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Diib is the owner and operator of the Answer Engine®, a unique analytics platform and service. Affiliate wishes to promote, market and advertise the Diib Service to potential Diib customers (“Referrals”) through its website(s) and other marketing channels, in accordance with Diib’s Affiliate Program (“Program”) detailed in this Agreement.

Agreement

The Parties agree as follows:

LICENSE

a.     Subject to this Agreement, Affiliate approval by Diib, and its terms, Diib hereby grants to Affiliate a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Diib Service to Referrals, and to use the Diib trademarks, logos and URLs provided by Diib within and accessible to the affiliate program members online.

b.     Diib may revoke this license at any time by giving Affiliate a written notice (including via email).

PROGRAM COMMITMENTS

a.     Affiliate must complete the online application for participation in the Program found on Diib’s website (“Site”) and enter this Agreement. Diib may accept or reject any application at its sole discretion.

b.     Legal Agreements.  As part of its participation in the Program and in acting as Diib’s Affiliate, Affiliate hereby agrees and consents to the terms of this Agreement and the Program, the Guidelines, and any other requests and rules set by Diib from time to time, in its reasonable discretion, in connection with Affiliate’s ongoing participation in the Program and promotion of the Diib Service to Referrals.

c.     Promotion, Referral Activities. Affiliate agrees to engage in continued, active promotion of the Diib Service in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this Agreement.

d.     Prohibited Activities. Affiliate agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Diib’s sole discretion. Affiliate agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Diib Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

e.     Liabilities. Affiliate shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Affiliate’s operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Diib Mark violates a third party’s trademark rights, Diib is not responsible for the development, operation or content of Affiliate’s Marketing Materials and Affiliate agrees to defend, indemnify and hold Diib harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Affiliate’s Marketing Materials.

f.      Customer Relations. During and after the Term, Diib shall be the exclusive owner of all relations created via Affiliate among Diib and Referrals with respect to the Diib Service, including any and all information identifying Referrals who contract with Diib for the use of the Diib Service. The Master Agreement, Privacy Policy, and Diib’s rules and procedures for the Diib Service will apply to these Referrals and may be changed by Diib without prior notice to Affiliate, and Affiliate agrees to convey to Referrals the nature of their relations with Diib under the Master Agreement.

QUALIFIED REFERRALS, COMMISSIONS

a.     Qualified Referrals” mean Referrals (a) referred by Affiliate to Diib (b) of whom Diib has no record in connection with the Diib Service

b.     Referral Procedure.  Each Referral shall be referred to Diib by Affiliate through an online link associated with the Affiliate for tracking purposes.

c.     Commissions.  Diib shall collect all fees from Referrals for the Diib Service directly from Referrals (“Subscription Fees”).

d.     Associated charges. Affiliate shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Affiliate shall indemnify, defend and hold Diib harmless from and against any claims arising out or relating to all charges emanating from Diib’s payment of Referral Fees.

TERM AND TERMINATION

a.              Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”), unless Diib rejects Affiliate’s application to participate in the Program.

b.              Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.

c.              Early Termination.

 .                  Without Cause. Diib shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days’ prior written notice to Affiliate.

i.                  For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.

d.              Effect of Termination. From and following the date of termination of this Agreement Affiliate’s rights under this Agreement shall terminate, and Affiliate shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.

 

5.     GENERAL

 .               Modification of Agreement. Diib may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site or notifying Affiliate via email. If Affiliate objects to any such change, Affiliate may terminate this Agreement for cause. Affiliate’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.

a.              Assignment. Diib may assign this Agreement at any time. Affiliate may not assign or transfer this Agreement without Diib’s prior written consent, such consent not to be unreasonably withheld.

b.              Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) the Diib Answer Engine® Service and related content and technology around the world (“Diib IP Rights”) are and will remain the exclusive property of Diib and its subsidiary companies. The License granted by Diib to Affiliate under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Affiliate’s right to use the Licensed Marks is at the discretion of Diib and is subject to Affiliate’s compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations.

c.              No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.

d.              Disclaimer of Warranty. Other than Diib’s express warranty under the previous subsection 5.5, Diib makes no other warranty, express or implied, of any kind and Diib expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.

e.              LIMITATION OF LIABILITY. NEITHER DIIB NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF DIIB SHALL BE LIABLE TOWARDS AFFILIATE OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, DIIB’S ENTIRE LIABILITY TO AFFILIATE UNDER THIS AGREEMENT SHALL NOT EXCEED $100 U.S. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY AFFILIATE UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT AFFILIATE RECOGNIZES THE LIMITATIONS HEREIN ON DIIB’S LIABILITY.

f.               Independent Contractors. The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Affiliate is expressly precluded from acting on Diib’s behalf.

g.              Indemnification. Affiliate will indemnify, defend and hold Diib and its subsidiaries, affiliates, officers and employees (the “Diib Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Diib Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Affiliate; (b) the negligence, gross negligence or willful misconduct of Affiliate or its employees, agents or contractors; or (c) a failure by Affiliate or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.

h.              Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Diib’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.

i.               Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

j.               Non-Disparagement. During the Term and for five (5) years thereafter, Affiliate agrees that it will not disparage Diib or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Diib’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Diib or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Diib refusing to enter into this Agreement.

k.              Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page.

l.               Governing Law; Jurisdiction; Dispute Resolution. This Agreement shall be governed by the laws of the State of Utah, U.S.A. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of Utah. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within ten (10) business days of the receipt of such notice.