Last updated June 18th 2021
AGREEMENT TO AFFILIATE TERMS
Podcast Hawk Affiliate Program Agreement
PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and us (“Podcast Hawk”). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.
The Podcast Hawk Affiliate Program Agreement applies to your participation in Podcast Hawk Affiliate Program (the “Affiliate Program”). These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them.
Podcast Hawk reserves the right to periodically update these terms. Podcast Hawk also reserves the right to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing or new program, including our partner programs. If Podcast Hawk updates or replaces the terms of this Agreement, we will let the Affiliate know via electronic means, which may include an in-app or in-account notification or by email. If the Affiliate does not agree to the update or replacement, you can choose to terminate as we describe below.
“Podcast Hawk Affiliate” means a company owned, operated or controlled by Podcast Hawk.
“Marketing Affiliate Program” means our marketing affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you.
““Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Tool” means the tool that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Agreement” means this Marketing Affiliate Program Agreement and all materials referred or linked to in here.
“Commission” means an amount described on the Program Policies Page for each Customer Transaction.
“Customer” means the authorized actual user of the Podcast Hawk Products who has purchased the Podcast Hawk products after being an Affiliate Lead.
“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement.
“Customer Data” means all information that Customer submits or collects via the Podcast Hawk Products and all materials that Customer provides or posts, uploads, inputs or submits for public display through the Podcast Hawk Products.
“Podcast Hawk Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“Podcast Hawk Products” means both the Subscription Service and Other Products.
“Program Policies Page” means the landing page:
https://podcasthawk.com/affiliate/ (Affiliate Tool) where we will provide all the up to date guidelines and policies for the Affiliate Program.
“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include all of our software, legacy products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
“Subscription Service” means “Podcast Hawk” that is subscribed to, and developed, operated, and maintained by us, accessible via https://www.PodcastHawk.com or another designated URL.
“We”, “us”, “our”, and “Podcast Hawk” means Podcast Hawk (Podcast Hawk Inc).
“You” and “Affiliate” means the party, other than Podcast Hawk, entering into this Agreement and participating in the Affiliate Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Podcast Hawk is permitted to enter into any agreement with any other party for any reason or no reason.
- Affiliate Acceptance
Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance (the “Effective Date”), the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrolment criteria set out in the Program Policies Page, if applicable. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.
You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.
- Customer Transactions
4.1 Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided on the Program Policies Page, from the date, the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission for the First Payment made by each new Customer who completes a valid Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of the first purchase of the Subscription Service by the Customer and you will receive a Commission payment for that Customer Transaction and its recurrences, regardless of any additional purchases made by that customer during their Subscription Service.
The Affiliate will not be entitled to receive Commission on any additional purchases of Podcast Hawk Products by that same Customer.
If the original subscription is cancelled and the customer re-subscribes, the Affiliate will not be entitled to receive Commission.
(a) To be eligible for Commission, the following must occur:
(i) an Affiliate Lead must be accepted and be valid in accordance with Section 4.3 below (Acceptance and Validity);
(ii) a Customer Purchase Transaction must have occurred;
(iii) a Customer must remain a Customer for a minimum of Thirty (30) days from the date of purchase (For example, a Customer who makes a purchase on the 10th day of January must remain a customer until the 10th day of February in order for the Affiliate to be eligible for a Commission);
(iv) Customer is a first time user to Podcast Hawk and has not purchased any previous Podcast Hawk applications either directly by him or from anyone in his organization; and,
(v) All transactions must occur on PodcastHawk.com domain or subdomains.
(b) Affiliate is NOT eligible to receive Commission or any other compensation from us based on transactions for Other Products or if:
(i) such compensation is disallowed or limited by state or local law or regulation in the United States of America or the laws or regulations of your jurisdiction;
(ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Podcast Hawk Affiliates;
(iii) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to you;
(iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse or by any other means that we deem to breach the spirit of the Marketing Affiliate Program; or,
(v) the Customer participates in any of our partner programs and is eligible to receive commission in relation to the Customer Transaction under any of these programs. In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We reserve the right to discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
4.3 Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by Podcast Hawk. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination, it is a new potential customer of ours and it is not, at the time of submission or Thirty (30) days prior thereto, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead, in our reasonable discretion. If an Affiliate Lead does not purchase the Subscription Service within the time period from their first click on the Affiliate Link Affiliate will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.
4.4 Engagement with Prospects. Once Podcast Hawk has received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid, then we may choose to maintain it in our database. Any engagement between Podcast Hawk and an Affiliate Lead will be at Podcast Hawk’s discretion.
4.5 Forfeit. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in this Section 4 remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay Commission associated with a Forfeited Transaction. Once you comply with all of the requirements set forth, then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.
4.6 Commission Payment. We, or a Podcast Hawk Affiliate, will pay the Commission amount due to you within thirty (30) days for any Commission amounts that you become eligible for according to the Eligibility section above. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to do so at our discretion). In case of a chargeback/refund initiated by the customer, the commission paid corresponding to the original transaction will be reversed or adjusted in the subsequent payments.
4.7 Taxes. You are responsible for payment of all taxes applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
4.8 Commission Amounts. We reserve the right to alter or change the Commission amount. We will post all information regarding the Commission amount on our Program Policies Page.
- Commission Determination; Qualified Purchases
Commissions will be calculated for each Qualified Purchase (as defined herein) based on the commission rates stated on the Podcast Hawk Program Policies Page, subject to commission accruing pursuant to below.
A “Qualified Purchase” does NOT include the following:
- A purchase by a Referred Customer that has transferred from any Podcast Hawk partners or subsidiaries.
- A purchase by a Referred Customer who is also associated with any Podcast Hawk reseller, referral, or other program.
- A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or other program.
- A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
- A purchase by a Referred Customer that has not been in good standing for a period of at least Thirty (30) days or is in violation of Podcast Hawk’s Terms of Service, Acceptable Use Policy, or other applicable policies at the time the Commission Fees accrue.
- A purchase that Podcast Hawk suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
- A purchase referred by an Affiliate that has an excessive cancellation rate as determined in Podcast Hawk’s sole discretion.
- A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate.
- A purchase by a Referred Customer if the Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by us in our sole discretion.
- A purchase by a Referred Customer who received a popup with a discounted offer, while leaving Podcast Hawk’s website during their purchase.
Podcast Hawk reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program or who have commissions that are potentially fraudulent as determined by Podcast Hawk in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
Podcast Hawk reserves the right to suspend the payment of Commission Fees 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 by the Affiliate or a Referred Customer.
Podcast Hawk reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.
Podcast Hawk reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees;
Podcast Hawk is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact Podcast Hawk to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in Podcast Hawk’s sole discretion.
Commissions for any Referred Customer who is associated with any Podcast Hawk reseller, referral or other program may not be considered a Qualified Purchase. In other words, you may not receive double commissions or compensation.
In the event that the Referred Customers that are referred to Podcast Hawk by an Affiliate are determined to have an excessive cancellation rate, as determined by Podcast Hawk in its sole discretion, Podcast Hawk reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud Podcast Hawk or any violation of the terms of this Agreement constitute immediate grounds for Podcast Hawk to terminate the Affiliate’s participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
- Accrual of Commissions
Commissions will accrue and only become payable once you provide all relevant tax and address documentation pursuant to this Agreement and reach the Commission Threshold of $100.00, based on the commission rates stated on the Podcast Hawk Affiliate Program Policies Page, solely as applied to Qualified Purchases. All Qualified Purchases eligible to result in commissions under this Section must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a commission. Once a commission has accrued under this Section, the amount of such commission (the “Commission Fee”) shall be due and payable to you under the terms of Section 7 below. Podcast Hawk reserves the right to change the Commission Threshold by amending this Agreement and will notify you of any such amendment pursuant to the terms of this Agreement.
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $100 in Program Fees during that twelve month period, we may close your inactive account and terminate this Agreement. If you have accrued Program Fees in your account, a maintenance fee will be deducted from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
- Commission Payments
7.1 Subject to the terms of this Agreement and the accrual of commissions as set forth in Section 6 above, commissions will be calculated according to the specified percentage or dollar amount set forth in the commission report for each Qualified Purchase that accrues during the period for which such commission fee is being calculated.
7.2 Commission Fees will be processed 30 days after the end of the month or other period in which they accrue. Podcast Hawk will only compensate you for Qualified Purchases made in accordance with this Agreement.
7.3 Commission Fees shall be paid based on the current information in your Affiliate profile. You are required to notify us promptly of any change in your address by updating your profile information via email.
7.4 In order to receive payment under this Agreement, you must:
(a) agree to the terms of this Agreement;
(b) complete any and all required tax documentation in order for Podcast Hawk to process any payments owed to you.
(c) The Service Provider will pay commission to the Referral Partner via wire-transfer to the bank account indicated upon creating their affiliate account.
7.6 Podcast Hawk is not responsible for paying any third-party fees charged for you to receive Affiliate Commission Fees. Podcast Hawk, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
7.7 Commission Disputes. Affiliate will be provided with a statistics report at the end of each month and agrees to file any disputes within thirty (30) days after receiving the report. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by Podcast Hawk and Affiliate forfeits forever any rights to a potential claim.
7.8 It is solely your responsibility to provide Podcast Hawk with accurate tax and payment information that is necessary to issue a Commission Fee to you. If Podcast Hawk does not receive the necessary tax or payment information within Thirty (30) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.
Any address change must be made in the Affiliate profile in the Affiliate console at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed
- Promotion of Our Affiliate Relationship
8.1 Use of Links. If you qualify and agree to participate as an Affiliate, we will make a variety of graphic and textual links available to you (each referred to herein as a “Link” or, collectively, as the “Links”). The Links will serve to identify your website as a member of the Affiliate Program and will establish a link from your website or e-mail to Podcast Hawk’s website. You agree to cooperate fully with us in order to establish and maintain such Links. You further agree that your use of the Links must be in compliance with this Agreement at all times. Podcast Hawk may modify the Links from time to time in its sole discretion. All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge (e.g. iframe). Any information with respect to Podcast Hawk that is going to be displayed on the Affiliate Site must be preapproved by Podcast Hawk in writing.
8.2 Discounts and Coupons. You are not allowed to post any refunds, credits or discounts on the Podcast Hawk Products and Services, or other content concerning Podcast Hawk, without Podcast Hawk’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the Podcast Hawk website will in no way alter the look, feel, or functionality of the Podcast Hawk website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees
- Online Advertising
EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (a) USE THE PODCAST HAWK TRADEMARK, NAME, OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “Podcast Hawk IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT PODCAST HAWK’S EXPRESS PRIOR WRITTEN PERMISSION; (b) USE PODCAST HAWK IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (c) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF PODCAST HAWK IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF PODCAST HAWK IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF PODCAST HAWK’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY PODCAST HAWK’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH PODCAST HAWK SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF PODCAST HAWK’S INTELLECTUAL PROPERTY RIGHTS.
- Data Security
In addition to the obligations set forth herein, Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist Podcast Hawk in complying with any data subject rights request under the GDPR that Podcast Hawk may receive from any individuals referred to Podcast Hawk by Affiliate. Affiliate further agrees to promptly assist Podcast Hawk in complying with any duties to cooperate with supervisory authorities under the GDPR. Without limiting the foregoing, Affiliate will comply with all applicable export laws.
- Training and Support
Affiliate Training and Support. We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We reserve the right to change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.
As an Affiliate, you grant to us a nonexclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you, you may use our trademark as long as you follow the usage requirements in this section. You agree to: (a) only use the images of our trademark that we make available to you, without altering them in any way; (b) only use our trademarks in connection with the Affiliate Program and this Agreement; and, (c) immediately comply if we request that you discontinue use. You agree NOT to: (a) use our trademark in a misleading or disparaging way; (b) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or, (c) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
- Proprietary Rights
13.1 Podcast Hawk’s Proprietary Rights. No license to any software is granted by this Agreement. The Podcast Hawk Products are protected by intellectual property laws. The Podcast Hawk Products belong to and are the property of us. We retain all ownership rights in the Podcast Hawk Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Podcast Hawk Content, or the Podcast Hawk Products in whole or in part, by any means, except as expressly authorized in writing by us. Podcast Hawk, the Sprocket Design, the Podcast Hawk logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers, affiliates and partners to comment on the Podcast Hawk Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Podcast Hawk Products, without payment to you.
13.2 Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with the Podcast Hawk Products. For the avoidance of doubt, Customer will own and retain all rights to the Customer Data.
14.1 Confidential Information Defined. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) including whether orally or in writing, that is designated as confidential, and Podcast Hawk customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.
14.2 Obligations. The Receiving Party shall: (a) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (c) not disclose Confidential Information of the Disclosing Party to any third party; and, (d) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Opt Out and Unsubscribing
You will comply promptly with all customer opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
- Term and Termination
16.1 Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated pursuant to the terms of this Agreement.
16.2 Termination Without Cause. Both Affiliate and Podcast Hawk may terminate this Agreement on fifteen (15) days written notice (via email) to the other party.
16.3 Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
16.4 Termination for Cause. Podcast Hawk may terminate this Agreement as follows: (a) upon thirty (30) days’ notice to you of a material breach, if such breach remains uncured at the expiration of such period; (b) upon fifteen (15) days’ notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period; (c) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (d) immediately, if you breach the terms applicable to your subscription with us (provided you have a subscription with us), including if you default on your payment obligations to us or our affiliate; or, (e) immediately, if we determine, in our sole discretion, that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
16.5 Effects of Expiration/Termination. Expiration of this Agreement and termination of this Agreement, whether without cause by us, by you with cause, or by you according to Section 16.3, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration and provided that in no event shall you be entitled to payment of Commission under this Agreement if you are eligible to receive a revenue share payment under the Sales Solution Program Agreement, Sales Referral Program Agreement or Agency Partner Program Agreement. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, Affiliate will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.
- Affiliate Representations and Warranties
You represent and warrant that you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Podcast Hawk with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement. You represent and warrant that your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements. You represent and warrant that you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
You further represent and warrant that: (a) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a Podcast Hawk Affiliate on any website(s) you own where you make an Affiliate Link available); (b) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (c) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Podcast Hawk’s own advertising including, but not limited to, our branded keywords; (d) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (e) you will not attempt to mask the referring URL information; and, (f) you will not use your own Affiliate Link to purchase Podcast Hawk products for yourself.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Podcast Hawk (and/or its officers, directors, employees, agents, representatives, service providers, licensors, and affiliates) by any third party to the extent such Action is based upon or arises out of: (a) your participation in the Affiliate Program; (b) our use of the prospect data you provided us; (c) your noncompliance with or breach of this Agreement; (d) your use of the Affiliate Tool; or, (e) our use of the Affiliate Marks. We will notify you in writing within thirty (30) days of our becoming aware of any such claim, and give you sole control of the defense or settlement of such a claim and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You agree to not accept any settlement that imposes an obligation on Podcast Hawk, requires us to make an admission, imposes liability not covered by these indemnifications, or places restrictions on us without our prior written consent.
- Disclaimers; Limitations of Liability
19.1 Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE PODCAST HAWKPRODUCTS, PODCAST HAWK CONTENT, THE AFFILIATE PROGRAM FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE PODCAST HAWKPRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE PODCAST HAWKPRODUCTS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
19.2 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
19.3 Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, PODCAST HAWK IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
19.4 Cookie Duration. COOKIES USED AS PART OF THIS AFFILIATE PROGRAM HAVE SEVEN DAYS DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, PODCAST HAWKSHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
- E-mails and Publicity
You shall not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as “SPAM”) without prior written consent from Podcast Hawk, to be granted or denied in Podcast Hawk’s sole discretion, in each instance. Additionally, you may only send emails containing a Podcast Hawk affiliate link and or a message regarding Podcast Hawk or Podcast Hawk’s Affiliate Program to people who have previously consented to receiving such communications from you. Your failure to abide by this Section, the CAN-SPAM Act of 2003, our Anti-Spam Policy, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by you and will result in the forfeiture by you of any and all rights you may have to any commissions and the termination of your participation in the Affiliate Program. Further, if your account has excessive clicks in a very short period of time as determined by Podcast Hawk in its sole discretion, the Affiliate relationship may be terminated.
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and that this provision is not intended to limit the mobility of either our employees or contractors.
22.1 Amendment; No Waiver. At Podcast Hawk’s discretion, we may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via website and we will let you know by email. The updated Agreement will become effective and binding on the next business day after we have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. If you do not agree to the update, change or replacement, you can choose to terminate as described above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
22.2 Applicable Law. This Agreement shall be governed by the laws of the State of Delaware, without regard to the conflict of law’s provisions thereof. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any arbitration proceeding brought pursuant to this Agreement.
22.3 BINDING MANDATORY ARBITRATION. PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. EXCEPT FOR ANY ACTION TO COLLECTS FEES DUE AND OWING TO PODCAST HAWK, ANY DISPUTE, CLAIM OR DISAGREEMENT BETWEEN PODCAST HAWKAND YOU ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO THE INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT (A “DISPUTE”) WILL BE RESOLVED EXCLUSIVELY BY ARBITRATION. THE ARBITRATION, INCLUDING THE SELECTING OF THE ARBITRATOR, WILL BE ADMINISTERED BY THE ALTERNATIVE DISPUTE RESOLUTION PROVIDER AMERICAN ARBITRATION ASSOCIATION (“AAA”), UNDER ITS STREAMLINED ARBITRATION RULES (THE “RULES”) BY A SINGLE NEUTRAL ARBITRATOR AGREED ON BY THE PARTIES WITHIN THIRTY (30) DAYS OF THE COMMENCEMENT OF THE ARBITRATION.
THE ARBITRATION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE U.S. CODE). EITHER PARTY MAY INITIATE THE ARBITRATION PROCESS BY FILING THE NECESSARY FORMS WITH AAA. TO LEARN MORE ABOUT ARBITRATION, YOU CAN CALL ANY AAA OFFICE OR REVIEW THE MATERIALS AT WWW.ADR.ORG. THE ARBITRATION SHALL BE HELD IN NEWARK, DELAWARE. THE PARTIES WILL EXCHANGE NON-PRIVILEGED INFORMATION RELEVANT TO THE DISPUTE BEING ARBITRATED. YOU MAY BE REPRESENTED BY LEGAL COUNSEL OF YOUR CHOICE IN CONNECTION WITH THE ARBITRATION, AT YOUR COST.
THE PARTY THAT INITIATES THE ARBITRATION WILL BE REQUIRED TO PAY THE FILING FEE. EACH PARTY SHALL BE RESPONSIBLE FOR ONE-HALF OF THE ARBITRATION FEES. EACH PARTY WILL BE RESPONSIBLE FOR THEIR RESPECTIVE ATTORNEY’S FEES AND COSTS EXCEPT THAT THE PARTY PREVAILING IN THE ARBITRATION SHALL BE ENTITLED TO RECOVER ITS ATTORNEYS’ FEES AND COSTS FROM THE NON-PREVAILING PARTY.
DISPUTES MUST BE BROUGHT IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND MUST PROCEED ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS. THE ARBITRATOR WILL NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. IF EITHER PARTY ARBITRATES A DISPUTE, NEITHER PARTY, OR ANY OTHER PERSON, MAY PURSUE THE DISPUTE IN ARBITRATION AS A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION, NOR MAY ANY SUCH DISPUTE BE PURSUED ON BEHALF OF EITHER PARTY IN ANY LITIGATION IN ANY COURT. CLAIMS REGARDING ANY DISPUTE AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION ARE SUBJECT TO ARBITRATION ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS, AND THE ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS. THIS MEANS THAT THE ARBITRATION MAY NOT ADDRESS DISPUTES INVOLVING OTHER PERSONS WITH DISPUTES SIMILAR TO THE DISPUTES BETWEEN PODCAST HAWK AND YOU.
THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD ANY LEGAL OR EQUITABLE REMEDY OR RELIEF THAT A COURT COULD ORDER OR GRANT UNDER THIS AGREEMENT IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWAREAND SUBJECT TO THIS AGREEMENT. THE ARBITRATOR, HOWEVER, IS NOT AUTHORIZED TO CHANGE OR ALTER THE TERMS OF THIS AGREEMENT OR TO MAKE ANY AWARD THAT WOULD EXTEND TO ANY TRANSACTION OTHER THAN THAT CONTEMPLATED BY THIS AGREEMENT. ALL STATUTES OF LIMITATIONS THAT ARE APPLICABLE TO ANY DISPUTE SHALL APPLY TO ANY ARBITRATION BETWEEN THE PARTIES HERETO. THE ARBITRATOR WILL ISSUE A DECISION OR AWARD IN WRITING, BRIEFLY STATING THE ESSENTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW.
BECAUSE THE PARTIES HERETO HAVE AGREED TO ARBITRATE ALL DISPUTES NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES OF THE ARBITRATOR. FURTHER, YOU, YOUR HEIRS, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, MANAGERS, WORKERS, EMPLOYEES, CONTRACTORS, PARTNERS, AGENTS, REPRESENTATIVES, PARENT, SUBSIDIARY OR AFFILIATE WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS PERTAINING TO ANY DISPUTE. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING ON THE PARTIES AND MAY BE ENTERED AND ENFORCED IN ANY COURT HAVING JURISDICTION, EXCEPT TO THE EXTENT IT IS SUBJECT TO REVIEW IN ACCORDANCE WITH APPLICABLE LAW GOVERNING ARBITRATION AWARDS. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
22.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
22.5 Equitable Relief. Notwithstanding the Arbitration Clause at Section 22.3 above, and subject to it, Podcast Hawk shall not be prohibited from pursuing preliminary injunctive relief in any court of competent jurisdiction. Affiliate acknowledges and agrees that a breach or threatened breach by Affiliate of any of its obligations under this Agreement would cause Podcast Hawk irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Podcast Hawk will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
22.6 Actions Permitted. Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
22.7 Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
22.8 Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Podcast Hawk Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Podcast Hawk Products to prohibited countries or individuals or permit use of the Podcast Hawk Products by prohibited countries or individuals.
22.9 Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
22.10 Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Podcast Hawk:
200 Continental Drive
Suite 401 – #1104Newark, DE 19713, USA
To Affiliate: your address as provided by you in our Affiliate account information.
We may give electronic notices specific to you by email to your email address(es) on record in our account information. We may give notice to you by telephone calls to the telephone numbers on record in our account information.
22.11 Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Podcast Hawk Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Podcast Hawk Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
22.12 Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
22.13 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22.14 Program Policies Page. Podcast Hawk may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference
22.15 No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to Podcast Hawk, the Podcast Hawk Products, Podcast Hawk trademarks, or any other property or right of ours.
22.16 Sales by Podcast Hawk. This Agreement shall in no way limit our right to sell the Podcast Hawk Products, directly or indirectly, to any current or prospective customers.
22.17 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
22.18 Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.