1.1 This ”Affiliate Agreement” together with Schedule 1 (collectively the “Agreement”) is between you, hereinafter referred to as “Affiliate” and/or “Professional” (each a “Participant”) to utilize the platform currently located at partners.blusbest.com
1.2 The Participants shall agree to specific terms of engagement in individual “Electronic Order(s)” (“EO”). EOs will abide by BLU's public terms application and conditions agreed between the Participants and BLU's Account Managers. BLU may act a facilitator in the relationships with third party purchasing organizations but will only be responsible for the terms outlined by our public terms campaigns. Any third party terms must be agreed upon by the BLU account management team before entering an agreement with our partners.
2. Affiliate Partnership Agreement
2.1 The Participants acknowledge and agree that both parties have full capabilities to decline, retract or further modify the affiliate agreement before acceptance.
3. Term and Termination
3.1 Each partnership shall continue until: (a) the expiration of the affiliate agreement; or (b) a Participant terminating the affiliate agreement via the terms of the Agreement.
3.2 Consequences of Termination: On the expiration or earlier termination:
(a) BLU shall refund the Advertiser any monies, if any, in relation to unfulfilled invoices that the affiliates may have on their partner portal
(b) BLU shall remain obligated to compensate the affiliates for Payouts earned prior to the expiration or termination
(c) the affiliate shall immediately discontinue the use of any materials provided by BLU (the “Creative”);
(d) license to the Creative shall terminate; and
(e)each Participant shall either destroy or promptly return to the other Participant all copies in whatever medium of the other’s Confidential Information.
4. Intellectual Property and Confidential Information
4.1 License. Pursuant to the terms herein, BLU grants to the Affiliate for the duration of each agreement a revocable, non‑exclusive, non-transferable, world-wide, royalty-free license to use the Creative solely to the extent necessary to perform its obligations herein.
4.2 Promotional Methods. Unless explicitly authorized in the agreement, the affiliate or third party sales channels shall not promote a Creative using the following means:
(a) provision of leads obtained other than through intended consumer (“End User”) action (e.g. through the use of phone books, or similar such compilations of personal data);
(b) use of fake redirects, automated software, or other mechanisms to generate Actions;
(c) Actions that are not in good faith, such as those using any automated device, robot, Iframes or hidden frames; or
(d) the use of incentives to procure Actions from End Users.
4.3 Intellectual Property: “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in Confidential Information and all other intellectual property rights (whether now subsisting or in the future created). All Intellectual Property existing prior to the commencement date of each agreement shall belong to the Participant that owned such rights immediately prior to such date. Each Participant acknowledges and agrees that it shall not acquire or claim any title to the other Participant’s Intellectual Property.
4.4 Confidential Information. "Confidential Information" means all confidential information and data, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A Participant receiving Confidential Information ("Receiving Party") from the other Participant ("Disclosing Party") agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the Receiving Party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to the Receiving Party, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Participant in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each Participant shall bear its own legal expenses in connection therewith
5. Representations, Disclaimers and Indemnification
5.1 Representations and Warranties:
(a) Each Participant warrants, represents and undertakes that:
(i) it has the full power and authority to carry out its obligations in the Agreement;
(ii) its entry into and performance of its obligations under the Agreement shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party;
(iii) it shall comply fully with any and all applicable laws, rules and regulations in its performance under the Agreement.
5.2 Indemnification: Each Participant ("Indemnitor") shall defend, indemnify and hold the other Participant and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
5.3 Limitations of Liability:
(a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or limited under law (together the "Excluded Losses").
(b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement and each EIO shall be limited to the Payouts fees paid by Advertiser to Media Partner through Impact pursuant to EIOs.
(c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.
6. Electronic Signatures: Each party acknowledges and agrees that by clicking-through acceptance of this Agreement; it is submitting an authorized electronic signature and entering into a legally binding contract. Further, each party hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
6.1 Severability: If any provision in this Agreement, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
6.2 Relationship of the Parties: This Agreement does not create any association, partnership, joint venture or agency relationship between either the affiliate and BLU. Neither Participant shall have the power to bind the other or to create a liability against the other in any way.