This Affiliate Agreement (“Agreement”) is between SimpliBuzz, LLC, an Arizona limited liability company (“SimpliBuzz”), and the individual or legal entity submitting an application to participate in the Affiliate Program (the “Affiliate”, “you”, or “your”). For purposes of this Agreement, each of you and SimpliBuzz will be referred to as a “Party” and, collectively, as the “Parties”.
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT AND THE TERMS OF SERVICE. You confirm that all information you provide in connection with the Affiliate Program is accurate, complete, and is either owned by you or within your rights to use. If you are entering into this Agreement on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you,” “your” or related terms herein shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by this Agreement or the Terms of Service, you may not participate in the Affiliate Program or otherwise access or utilize the Services. You acknowledge that this Agreement and the Terms of Service governs your participation in the Affiliate Program.
The following terms have the following meanings:
Affiliate shall be an individual person or legal entity, registered with SimpliBuzz, that participates in the Affiliate Program.
Affiliate Link means the unique referral (tracking) link you place on your digital media (e.g. website, blog, social media page, emails etc.) the Services through any other channels.
Affiliate Program means the display of the Services on a third-party website or any other means of digital media, using an Affiliate Link, in exchange for receiving a commission from SimpliBuzz for sales directly resulting from any such display.
Commission Threshold means Commissions greater than or equal to $50.00 for each month during the Term.
Terms of Service means the terms and conditions for use of the Services found at https://www.SimpliBuzz.com/terms-conditions/.
Services means all software, applications or application plug-ins, features, functionality, and content provided through https://www.SimpliBuzz.com; provided, however, for purposes of this Agreement, the Services shall not include any software, applications or applications plug-ins, features, functionality, or content provided through any other means, including, without limitation, SimpliBuzz’s mobile applications.
You will not be charged for your participation in the Affiliate Program. Subject to your compliance with your obligations under this Agreement, SimpliBuzz will provide you with a user account to enable your access to the Services during the Term (defined below).
You agree that: (1) you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and SimpliBuzz or any of its affiliated companies; (2) you will have no authority to make or accept any offers or representations on behalf of SimpliBuzz; and (3) this Agreement does not create an exclusive relationship between any of the Parties.
SimpliBuzz reserves the right to modify, suspend, or cease rendering the Services, or any component thereof, at any time and for any or no reason.
Customers who purchase Services through the Affiliate Program will be deemed to be SimpliBuzz customers. The Terms of Service and other SimpliBuzz rules, policies, and operating procedures will apply to all such Customers. SimpliBuzz further reserves the right to change our policies, pricing, and operating procedures at any time.
SimpliBuzz may use third-party services in connection with the Affiliate Program. By applying and joining the Affiliate Program, you may be required to agree to separate agreements with such third parties, including, without limitation, account registration, and terms of service, privacy policies, or similar documents.
ENROLLMENT IN THE AFFILIATE PROGRAM
To begin the enrollment process, you must first submit a completed Affiliate Program registration form. You agree that the information provided to SimpliBuzz is accurate and that you will keep all such information current at all times. SimpliBuzz will evaluate your application and will notify you of your acceptance or rejection into the Affiliate Program. SimpliBuzz reserves the right to reject any Affiliate application for any or no reason, including, without limitation, if, in the opinion of SimpliBuzz, your website or other promotional channels are not suitable for the Affiliate Program. SimpliBuzz reserves the right to terminate your participation in the Affiliate Program, at any time and for any or no reason.
Once you are accepted into the Affiliate Program, you will receive a unique Affiliate Link which you will use to promote the Services. When a user clicks through this Affiliate Link, a cookie (or similar tracking technology) will be set in their browser. In order to receive proper credit for sales, a person or entity must purchase through your unique Affiliate Link. During that visit or any later visit, when a purchase is made, SimpliBuzz will attribute the commission based on the existence of the cookie (or similar tracking technology) and successful unique Affiliate link tracking. If the user is employing any action or technology that prevents us from tracking the use of your Affiliate Link, then you will not be entitled to any commission from that user. You agree that SimpliBuzz is not responsible for (i) adblocking or cookie disabling technology or any other action by a user which prevents sufficient tracking, as determined by SimpliBuzz in its sole and absolute discretion or (ii) your actions which prevent sufficient tracking, as determined by SimpliBuzz in its sole and absolute discretion.
SimpliBuzz requires that you provide and maintain a primary email address in connection with your Affiliate profile. You may not use an email address with an auto-responder. You consent to receive communications from SimpliBuzz and/or third-party providers by email or through the Affiliate portal. You understand that you may not opt out of receiving such electronic communications from SimpliBuzz and that you must continually maintain a valid email account on file or SimpliBuzz may immediately terminate your participation in the Affiliate Program.
When performing your obligations under this Agreement, you agree:
- to comply, at all times, with all applicable laws and regulations, including but not limited to laws regarding advertising and data privacy;
- that you will be solely responsible for:
- maintaining the confidentiality of your Affiliate account and password;
- all activities that occur in connection with your Affiliate account;
- the development, operation, and maintenance of your digital media and content, information, advertisements, promotions and other items, whether appearing on your website, a third-party website, in social media or other digital media (collectively, “Affiliate Materials”);
- ensuring that the Affiliate Materials:
- are not libelous or otherwise illegal, are not obscene, pornographic, vulgar, offensive, discriminatory, or profane; and
- do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights) and that any information and data collected by you or by third parties on your behalf is collected and used in compliance with applicable privacy laws.
- to immediately notify SimpliBuzz at firstname.lastname@example.org if you: (i) have reason to believe that your Affiliate account is no longer secure; (ii) become aware of any violation or suspected violation of SimpliBuzz’s intellectual property rights or interests under this Agreement; and (iii) receive a third-party action, demand, claim, or complaint related to the subject matter of this Agreement;
- to act in good faith while performing your obligations under this Agreement;
- that you will not engage in any false or deceptive trade practices, including making any statements about the Services or the Affiliate Program, that are false or misleading;
- that your participation in the Affiliate Program and the display of Affiliate Link does not violate any agreement between you and any third-party; and
- to use the SimpliBuzz Trademarks (as defined below) in accordance with the requirements of this Agreement.
You agree that you will not:
- use the SimpliBuzz name (including any derivation or abbreviation thereof) in the originating email address “from” or “subject” line of any email transmission, without the express prior written consent of SimpliBuzz, or use falsified sender information or IP addresses;
- send any email which fails to contain a conspicuous unsubscribe mechanism;
- send out the Affiliate Link by means of unsolicited promotional email (including, without limitation, spam delivery or publication of spam on online forums, comment sections, and communities, etc.);
- place the Affiliate Link or advertising on any digital media containing illegal or inappropriate content;
- employ any misleading or deceitful practices in connection with your activities as an Affiliate, including:
- directly or indirectly engage in any unfair, unethical, misleading or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of SimpliBuzz or its Services, including any dissemination, display, or use of any false, misleading or deceptive representations, depictions or materials for or in connection with any advertising, promotion, or marketing of the Services; or
- perform any actions which may harm or negatively impact to the image of SimpliBuzz products and Services, or business image and goodwill of SimpliBuzz, reduce the level of trust, or misinform potential Customers/Users regarding the activity of SimpliBuzz.
- take any actions designed to impair the working capacity of the Services or SimpliBuzz servers, including, without limitation, any efforts to circumvent security measures, to use software viruses, Trojan horse, other malicious programs for any own purposes whatsoever, to use brute force attacks, DoS (DdoS) attacks, unsolicited promotional emails, links and any other processes.
COMMISSION DETERMINATION AND PAYMENT
You will be entitled to receive Commissions (defined below) from SimpliBuzz based upon users tracked through your Affiliate Link purchasing our Services.
Except for the Commissions, you agree that you shall have no right to the reimbursement of expenses incurred for the use of third-party services, programs, or services, even if these expenses were associated with your advertising activities as a part of the Affiliate Program, and will not be entitled to any other payments in connection with the Affiliate Program.
Your right to receive a Commission will, at all times, be subject to the following conditions:
- Your compliance with the terms and conditions of this Agreement;
- The user being approved and confirmed by SimpliBuzz, in its sole and absolute discretion; and
- Your provision and maintenance of accurate and complete documentation and information necessary to facilitate payments of the Commissions, as may be determined and requested by SimpliBuzz from time-to-time, in its sole and absolute discretion.
SimpliBuzz, in its sole and absolute discretion, reserves the right to modify the Commission structure, payment methods, or payment schedule used in connection with the Affiliate Program at any time.
SimpliBuzz shall pay you Commissions equal to 10% of the aggregate monthly amounts actually collected by SimpliBuzz which are attributable to Services purchased through your Affiliate Link, as determined by SimpliBuzz in its sole and absolute discretion (each, a “Commission”). SimpliBuzz will provide you with monthly reports detailing the Commissions owed for the previous month (each, a “Report”). Each Report will provide you with sufficient information, including, without limitation, the Services purchased through your Affiliate Link, for you to confirm the Commissions owed. Payments of the Commissions will terminate upon the earlier to occur of: (i) a user terminating their use of the Services; or (ii) either Party terminating this Agreement in accordance with the requirements set forth below. Notwithstanding the foregoing, SimpliBuzz reserves the right to offer different terms to its respective affiliates and other contractors as well as provide certain promotions and incentives, in its sole and absolute discretion.
You agree to create and maintain during the Term an account with SimpliBuzz’s then-current thirdparty payment processor, as designated by SimpliBuzz within the Services (the “Payment Processor”), and link your bank account through such Payment Processor. Failure to effectively link your bank account may result in delays in payment of Commissions. You hereby authorize SimpliBuzz to use that account to pay any Commissions owed to you under this Agreement. You further agree to immediately update your bank account information in the event that there is any change that may affect your obligations under this Agreement.
SimpliBuzz will make Commission payments to you on or before the fifteenth (15th) day of each month during the Term for Commissions earned during the previous month. You acknowledge and agree that: (a) you are entitled to no other compensation or reimbursement from SimpliBuzz or its affiliates other than the Commissions; (b) SimpliBuzz is not responsible for any delays resulting from the Payment Processor which are beyond SimpliBuzz’s control; (c) SimpliBuzz may offer different terms to different contractors in its sole and absolute discretion; (d) the Commissions will not include any withholdings or deductions of taxes and all payments made by SimpliBuzz to you will be made on a 1099 basis; and (e) all determinations of the eligibility of a transaction for Commissions will be made by SimpliBuzz in its sole and absolute discretion.
You will not receive a Commission if: (i) a user’s payment fails for any reason; (ii) the purchase was made by the violation of this Agreement; (iii) this Agreement has been terminated or your Affiliate account has been blocked or terminated; or (iv) you have not submitted all required information. Further, you agree that you will be solely responsible for any applicable transaction and processing fees incurred in connection with payments of Commissions which do not exceed the Commission Threshold and hereby authorize SimpliBuzz to offset any Commissions owed by such amounts.
SimpliBuzz reserves the right to delay payment of any Commission that is potentially fraudulent, as determined by SimpliBuzz, in its sole and absolute discretion, for a period sufficient to determine the legitimacy of the underlying transaction. SimpliBuzz reserves the right to withhold or cancel the payment of Commissions 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. SimpliBuzz reserves the right to offset from your current and future Commissions any and all amounts corresponding to any fraudulent or cancelled purchases. If you have a question about Commissions that have been cancelled or withheld, you have thirty (30) days from the day the payment would have been due to contact SimpliBuzz to request that the Commissions be paid.
You are an independent contractor. Neither you nor any person or entity acting on your behalf will be deemed to be acting as an employee of SimpliBuzz for any purpose whatsoever. You are solely responsible for the conduct and control of your performance under this Agreement. SimpliBuzz will not be responsible for determining your work routine, work schedule, or the amount of time you spend on performing your obligations under this Agreement. Except as otherwise provided in this Agreement: (i) you will be solely responsible for all taxes, unemployment or workers compensation, or any other insurance, and you will be responsible for any withholding which is required to be paid or made on all sums paid to you under this Agreement; (ii) you will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by SimpliBuzz to its employees; and (iii) SimpliBuzz will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on your behalf. It is your sole responsibility, and not the responsibility of SimpliBuzz, to take any steps necessary to comply with applicable tax requirements and/or other applicable laws.
You represent and warrant that:
- You have the full right, power, and authority to enter into, and to perform obligations under, this Agreement;
- Your participation in this Affiliate Program will not conflict with any other existing agreements or arrangements;
- Your execution of this Agreement and participation in the Affiliate Program will not violate any provision of law, rule, or regulation to which you are subject, any order, judgment, or decree applicable to you or binding upon your assets or properties, or any provision of your bylaws or organizational
- You are the sole and exclusive owner of the Affiliate Trademarks (defined below) and have the power to grant to SimpliBuzz the license to use such marks in the manner contemplated herein, and such grant will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you, or binding upon your assets or properties, or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity; and
- You will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you during the time you are a participant in the Affiliate Program.
You agree to implement appropriate technical measures to ensure a level of security appropriate for your obligations under this Agreement, taking into account the nature, scope, context, and purpose of processing any personal data. You agree to promptly assist SimpliBuzz in complying with any duties to cooperate with authorities under local, federal or other privacy laws.
In connection with this Agreement and the Affiliate Program, each Party (as “the Disclosing Party”) may disclose or make available Confidential Information to the other Party (as “the Receiving Party”).
Subject to the following paragraph, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, products, features, employees, plans, strategies, partners, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all unpublished documentation and non-public SimpliBuzz marketing materials constitute SimpliBuzz’s Confidential Information.
The Receiving Party will only use Confidential Information of the Disclosing Party as necessary to perform its obligations under this Agreement. The Receiving Party shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care.
INTELLECTUAL PROPERTY RIGHTS
The Services are solely owned and provided by SimpliBuzz and its licensors. Any confidential and proprietary software used for the SimpliBuzz products and Services, its Affiliate Program, visual interfaces, widgets, buttons, graphics, design, compilation, information, data, models, computer code (including source code or object code), products, services, templates, content, mobile applications and all other elements (“Materials”) are protected by intellectual property and other laws. All Materials included in the Services are the property of SimpliBuzz, its third-party licensors, or affiliated companies. SimpliBuzz retains all rights, title and interest in, and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, software, software documentation, interfaces and the content of our tools, widgets, buttons, applications, models, design functions and any other intellectual property and/or proprietary rights related to the SimpliBuzz products and Services. Except for the limited license granted under this Agreement, SimpliBuzz expressly reserves all rights in and to the Materials, including, without limitation, any intellectual property rights therein.
You may not store, copy, reproduce, re-publish, modify, upload/download, post, translate, loan, lease, rent, sell, distribute, transfer, including via electronic means of communication, demonstrate, decompile, reverse engineer, disassemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement. You shall not use the Materials and Trademarks (as defined below) for any purposes other than performing your obligations under this Agreement. You shall not use the Materials in any manner that is disparaging or that otherwise portrays SimpliBuzz, its affiliates, owners, managers, members, officers, employees or representatives in a negative light.
All trademarks, logos, slogans and taglines of SimpliBuzz (each, a “Trademark”, and collectively, the “Trademarks”) used in connection with the Services are the exclusive property of SimpliBuzz or its licensors. You will not attempt, now or in the future, to claim any rights in Trademarks, degrade the distinctiveness of Trademarks, or use Trademarks to disparage or misrepresent SimpliBuzz, its products, or the Services.
During the term of this Agreement, in the event that SimpliBuzz makes its Trademarks available to you within the Affiliate Program, you may use the SimpliBuzz Trademarks in accordance with the usage requirements and restrictions in this section. You must: (i) only use the images of Trademarks that SimpliBuzz makes available to you, without altering them in any way, and in strict compliance with any other guidelines provided by SimpliBuzz; (ii) only use Trademarks in connection with the Affiliate Program and the performance of your obligations under this Agreement; and (iii) immediately comply if SimpliBuzz requests that you discontinue use. You must not use Trademarks: (x) in a misleading or disparaging way; (y) in a way that implies SimpliBuzz endorses, sponsors, or approves other services or products; or (z) in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
SimpliBuzz does not allow any trademark bidding on any search engine or paid placement service or website, including, but is not limited to Google, Yahoo, Bing!, Ask, and other similar services. You may not bid on any Trademarks of SimpliBuzz or any phrase type, misspelling, variation or combination thereof. “SimpliBuzz” cannot be used as a part of Affiliate’s website domain name, blog, Facebook account, YouTube channel, Twitter username or any URL associated with you unless used in conjunction with your Affiliate Link. It is prohibited to use simplibuzz.com or other subdomains as the display URL in any search ad; provided, however, simplibuzz.com or other subdomains may be displayed within your Affiliate Link. When engaging in paid search engine campaigns, you must use their own domain and/or URL in your ads. It is also prohibited to use keywords that are similar to “SimpliBuzz” or any other Trademark belonging to SimpliBuzz to advertise for keywords that contain the SimpliBuzz brand name, including, without limitation, SimpliBuzz, SimpliBuzz coupons, SimpliBuzz discounts, SimpliBuzz reviews, etc. It is also prohibited to include the phrase “Official Site” in ad copy.
Subject to your compliance with the terms and conditions of this Agreement, SimpliBuzz hereby grants to you a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to market, display, perform, copy, transmit, and promote the Services solely in connection with the performance of your obligations hereunder. Your use of the Affiliate Link or other materials provided by SimpliBuzz in violation of this Agreement is strictly forbidden and will result in this limited license immediately being terminated and may further result in the termination of your Affiliate account.
Affiliate grants to SimpliBuzz a limited, non-transferable, non-sublicensable, non-exclusive, royaltyfree, revocable license to utilize your name, title, trademarks, and logos (the “Affiliate Trademarks”) in any advertisement or other materials used to promote SimpliBuzz and the Affiliate Program, in the sole and absolute discretion of SimpliBuzz.
DISCLAIMER; LIMITATION OF LIABILITY
The Affiliate Program and Services provided by SimpliBuzz are provided “as is” and on an “as available” basis. SimpliBuzz makes no warranties, guaranties, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, and does not guarantee, including but not limited to, click to action conversion rates, response rates or conversion rates from action to sale. Further, SimpliBuzz does not guarantee that: (i) SimpliBuzz products, the Services, and/or Affiliate Program will meet the specific needs of you or any user; (ii) SimpliBuzz products, the Services, and/or Affiliate Program will work without interruptions, on time, securely, and will not contain errors; (iii) the results obtained through the use of SimpliBuzz products, the Services, and/or the Affiliate Program will be accurate and reliable; (iv) any errors in SimpliBuzz Products, the Service, and/or Affiliate Program will be fixed in a timely fashion or at all.
You further agree that SimpliBuzz is not responsible for faulty referral links, any error, omission, interruption of the Services, defect or delay in transmission, order processing, or communication, technical or mechanical malfunctions, errors in this Agreement or any Affiliate Program materials, human-processing errors, failures of electronic equipment or computer hardware or software, damage to your equipment, computer hardware or software, or inaccurate information, whether caused by equipment, programming, human error, or otherwise.
In no event will the total liability of SimpliBuzz to you for all damages, losses, and causes of action arising out of, or relating to this Agreement, and your participation in the Affiliate Program (whether in contract, tort (including negligence), warranty, or otherwise), exceed the amount paid by SimpliBuzz to you hereunder during the one (1) month immediately preceding the day the act or omission occurred that gave rise to such claim.
You agree to indemnify, defend and hold harmless SimpliBuzz and its parent, subsidiaries, and affiliates, and each of their directors, officers, employees, agents, partners, members, managers, and other owners, at your own expense, against any third-party 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) your acts or omissions related to the Affiliate Program; (ii) your breach of this Agreement; (iii) your violation of applicable laws; (iv) any claim that the Affiliate Trademarks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or (v) any claim related to your website, including, without limitation, content therein not attributable to SimpliBuzz.
If SimpliBuzz seeks indemnification under this Agreement, it will: (i) notify the you in writing within thirty (30) days of becoming aware of any such claim; (ii) give you sole control of the defense or settlement of such a claim; and (iii) upon request, provide you with reasonable information and assistance to handle the defense or settlement of the claim. Notwithstanding the foregoing, you shall not accept any settlement that: (i) imposes an obligation on SimpliBuzz; (ii) requires SimpliBuzz to make an admission; or (iii) imposes liability not covered by this indemnification or places restrictions on SimpliBuzz without its prior written consent.
TERM AND TERMINATION
This Agreement will commence upon SimpliBuzz providing you with written confirmation that it has accepted your application for the Affiliate Program and will terminate upon either you or SimpliBuzz providing written notice to the other party as set forth below (the “Term”). SimpliBuzz reserves the right to end the Affiliate Program at any time, in its sole and absolute discretion. Upon termination of the Affiliate Program, SimpliBuzz will pay any accrued but unpaid Commissions.
Termination by the Affiliate. You may terminate this Agreement upon fifteen (15) days written notice to SimpliBuzz. In the event that you terminate this Agreement, payment of any accrued but unpaid Commissions will be made in accordance with the procedures set forth in this Agreement.
Termination by SimpliBuzz. SimpliBuzz, in its sole and absolute discretion, may terminate this Agreement, or suspend, block or terminate your Affiliate account and refuse any and all current or future use of the Affiliate Program, or any other SimpliBuzz products and Services, for any or no reason, at any time, immediately upon providing you with written notice. You further agree that, in the event that this Agreement is terminated by SimpliBuzz due to your violation of this Agreement, which shall be determined by SimpliBuzz in its sole and absolute discretion, you shall forfeit all right to any accrued but unpaid Commissions.
Upon termination of this Agreement, you agree to discontinue participation in the Affiliate Program, remove all Affiliate Links, and immediately cease all use of the SimpliBuzz Trademarks and references to this Affiliate Program.
DISPUTE RESOLUTION BY BINDING ARBITRATION; GOVERNING LAW.
Please read this binding arbitration requirement carefully. It affects your rights. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts.
For the purposes of this arbitration agreement, references to SimpliBuzz include its respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under this Agreement or any prior agreements between the Parties.
Notwithstanding the foregoing, either Party may bring an individual action in small claims court. This arbitration agreement does not preclude your bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against SimpliBuzz on your behalf. You agree that, by executing this Agreement, you and SimpliBuzz are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction or website use in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of this Agreement.
A Party who intends to seek arbitration must first send, by U.S. certified mail, a written notice of any Dispute (“Notice”) to the other party. A Notice to SimpliBuzz should be addressed to the address set forth on https://www.SimpliBuzz.com and must describe the nature and basis of the Dispute and set forth the specific relief sought (“Demand”). If SimpliBuzz and you do not reach an agreement to resolve the Dispute within 30 days after the Notice is received, you or SimpliBuzz may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by SimpliBuzz or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or SimpliBuzz is entitled.
All unresolved Disputes will be determined and settled by binding arbitration before an independent arbitrator selected by the Parties. The arbitration hearing will occur at a time and place convenient to the Parties in Maricopa County, Arizona, within 30 days of selection or appointment of the arbitrator. The arbitration will be governed by applicable rules of the American Arbitration Association (“AAA”) in effect on the date of the first notice of demand for arbitration. Notwithstanding any provisions in such rules to the contrary, the arbitrator will issue findings of fact and conclusions of law, and an award, within 15 days of the date of the hearing, unless the Parties otherwise agree. The Parties will select the arbitrator from a panel list made available by the AAA. If the Parties are unable to agree to an arbitrator within ten days of expiration of the 30-day negotiation period referenced above, the arbitrator will be chosen by alternatively striking from a list of five arbitrators obtained by SimpliBuzz from the AAA. The Party that delivered the Notice will have the first strike.
The prevailing or successful Party to any Dispute is entitled to recover all expenses of arbitration, including, without limitation, reasonable attorneys’ fees, witness fees, administrative fees, and arbitrator’s fees.
You waive any and all objections to the exercise of jurisdiction over you by any courts and to venue in such courts pursuant to the foregoing arbitration agreement.
Entire Agreement. This Agreement and the Terms of Service constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous understandings, whether oral or written, between the Parties. In the event of a conflict between the terms of this Agreement and the those of the Terms of Service, this Agreement will control.
Assignment. Neither Party may assign this Agreement or any of its rights under this Agreement, directly, by operation of law or otherwise, without the prior written consent of the other Party, except that SimpliBuzz may assign this Agreement, without Affiliate consent, to a parent, affiliate, or successor at-interest. Subject to the foregoing restrictions on assignment, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the Parties and their respective permitted successors and assigns. Any assignment in violation of this Agreement will be void.
Severability. If any part of this Agreement is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
Headings; Interpretation. The use of the section headers in this Agreement is intended strictly for your convenience and will have no effect on the interpretation of any clause. The word “including” is defined as: “including but not limited to”.
Amendments. SimpliBuzz reserves the right to amend this Agreement at any time. If SimpliBuzz does this, it will publish the updated Agreement on the SimpliBuzz website, as well as notify you by means prescribed herein. The changes will come into effect on upon the earlier to occur of (a) your agreement to the updated Agreement; (b) your continued use Affiliate Program after receiving notice of the updated Agreement; or (c) 15 days after the publication of the updated Agreement on the SimpliBuzz website. You agree that you are responsible for checking this Agreement regularly to track any changes.
Force Majeure. Neither Party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such Party’s reasonable control, including fire, flood, severe weather, earthquake, vandalism, accidents, sabotage, power failure, denial of service attacks or similar attacks, Internet failure, acts of God, acts of war, acts of terrorism, riots, civil or public disturbances, strikes, lockouts or labor disruptions, and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
Waiver. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
For any notice to SimpliBuzz that you give under or regarding this Agreement, you can contact SimpliBuzz by sending us an email at email@example.com or sending a notice via registered mail to the following address:
c/o Hool Coury Law, PLC
2398 East Camelback Road, Suite 1020
Phoenix, AZ 85016
This Affiliate agreement was updated on August 12, 2019.