Affiliate Terms and Conditions
These terms and conditions (the “Agreement”) that follow shall govern your participation in the Nordivik Affiliate Marketing Program (the “Program”) being made available to you (the “Publisher”) by NH Resources Ltd., (“NH Resources”). By continuing to participate in the Program, you consent and agree to the following terms and conditions.
1. LICENSE. Solely for the term of your participation in the Program and for the purposes stated herein, NH Resources hereby grants to Publisher a limited, revocable, non-exclusive, non-transferable, royalty-free license to: (a) display and promote the products and services being made available by NH Resources (the “Campaign”) on the Publisher’s Internet web site (the “Publisher Site”) or on third party Internet web sites that are contracted by the Publisher to display and promote the Campaign (“Third Party Sites”)(hereinafter collectively, the “Services”); and (b) use and display the logos, trademarks and trade names, and any applicable advertising materials and advertising content (collectively, the “Advertising Materials”) for marketing and promotional purposes in connection with the Campaign, and subject to compliance with applicable written instructions and guidelines (as provided by NH Resources) in order to provide the Services. NH Resources retains the exclusive right, title and interest to the Advertising Materials provided to Publisher, and Publisher has no rights therein save the limited right to use the Advertising Materials pursuant to the terms hereof.
2. PAYMENT. Unless otherwise agreed upon by the parties in writing, NH Resources shall remit payment to Publisher on or before thirty (30) days following the calendar month in which the Services were performed. Undisputed and overdue payments will accrue interest at the lesser rate of eighteen (18%) percent per annum or the maximum rate permitted by law, calculated from the date upon which the invoice is due, compounded monthly. All amounts and currency shall mean United States dollars ($USD) unless otherwise indicated. Publisher shall be responsible for any and all costs, charges, expenses, and fees incurred as a result of its receipt of any payments under this Agreement.
3. RATES. The monthly invoice will be determined by the amount of completed actions counted by NH Resources, times the payment rate defined in the Campaign details. Rates and budget caps can be changed and updated via email notice. Any reduction in rates and/or budget caps shall take effect following no less than two (2) business day’s prior written notice to Publisher.
4. REPORTING. All payments to Publisher under this Agreement will be based solely on NH Resources reporting.
5. CANCELLATION. Each party reserves the right to cancel this Agreement at any time by providing the other party with no less than three (3) business days’ written notice. Notwithstanding the foregoing, NH Resources reserves the right to immediately cancel this Agreement or Publisher’s participation in the Program on written notice in the event that Publisher has violated any term or condition of this Agreement. Publisher acknowledges and agrees that any violation of the terms and conditions defined in this Agreement may result in the forfeiture of any and all accrued amounts payable to the Publisher. Payment, confidentiality, and indemnification obligations shall survive the termination of this Agreement.
6. CONFIDENTIALITY. Any confidential information and/or proprietary data provided by one party (“Discloser”) to the other party (“Recipient”), including certain information relating to the Discloser’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods or any information that, based on the circumstances under which it was disclosed, a reasonable person would treat as confidential shall be deemed “Confidential Information” of the Discloser. Confidential Information shall not, without first obtaining the Discloser’s written consent, be released by the Recipient to anyone except an employee or agent, or financial or legal advisor that has a need to know and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. The undertakings and obligations of each party under this Section 7 shall not apply, however, to any information which it can establish to have: (i) become publicly known through no action on the Recipient’s part; (ii) been known by the Recipient prior to receipt; (iii) been independently developed by the Recipient; (iv) been approved for public release by the other’s written authorization; or (v) been required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Discloser is notified immediately of such required disclosure and given the opportunity to seek a protective order. Following the termination of this Agreement, or otherwise on demand by the Discloser, the Recipient agrees that it will promptly return the Confidential Information to the Discloser, including all copies thereof or, if requested to do so by the Discloser, will certify the destruction of the Confidential Information. The provisions of this Confidentiality section shall survive the expiration or termination of the Agreement for a period of three (3) years.
7. REPRESENTATIONS/WARRANTIES. Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms. The Publisher further represents and warrants that the Publisher Site and Third Party Sites do not and will not (i) violate or encourage the violation of any third party copyright, trade-mark, trade secret or other intellectual property right, or any applicable law, rules or regulations; (ii) target children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess or participate in; (iii) contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, worm or other self-executing program; (iv) contain any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; or (v) otherwise violate any applicable law, rule or regulation, or any marketing and advertising guidelines, restrictions, or policies as defined in the applicable IO, or as otherwise communicated in advance to Publisher. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE PARTIES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER HEREUNDER, INCLUDING WITHOUT LIMITATION, PLACEMENT OF ADVERTISING AND ANY OTHER SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY PROMISE OF ANY LEVEL OF SUCCESS WITH RESPECT TO ANY CAMPAIGN OR INSERTION ORDER, IN PART OR WHOLE).
8. INDEMNIFICATION. Subject to the limitations expressed in this Agreement, each party shall indemnify, defend and hold harmless the other party and any officer, director, employee, parent company, subsidiary or affiliated company from and against any and all third party claims, actions, proceedings, suits, losses, costs, expenses, liabilities or damages, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought (collectively, the “Claims”) suffered or incurred by or arising from any breach by the indemnifying party of any of its representations, warranties and covenants under this Agreement. Each party’s obligation to indemnify the other Party is subject to: (i) the indemnified party giving prompt written notice to the indemnifying party in the event that it becomes aware of a Claim or the possibility of a Claim; (ii) the indemnified party giving full cooperation with the indemnifying party, at the indemnifying party’s expense, in responding to, defending or settling any such Claim; (iii) the indemnifying party keeping the indemnified party fully informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying party, including the decision to defend or not defend the Claim or complaint; (iv) the indemnified party giving the indemnifying party sole control of the defense of the Claim and that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claim, including the payment of any award of damages and/or costs to any third party, will be paid by indemnifying party provided that no settlement shall be entered into by the indemnifying party that imposes any legal or financial obligation on the indemnified party without the indemnified party’s prior written consent; and (v) the indemnified party not admitting any liability or entering into any settlement regarding the Claim on behalf of the indemnifying party. Notwithstanding the foregoing, the parties further agree that the indemnified party may elect to participate, at its sole cost and expense, as a party in any litigation involving the Claim to the extent that the court may permit.
9. LIMITATION OF LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR THE BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS (INCLUDING WITHOUT LIMITATION CLAIMS FOR LOSS OF GOODWILL, USE OF OR RELIANCE ON THE SERVICES PROVIDED HEREUNDER, INTERRUPTION OF BUSINESS OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY.
10. RELATIONSHIP OF THE PARTIES. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever. This Agreement is not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under, or by reason of, this Agreement.
11. FORCE MAJEURE. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
12. GENERAL. This Agreement will be interpreted, construed and governed exclusively in all respects in accordance with the laws of the Province of British Columbia, Canada, excluding its conflict of law rules and the United Nations Convention on Contracts for the Sale of International Goods. The Publisher agrees and irrevocably attorns and submits to the exclusive jurisdiction of the courts of Victoria, British Columbia with respect to any and all disputes, legal action and proceedings arising as a direct or indirect consequence of this Agreement, and expressly and irrevocably waives any defense of personal and/or subject matter jurisdiction in those courts or any claim on the grounds of forum non conveniens. Neither party will assign the Agreement without the express written consent of the other, except that either Party shall have the right to assign this Agreement and the obligations hereunder to any affiliate or to any successor of such party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning party relating to the Agreement, provided that: (a) the assigning party provides the other party with written notice when such transaction in completed or becomes public; (b) the successor or assignee agrees in writing to be bound by the obligations set forth herein and is capable of performing its duties under the Agreement; and (c) the assigning party is not in material breach or default of this Agreement at the time of the assignment. No term or condition of this Agreement will be deemed amended or waived, and no breach excused, unless such amendment, waiver or consent excusing the breach is in writing and signed by both parties. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter. In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction then this Agreement with respect to the remaining terms, covenants or conditions will continue in force. Any notice or other communication (“Notice”) permitted or required in the Agreement will be in writing and given by personal delivery via courier or transmitted by facsimile or electronic mail to the receiving party at the address noted on the Agreement. Any such Notice will be deemed to have been received on the date on which it was transmitted by electronic mail, facsimile, or delivered. This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of the parties. This Agreement may be executed in any number of counterparts, each of which when delivered shall be deemed to be an original and all of which together shall constitute one and the same document. A digital, electronic or facsimile copy shall be deemed to be an original copy of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Campaign(s) noted in the Agreement and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.