Kovo Affiliate Agreement
THIS AGREEMENT (the “Agreement”) is entered into the date Affiliate indicates the acceptance of this Agreement as referenced in Impact, by and between Kovo Inc., a Delaware public benefit corporation (“Kovo”), and Partner herein referred to as ("Affiliate"). Kovo and Affiliate are hereinafter referred to collectively as the (“Parties”) or each a (“Party”).
Recitals
1. Purpose.
Kovo desires Affiliate to market and promote Kovo’s products and services and provide a referral in exchange for a fee where applicable (the “Purpose”).
2. Promotional Activities.
Kovo will provide Affiliate with personalized links to Kovo’s website and content. Affiliate will use such personalized links to promote Kovo’s website and content (the “Promotional Activities”).
3. Referral Compensation.
Kovo shall pay Affiliate Referral Compensation per customer that signs up for the Kovo product referred to Kovo’s platform through Affiliate’s personalized links (“Compensation”). The Compensation associated with a particular referred customer will be earned and payable after the customer meets the “Qualifying Event” criteria and only if the customer has not returned the product. All tracking and payment processing in relation to the tracking of actions and qualifying parameters that entitle Affiliate to Compensation from Kovo, and calculation of Compensation totals, shall be provided by Impact Radius, Inc. (“Impact”). Qualifying Event criteria and Compensation are defined in Impact. Impact shall aggregate payments due from Kovo to Affiliate in accordance with this Agreement. Affiliate shall be responsible for the payment of any taxes due for the receipt of the Compensation. Compensation can be reversed or charged back if it is determined that the Qualifying Event was completed through a fraudulent or non-bona fide manner.
4. Term.
This Agreement shall be effective during the Term and shall continue unless either Party terminates. If either Party materially breaches this Agreement, the other Party may terminate this Agreement by giving the breaching Party fifteen (15) days written notice of such breach, unless the breach is cured within the notice period. Either Party may terminate this agreement for convenience upon thirty (30) days written notice to the other Party, in which case Kovo will pay Affiliate any undisputed Compensation Affiliate has earned as of the date such notice is provided. Section 7, 8, and 9 will survive any expiration or termination of this Agreement.
5. Trademark License.
Subject to the terms and conditions of this Affiliate Agreement, each Party hereby grants to the other Party a worldwide, non-exclusive, revocable, non-transferable, royalty-free license, without the right to sublicense, to use the trademarks, service marks, names, logos, insignias, trade dress and other proprietary trade designations protected by law (“Marks”) supplied by such Party to the other Party in carry out the Purpose of this Affiliate Agreement. Each Party agrees to state on all materials using the Marks that such Marks are trademarks of the other Party and to include the appropriate trademark symbol where applicable.
6. Proprietary Rights.
Affiliate acknowledges that the products, services, Marks, documentation and all information, including but not limited to all patent, copyright, trade secret, trademark, and other associated proprietary rights, and data that Affiliate collects through its promotion and marketing of the products and services is proprietary to Kovo, (collectively, “Proprietary Information”). No title or ownership of Kovo’s Proprietary Information (including any derivative work) is transferred or assigned hereunder. Affiliate agrees not to take any action inconsistent with Kovo’s ownership of the Proprietary Information or assist any third party in doing the same.
7. Confidentiality.
7.1 Each Party acknowledges that it may, in connection with this Affiliate Agreement, make certain non-public information with respect to its respective business available to the other Party, including but not limited to, trade secrets, know how, software programs, performance metrics, research and development, sales and customer information, business and financial information relating to the products, practices and techniques of the disclosing Party, customer and prospect lists, and “nonpublic personal information (NPI),” as defined in § 509 of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6809, and implementing regulations thereof (collectively, the “Confidential Information”).
7.2 Each Party agrees to hold such Confidential Information of the other Party in strict confidence and protect it in the same manner in which it protects its own Confidential Information, but with no less than reasonable care. Each Party agrees not to disclose any Confidential Information to any third party, provided that a Party may disclose such Confidential Information to its employees, contractors, or agents who have a need to know such information and only to such extent, provided that each such person or entity is bound by a written nondisclosure agreement containing confidentiality obligations no less restrictive than those set forth in this Affiliate Agreement. Each Party will be liable for any misuse, misappropriation or improper disclosure of the other Party’s Confidential Information.
7.3 The foregoing shall not apply with respect to any information that (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving Party; (ii) was rightfully known to the receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing Party; (iv) was independently developed by the receiving Party without any use of the Confidential Information; (v) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party, without breach of any Agreement,; or (vi) is disclosed generally to third Parties by the disclosing Party without restrictions similar to those contained in this Agreement.
7.4 Upon termination, Affiliate will promptly return or destroy all items and copies containing or embodying Confidential Information except as required by record retention provisions of applicable law, rule or regulation.
8. Information Security.
Affiliate shall, with respect to all systems, applications, networks or sites used by Affiliate in accessing, processing, or storing Confidential Information, comply with commercially reasonable industry information security standards in compliance with applicable laws. If Affiliate suffers an “Electronic Incident” defined as unauthorized access which, if successfully complete, would reasonably be considered an attack, penetration, denial of service, or disclosure of confidential information, Affiliate shall provide the following information to Kovo through electronic notice: (i) nature and impact of the Electronic Incident; (ii) actions already taken; (iii) assessment of immediate risk; and (iv) proposed corrective measures, including an evaluation of alternatives and next steps.
9. Warranties.
9.1 Affiliate represents, warrants and agrees: (a) Affiliate has all rights necessary to perform it obligations under this Agreement and this Agreement does not conflict with any obligation Affiliate has to any third party, (b) Affiliate shall not knowingly take any action which would reasonably be expected to harm Kovo or its reputation; and (c) Affiliate shall comply with all applicable laws and other policies in the course of performing the Promotional Activities.
9.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
10. Certain Remedies for Breach.
Any breach of this Agreement by Affiliate will cause irreparable harm to Kovo for which damages would not be an adequate remedy and, therefore, Affiliate agrees Kovo will be entitled to all equitable remedies available under the law with respect thereto, in addition to any other available remedies. If Affiliate breaches any of its representations, warranties, covenants or other obligations in this Agreement, Kovo may withhold any amounts due to Affiliate and/or offset such amounts due against Affiliate’s damages resulting from such breaches.
11. Indemnity.
Affiliate agrees to defend, indemnify, and hold harmless Kovo and its subsidiaries, affiliated companies, employees, contractors, officers, and directors against any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses (including, without limitation, reasonable attorneys' fees) that arise from their violation of this Agreement, applicable law, or any third-party rights or their fraud or willful misconduct. The indemnified Party shall give written notice to the indemnifying Party promptly after learning of such claim, tender the defense and settlement of the claim to the indemnifying Party, and provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s reasonable expense, in connection with the defense and settlement of such claim. The indemnifying party agrees to promptly pay and fully satisfy any and all losses, judgements, or expenses incurred or sustained arising from the violations described above.
12. Limitation of Liability.
EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES; OR (II) ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID TO AFFILIATE OVER THE SIX (6) MONTHS PRECEDING THE CLAIM(S).
13. Notices.
All notices and other communications shall be in writing and shall be sent by e-mail transmission to the following addresses:
If to Kovo
Attn: Legal Department
Email: legal@kovocredit.com
If to Affiliate
Email: Email provided by affiliate within Impact
14. Severability.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objective of such provision within the limits of applicable law or applicable court decisions.
15. SEM Bidding.
Affiliate is prohibited from all paid search.
16. Code of Conduct.
Affiliate will adhere to the most current version of the Affiliate Marketing Guidelines. Affiliate will also not engage in fraudulent activity or abuse of the Affiliate program. Kovo in its sole discretion reserves the right to reverse Compensation on a specific transaction or terminate this Agreement as well as of the other remedies set forth in Section 10 if it determines that there is fraud, abuse, or a violation of the law or this Agreement.
17. Miscellaneous.
For all purposes under this Agreement each Party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of Delaware, without regard to the conflicts of law provisions thereof. Affiliate may not assign or transfer any of its rights or obligations under this Agreement without Kovo’s prior written consent. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both Parties. The Parties agree that this Agreement may be signed by manually or through the use of electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS, ACCEPTS AND AGREES TO THE OBLIGATIONS WHICH IT IMPOSES UPON SUCH PARTY WITHOUT RESERVATION.