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Welcome to TargetBay’s website for creators (the “Creators Site”), where you can manage your affiliate marketing relationship with the relevant TargetBay entities as set forth in Schedule 1 (“TargetBay” or “us” or similar terms).
Any person or entity that participates or attempts to participate in our associate marketing program (the “Creators Program” and such person or entity, “you”, or an “Associate”) must accept this Creators Program Operating Agreement (this “Agreement”) without change. By registering for or using the Creators Site, you agree to this Agreement, including the Program Policies (defined in Section 12), which are incorporated by reference (for example, our Creators Program Participation Requirements, Creators Program IP License, Creators Program Commission Income Statement, and Creators Program Trademark Guidelines.) Please read them carefully.
The Creators Program permits you to monetize your video content with our eCommerce clients in two ways:
By placing an affiliate link on any of your sites or channels to drive traffic to our TargetBay merchant clients.
By allowing us to show your content and/or videos on our merchant client’s product pages
In scenario “a” you will be paid a 3-8% commission depending on the product category when your site visitor clicks the link and then buys the product within 5 days. In scenario “b” you will be paid a 1-2% commission when our merchants’ visitors watch your video and then buy the product represented in the video.
The links must properly use the special “tagged” link formats we provide and comply with this Agreement (“Special Links”).
When our customers click through or engage with the Special Links to purchase an item sold or services offered on the TargetBay Merchant’s Site or take other actions, you can receive commission income for qualifying purchases, as further described in (and subject to the limitations in) the Creators Program Commission Income Statement. In order to facilitate your advertisement of these items or services, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the Creators Program (“Program Content”).
You must comply with this Agreement to participate in the Creators Program and receive commission income.
You must promptly provide us with any information that we request to verify your compliance with this Agreement.
If you violate this Agreement, or if you violate terms and conditions of any other applicable TargetBay marketing agreement, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) cease payment of (and you agree you will not be eligible to receive) any and all commission income otherwise payable to you under this Agreement, whether or not directly related to such violation without notice and without prejudice to any right of TargetBay to recover damages in excess of this amount.
Our customers are not, by virtue of your participation in the Creators Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the TargetBay’s merchant customers’ Sites will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our clients customers, and, if contacted by any of our clients customers for a matter relating to interaction with our clients’ Sites, you will state that those customers must follow contact directions on that client Site to address customer service issues.
You represent, warrant, and covenant that (a) you will participate in the Creators Program and create, maintain, and operate your Site in accordance with this Agreement, (b) neither your participation in the Creators Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Creators Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) you will not participate in the Creators Program or use any other Service Offerings if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using any Service Offering; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Creators Program is accurate and complete at all times. You can update your information by logging into your account on the Creators Site and selecting “Account Settings”.
We do not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the Creators Program, and we will not be liable for any actions you undertake based on your expectations.
You represent, warrant, and covenant that (a) you will participate in the Creators Program and create, maintain, and operate your Site in accordance with this Agreement, (b) neither your participation in the Creators Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Creators Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) you will not participate in the Creators Program or use any other Service Offerings if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using any Service Offering; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Creators Program is accurate and complete at all times. You can update your information by logging into your account on the Creators Site and selecting “Account Settings”.
We do not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the Creators Program, and we will not be liable for any actions you undertake based on your expectations.
The term of this Agreement will begin upon your registration for or use of the Creators Site. Either you or we may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written or email notice to (creators@targetbay.com) of termination provided that the effective date of such termination will be 7 calendar days from the date notice is provided. In addition you can provide termination notice by logging into your account on the Creators Site and selecting the option to close your account in “Account Settings”. In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following: (a) you are in material breach of this Agreement, (b) you otherwise fail to cure within 7 days of our notice to you regarding any other breach of this Agreement (including any Program Policy); (c) we believe that we may face potential claims or liability in connection with your participation in the Creators Program; (d) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Creators Program; (e) your participation in the Creators Program has been used for deceptive, fraudulent or illegal activity; (f) we believe that we are or may become subject to tax collection requirements in connection with this Agreement or the activities performed by either party under this Agreement; (g) we have previously terminated this Agreement (or suspended your account) with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (h) we have terminated the Creators Program as we generally make it available to participants. For the avoidance of doubt and without limitation for purposes of the foregoing subsection (a) any violation of Section 5 and as specified in the Program Policies will be deemed a material breach of this Agreement.
We may hold accrued unpaid commission income for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancelations or returns).
Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 3, 4, 5, 6, 7, 8, 10, and 11 of this Agreement and as specified in the Program Policies, together with any payable but unpaid payment obligations under this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
The creators program, the targetbay site, any products and services offered on the targetbay cclient’s site, any special links, link formats, content, the product advertising api, data feed, product advertising content, our and our affiliates’ domain names, trademarks and logos (including the targetbay marks), and all technology, software, functions, materials, data, images, text, and other intellectual property rights, information and content provided or used by or on behalf of us or our affiliates or licensors in connection with the creators program (collectively the “service offerings”) are provided “as is” and “as available”. neither we nor any of our affiliates or licensors make any representation or warranty of any kind, whether express, implied, statutory, or otherwise, with respect to the service offerings. we and our affiliates and licensors disclaim all warranties with respect to the service offerings, including any implied warranties of title, merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement and any warranties arising out of any law, custom, course of dealing, performance, or trade usage. we may discontinue any service offering, or may change the nature, features, functions, scope, or operation of any service offering, at any time and from time to time. neither we nor any of our affiliates or licensors warrant that the service offerings will continue to be provided, will function as described, consistently or in any particular manner, or will be uninterrupted, accurate, error free, or free of harmful components. neither we nor any of our affiliates or licensors will be responsible for (a) any errors, inaccuracies, viruses, malicious software, or service interruptions, including power outages or system failures or (b) any unauthorized access to or alteration of, or deletion, destruction, damage, or loss of, your site or any data, images, text, or other information or content. no advice or information obtained by you from us or from any other person or entity or through the service offerings will create any warranty not expressly stated in this agreement. further, neither we nor any of our affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with (x) any loss of prospective profits or revenue, anticipated sales, goodwill, or other benefits, (y) any investments, expenditures, or commitments by you in connection with your participation in the creators program, or (z) any termination or suspension of your participation in the creators program. nothing in this section 7 will operate to exclude or limit warranties, liabilities, or representations that cannot be excluded or limited under applicable law.
Neither we nor any of our affiliates or licensors will be liable for indirect, incidental, special, consequential, exemplary damages, or any loss of revenue, profits, goodwill, use, or data arising in connection with the service offerings, even if we have been advised of the possibility of those damages. further, our aggregate liability arising in connection with the service offerings will not exceed the total commission income paid or payable to you under this agreement in the twelve months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred. you hereby waive any right or remedy in equity, including the right to seek specific performance, injunctive or other equitable relief in connection with this agreement. nothing in this paragraph will operate to limit liabilities that cannot be limited under applicable law.
Any dispute relating in any way to the Creators Program or this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates will be subject to the governing law and disputes provision for the applicable TargetBay Site set forth on Schedule 2.
We may send you emails relating to the Creators Program from time to time. In addition we may (a) monitor, record, use, and disclose information about your Site and users of your Site that we obtain in connection with your display of Special Links and Program Content (for example, that a particular TargetBay client customer clicked through a Special Link from your Site before buying a product on the TargetBay client Site),(b) review, monitor, crawl, and otherwise investigate your Site to verify compliance with this Agreement, and (c) use, reproduce, distribute, and display your logo and implementation of Program Content displayed on your Site as examples of best practices in our educational materials. For information on how we process personal information, please see the relevant TargetBay Privacy Notice as set forth in Schedule 4.
You acknowledge and agree that (a) we and our affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) we and our affiliates may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. 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.
This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in this Agreement and any other policies that apply to tools, subprograms, and features made available to you under the Creators Program (“Program Policies”), including any updates of the Program Policies from time to time. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control. In the event of a conflict between this Agreement and your agreement with an TargetBay affiliate under a separate affiliate marketing program that agreement will control with respect to such separate program. This Agreement (including the Program Policies) is the entire agreement between you and us regarding the Creators Program and supersedes all prior agreements and discussions.
Whenever used in this Agreement, the terms “include(s)”, “including”, and “for example” are used and intended without limitation.
Any information relating to TargetBay or any of its affiliates that we provide or make accessible to you in connection with the Creators Program that is not known to the general public or that reasonably should be considered to be confidential is TargetBay’s “Confidential Information” and will remain TargetBay’s exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement and ensure that all persons or entities who have access to Confidential Information in connection with your account will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties and will apply for the term of the Agreement and 5 years after termination.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.
Notwithstanding anything to the contrary herein, nothing in this Agreement will, or will be interpreted or construed to, induce or require any party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules or requirements that apply to any party to this Agreement.
Schedule 1: TargetBay Entity and TargetBay Site by Location
Schedule 2: Governing Law and Disputes by TargetBay Site
Schedule 3: Tax Provision by TargetBay Site
Schedule 4: Privacy Notice by TargetBay Site
TargetBay Site
TargetBay.com
Any dispute relating in any way to the Creators Program or this Agreement will be resolved by binding arbitration, rather than in court, except that either party may elect to proceed in small claims court if the claims qualify under applicable law. The Federal Arbitration Act and federal arbitration law and the laws of the state of Georgia, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
Before you may begin an arbitration proceeding, you must send a letter notifying us of your intent to pursue arbitration and describing your claim to: Attn: Legal Dept, TargetBay Inc. 7000 Central Pkwy, Ste 220, Atlanta GA 30328. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Commercial Fee Schedule. You and we each agree that the underlying award in arbitration may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules.
You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial and agree that any such claim may proceed only in state or federal court in Dekalb County, Georgia.
Notwithstanding anything to the contrary in this Agreement, you and we each agree that either party may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property. You further acknowledge and agree that our rights in the Program Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
TargetBay Site Tax Provision
TargetBay.com We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under the Creators Program. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold your commission income until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
TargetBay Site Privacy Notice
TargetBay.com TargetBay.com Privacy Notice
Company
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