the event the Referred Customers that are referred to Carbon 60, Inc. by an Affiliate are determined to have an excessive cancellation rate, as determined by Carbon 60, Inc. in its sole discretion, Carbon 60, Inc. reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
g.) Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud Carbon 60, Inc. or any violation of the terms of this Agreement constitutes immediate grounds for Carbon 60, Inc. to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
8.) Accrual of Commissions
Commissions will accrue and only become payable once Affiliate (i) provides all relevant tax and address documentation pursuant to Section 9 below and (ii) reaches the Commission Threshold of $50 based on the commission rates stated on the Carbon 60, Inc. website, solely as applied to Qualified Purchases. All Qualified Purchases still eligible to result in commissions under this Section 8 must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a commission. Once a commission has accrued under this Section 8, the amount of such commission (the “Commission Fee”) shall be due and payable to Affiliate under the terms of Section 9. Carbon 60, Inc. reserves the right to change the Commission Threshold by amending this Agreement and will notify Affiliate for any such amendment pursuant to the terms of this Agreement.
9.) Commission Payments
a.) Subject to the terms of this Agreement and the accrual of commissions as set forth in Section 8 above, commissions will be calculated according to the specified percentage or dollar amount set forth in the cumulative commission report provided to Affiliate on a monthly basis for each Qualified Purchase that accrues during the period for which such commission fee(s) is being calculated.
b.) Commission Fees will be processed approximately fifteen (15) to thirty (30) days after the end of the month or other period in which they accrue. Carbon 60, Inc. will only compensate Affiliate for Qualified Purchases made in accordance with this Agreement.
c.) Commission Fees shall be paid based on the current information in Affiliate’s profile and Affiliate is required to notify Carbon 60, Inc. promptly of any change in Affiliate’s address by updating Affiliate’s profile information in the Affiliate console. Affiliate is responsible for informing Carbon 60, Inc. of its desired payment form/type. Affiliate can update or change its desired payment method at any time by updating its affiliate profile located in the affiliate console. Any changes to Affiliate’s desired payment method may take up to two payout cycles to take effect.
d.) Affiliate will receive Commission Fees through PayPal or check, subject to the following conditions:
i.) PayPal Payments: Please refer to PayPal’s policy to ensure that Affiliate is eligible to receive payment if Affiliate resides outside of the United States https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside. (PayPal payments will only be reissued within one hundred and twenty (120) days of the original issue date in the case of an incorrect PayPal address or refusal from PayPal to accept a payment.)
iii.) Carbon 60, Inc. is not responsible for paying any third-party fees charged by PayPal or ACH in order for Affiliate to receive Affiliate Commission Fees.
e.) Carbon 60, Inc., in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
f.) Disputes: Affiliate agrees to file any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by Carbon 60, Inc. and Affiliate forfeits forever any rights to a potential claim.
g.) It is solely Affiliate’s responsibility to provide Carbon 60, Inc. with accurate tax and payment information that is necessary to issue a Commission Fee to Affiliate. If Carbon 60, Inc. does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.
h.) Each Affiliate is required to submit a W8/W9 tax form before any Commission Fees shall accrue. Affiliate is responsible for the payment of all taxes related to the commissions Affiliate receives under this Agreement. In compliance with U.S. tax laws, Carbon 60, Inc. will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
Return W8 or W9 to email: Affiliates@C-60.com or Fax to: 1-724-7731
i.) Any address change must be provided to Carbon 60, Inc. at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed.
10.) Obligations Regarding Affiliate’s Site
a.) Affiliate is solely responsible for the development, operation, and maintenance of its Affiliate Site and for all materials that appear on its Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of its Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on its Affiliate Site and linking those descriptions to Carbon 60, Inc.’s website; the accuracy of materials posted on the Affiliate Site (including, but not limited to, all materials related to Carbon 60, Inc. Products and Services); ensuring that materials posted on the Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. Carbon 60, Inc. disclaims all liability and responsibility for such matters.
b.) Carbon 60, Inc. has the right in its sole discretion to monitor signups through the Affiliate Site from time to time to determine if Affiliate is in compliance with the terms of this Agreement. If Affiliate is not in compliance Carbon 60, Inc. may terminate Affiliate’s participation in the Affiliate Program effective immediately.
11.) Carbon 60, Inc. Responsibilities
Carbon 60, Inc. will provide all of the information necessary for Affiliate to make Links from the Affiliate Site to Carbon 60, Inc.’s site. Carbon 60, Inc. will be solely responsible for order processing (including payment processing, cancellations, and refunds) for orders for Carbon 60, Inc. Products and Services placed by a Referred Customer following a Link from the Affiliate Site, for tracking the volume and amount of Qualified Purchases generated by the Affiliate Site, and for providing information to Affiliates regarding Qualified Purchase statistics. Carbon 60, Inc. will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related Carbon 60, Inc. service.
12.) Policies and Pricing
Referred Customers who buy Carbon 60, Inc. Products and Services through Carbon 60, Inc.’s affiliate network are deemed to be Carbon 60, Inc. Customers. Carbon 60, Inc.’s Terms and Conditions, rules, policies, and operating procedures will apply to such customers. Carbon 60, Inc. may change its policies, pricing, and operating procedures at any time. For example, Carbon 60, Inc. determines the prices to be charged for Carbon 60, Inc. Products and Services sold through the affiliate network in accordance with its own pricing policies. Prices and availability of Carbon 60, Inc. Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that Affiliate has listed on its Affiliate Site, Affiliate may or may not be able to include price information in its product descriptions. Carbon 60, Inc. Will use commercially reasonable efforts to present accurate information on its website, but Carbon 60, Inc. cannot guarantee the availability or price of any particular Carbon 60, Inc. Product or Service.
13.) E-mails and Publicity
Affiliate shall not create, publish, transmit or distribute, under any circumstances, any material, including but not limited to: bulk email messages (also known as “SPAM”), blogs, social media posts, online videos, or printed materials such as flyers, banners, brochures, etc., without prior written consent from Carbon 60, Inc., to be granted or denied in Carbon 60, Inc.’s sole discretion, in each instance. Additionally, Affiliate may only send emails containing a Carbon 60, Inc. affiliate link and or a message regarding Carbon 60, Inc. or Carbon 60, Inc.’s Affiliate Program to people who have previously consented to receiving such communications from Affiliate. Affiliate’s failure to abide by this Section 14, the CAN-SPAM Act of 2003, Carbon 60, Inc.’s Anti-Spam Policy, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by Affiliate and will result in the forfeiture by Affiliate of any and all rights Affiliate may have to any commissions and the termination of Affiliate’s participation in the Affiliate Program. Further, if Affiliate ‘s account has excessive clicks in a very short period of time as determined by Carbon 60, Inc. in its sole discretion, the Affiliate relationship may be terminated. For approval, email to: Affliates@C-60.com
14.) Licenses and Use of Carbon 60, Inc. Logos and Trademarks.
a.) Subject to the limitations set forth in Section 3 above and otherwise in this Agreement, Carbon 60, Inc. grants Affiliate a non-exclusive, non-transferable, revocable license to (i) access Carbon 60, Inc.‘s website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the Carbon 60, Inc. trademark and logo and similar identifying material provided by Carbon 60, Inc. (collectively, the “Licensed Materials”), for the sole purpose of selling Carbon 60, Inc. Products and Services on the Affiliate Site and as approved in advance by Carbon 60, Inc.. Affiliate may not alter, modify, or change the Licensed Materials in any way. Affiliate is only entitled to use the Licensed Materials while Affiliate is an Affiliate in good standing and in compliance with all of the terms of this Agreement.
b.) Affiliate shall not use the Licensed Materials for any purposes other than selling Carbon 60, Inc. Products and Services, without first submitting a sample to Carbon 60, Inc. and obtaining the express prior written consent of Carbon 60, Inc. in each instance. Affiliate shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays Carbon 60, Inc., any hosted member of Carbon 60, Inc. or any Carbon 60, Inc. employee or representative in a negative light. Carbon 60, Inc. reserves all of its rights in the Licensed Materials and Affiliate’s license to use such material is limited to the manner described herein. Carbon 60, Inc. may revoke Affiliate’s license at any time, by giving Affiliate written notice. If not previously revoked, this license shall immediately terminate upon the termination of Affiliate’s participation in the Affiliate Program.
c.) Affiliate grants to Carbon 60, Inc. a non-exclusive license to utilize Affiliate’s name, title, trademarks, and logos (the “Affiliate Trademarks”) in any advertisement or other materials used to promote Carbon 60, Inc. and the Affiliate Program, provided that Carbon 60, Inc.’s use of the Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of Affiliate’s participation in the Affiliate Program.
d.) Email all materials for approval to: Affiliates@C-60.com
15.) Term and Termination
a.) The term of this Agreement will begin upon full execution and delivery of this Agreement by the parties and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause, or any reason.
b.) Affiliate is only eligible to earn Commission Fees on Qualified Purchases occurring during the Term. Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related Carbon 60, Inc. Products and Services are not cancelled and comply with all of the terms of this Agreement. Carbon 60, Inc. may withhold Affiliate’s final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Carbon 60, Inc. in its sole discretion.
c.) Any Affiliate who violates this Agreement, Carbon 60, Inc.’s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Affiliate Program.
d.) Carbon 60, Inc. reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in Carbon 60, Inc.’s sole discretion.
Carbon 60, Inc. may modify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which Affiliate accepts and agrees to such modifications unless Affiliate otherwise agrees herein. Such modifications shall take effect when posted on Carbon 60, Inc.’s website. Modifications may include, but are not limited to, changes in the scope of available Commission Fees, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement, in which event Affiliate shall be entitled to its rights under the unmodified Agreement prior to the date of the applicable modification. Affiliate’s continued participation in the Affiliate Program following Carbon 60, Inc.’s posting of any modification on Carbon 60, Inc.’s website will constitute binding acceptance of the change.
Carbon 60, Inc. makes no express or implied warranties or representations with respect to the Affiliate Program or any Carbon 60, Inc. Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, Carbon 60, Inc. makes no representation that the operation of Carbon 60, Inc.’s website will be uninterrupted or error free, and Carbon 60, Inc. will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.
18.) Relationship of Parties
Affiliate and Carbon 60, Inc. are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on Carbon 60, Inc.‘s behalf. Affiliate will not make any statement, whether on the Affiliate Site or otherwise, that contradicts anything in this section.
19.) Representations and Warranties
Affiliate hereby represents and warrants to Carbon 60, Inc. as follows:
a.) Affiliate has reviewed and understands this Agreement and agree to be bound by its terms.
b.) Affiliate’s acceptance of this Agreement and participation in the Affiliate Program will not violate (i) any provision of law, rule, or regulation to which Affiliate is subject, (ii) any order, judgment, or decree applicable to Affiliate or binding upon Affiliate’s assets or properties, (iii) any provision of Affiliate’s by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties.
c.) Affiliate is the sole and exclusive owner of the Affiliate Trademarks and have the power to grant to Carbon 60, Inc. the license to use such marks in the manner contemplated herein, and such grant will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity.
d.) Affiliate is not required to obtain consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party in connection with Affiliate’s entrance into this Agreement.
e.) There is no pending or threatened claim, action, or proceeding against Affiliate, or any affiliate of Affiliate with respect to the Affiliate Trademarks, and, to the best of Affiliate’s knowledge, there is no basis for any such claim, action, or proceeding.
f.) During the Term, Affiliate will not include in its Affiliate Site content that is, in Carbon 60, Inc.’s opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of Carbon 60, Inc.’s Terms and Conditions or Acceptable Use Policy.
g.) Affiliate is at least eighteen (18) years of age.
h.) Each Referred Customer is valid, genuine, and unique and meets the criteria of a Qualified Purchase for generating a Commission Fee as provided in this Agreement.
20.) Limitation of Liability
CARBON 60, INC. WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF CARBON 60, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, CARBON 60, INC.’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
Affiliate hereby agrees to indemnify and hold harmless Carbon 60, Inc. and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (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 Carbon 60, Inc.’s use of the Affiliate Trademarks 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 and agreement made by Affiliate herein, or (iii) any claim related to the Affiliate Site, including, without limitation, its development, operation, maintenance and content therein not attributable to Carbon 60, Inc.
Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Carbon 60, Inc. and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
23.) Independent Investigation
Affiliate understands that Carbon 60, Inc. may at any time (directly or indirectly) solicit Carbon 60, Inc. relationships on terms that may differ from those contained in this Agreement. Carbon 60, Inc. may also solicit relationships with entities that operate websites that are similar to or compete with the Affiliate Site. Affiliate has independently evaluated the desirability of participating in the Carbon 60, Inc. Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
a.) Governing Law. The laws of the State of Colorado will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Jefferson County, Colorado and Affiliate irrevocably consent to the jurisdiction of such courts.
b.) Assignment. Affiliate may not assign this Agreement, by operation of law or otherwise, without Carbon 60, Inc.’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
c.) Waiver. Carbon 60, Inc.’s failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of Carbon 60, Inc.’s right to subsequently enforce such a provision or any other provision of this Agreement.