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PLEASE READ THIS AFFILIATE PROGRAM SELLER AGREEMENT CAREFULLY AS IT FORMS A BINDING AGREEMENT BETWEEN YOU AND GRIN TECHNOLOGIES INC.
THIS AFFILIATE PROGRAM SELLER AGREEMENT IS ENTERED INTO BETWEEN GRIN TECHNOLOGIES INC. (“GRIN” “WE,” “US,” OR “OUR”) AND YOU (“SELLER” OR “YOU”) AS OF THE EFFECTIVE DATE (AS DEFINED HEREIN). YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT. YOU FURTHER REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS THE GRIN SERVICES OR PARTICIPATE IN THE GIA AFFILIATE PROGRAM.
The Affiliate Program Seller Agreement applies to your participation in our Affiliate Program (the “Affiliate Program”). We periodically update these terms. If we update these terms we will let you know via electronic means which may be at https://grin.ai, or by an in-app notification within the Affiliate Tool or email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
1. Definitions
“Affiliate” means a third-party that has registered and been approved to participate in the Affiliate Program.
“Affiliate Program” means our affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available within the Affiliate Program.
“Affiliate Link” means the unique tracking link that is associated with a Seller Product that enables Affiliates to promote through various website and social media channels in accordance with this Agreement and the Affiliate Program Creator Agreement.
“Affiliate Policies” means the policies applicable to Affiliates which we are located on the Program Policies Page (as defined below) or that we may otherwise make available to you from time to time.
“Affiliate Tool” means the app or web based tool that we make available to you upon completion of your Affiliate Program registration as verified by us and for you to use in order to participate in the Affiliate Program.
"Agreement" means this Affiliate Program Agreement and all materials referred or linked to in here.
“Commission” means an amount equal to the percentage of the sale price of any Product sold as a result of Promotion by a Seller as calculated by a commission rate described in the Affiliate Tool (or if applicable, in the Program Policies) for each Customer Transaction.
“Customer” means the authorized user who has purchased Seller Products after being an Affiliate Lead.
“Customer Transactions” means a Valid Transaction by an Affiliate Lead that is eligible for Commission pursuant to this Agreement.
“Mark” or “Marks” means any logo, trademark or other mark owned by us or our affiliates or which may be provided to you in connection with the Affiliate Program.
“Marketplace” means the online, searchable marketplace of Products made available by us via the Services.
“Product” means any product or service which is registered for sale via the Services, either by you or by another Affiliate Program Seller.
"Program Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“Program Policies Page” means the landing page: https://www.grin.ai/affiliate-program-policies where we will provide all the up to date guidelines and policies for the Affiliate Program, including any Third-Party Networks.
“Promote” or “Promotion” means advertising, marketing or otherwise promoting a Product within the Services or via any other online or offline channel or medium.
“Seller(s)” means any brand, retailer, entity or person that submits one or more Products for sale in the Affiliate Program, including any third-party affiliate program as identified in the Program Policies Page.
"Seller Data" means all information that a Customer submits via the Services and all materials that Customer provides or posts, uploads, inputs or submits for public display through the Services.
“Services” means the Grin proprietary online platform and Affiliate Tool, which is made available to you during the term of this Agreement, including without limitation all software, information, documentation, updates, modifications, releases, versions, and enhancements to such software, features or functionality that may hereafter be generally released by us, as well as all present and future intellectual property, and other data not owned by you or any Customer or Seller.
“Site” or “Sites” any website or social media channel or other digital asset you own, control or maintain the requisite rights to maintain.
“Third-Party Network” means any third party affiliate network that we maintain a business relationship with and within which the Affiliate Program is considered a subnetwork.
2. Non-Exclusivity. 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 use of similar services and products of third parties.
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Subject to the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, revocable, right and license, without right to sublicense, to access and use the Services solely for the purposes set forth in this Agreement. In the event you transfer your account or ownership of any Product, as defined below, You shall ensure that any purchasers or assignees are bound by the terms of this Agreement.
In addition to any other rights or remedies afforded Grin under or otherwise in connection with this Agreement, you agree and acknowledge that you have read and agree to comply with the following policies which are hereby incorporated by reference into, and made a part of, this Agreement:
a. You will be required to register for an account in order to use the Services. When you provide information during the registration process, you agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy.
b. If you register for a Services account, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer, or assign your subscription or any subscriber rights. you are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Services using your account information in whole or in part. We reserve the right to terminate your account or otherwise deny you access in our sole discretion without notice and without liability.
If you Promote a Product, whether via the Services, including for the purpose of earning a Commission, you agree, acknowledge, represent, and warrant that:
a. You will establish your Seller Return Policy as set forth below.
b. When you Promote a Product, you will use the applicable Seller's trademarks, logos, trade names or service marks in accordance with such Seller's trademark guidelines, which will either be supplied by us or set forth in the Program Policies Page, if applicable.
c. You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate, or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property, or other proprietary right (collectively "IP Rights") of any entity or individual. This includes, without limitation, the use of artificial intelligence technologies to create, distribute, or promote content that falsely represents, impersonates, or simulates the likeness, voice, appearance, or identity of any real individual—such as celebrities, public figures, private individuals, or any other person—without express legal authorization. This prohibition covers, but is not limited to, the creation or dissemination of Deep Fakes, voice clones, or AI-generated imagery or media that violates IP Rights or the rights of publicity or privacy of any party.
d. You will not interfere with or manipulate rankings of the Marketplace, tracking of Commissions, or the normal flow of traffic to, through, or from the Services.
e. If you Promote Products, which are subject to higher regulatory scrutiny or risks, as determined by us in our sole discretion, you must be in compliance with the additional terms and conditions we provide to you from time to time for the Promotion of such Products, which additional terms are incorporated into this Agreement by this reference.
f. You will not Promote violence, sexually explicit materials, Products from any website, blog, social network, forum, or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco, or prescription drugs, or that discriminate or promote discrimination based upon race, sex, religion, nationality, disability, sexual orientation, or age.
g. You will not Promote any Products to children under the age of thirteen (13).
h. You will not defame any person or entity.
i. You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
j. You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
k. You will not in any way copy the "look and feel" of any third-party website, or otherwise imply that the Promotion is in fact a third-party website.
l. All communications and representations made by you in connection with any Promotions or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false, or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner and will otherwise comply with your country's laws, all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines, and any other laws applicable to such Promotion.
m. We reserve the right but are not obligated to review your Promotions. You agree that we, in our sole discretion and at any time, may require changes to Product Promotion and delivery pages, customer support or other items related to the content of your Promotions.
n. You will provide valid contact information, including but not limited to a working email address and phone number, where we can send inquiries and receive a non-automated reply by end of the following business day. You will keep all such information accurate and current with your account.
o. We do not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Sellers, nor is it responsible for any bonuses, prizes or other incentives offered by Sellers via the Services. Your use of any information presented by a Seller is voluntary, and your reliance is at your sole risk. You acknowledge and understand that we do not verify statements, claims, incentives, or Promotions made by sellers via the Services.
p. You will provide in an accurate and complete manner all information necessary for us to comply with the the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act, 15 U.S.C §45(f) (the "INFORM Consumers Act"), and update such information as necessary for us to remain in compliance with the INFORM Consumers Act.
q. You will comply with all applicable laws, rules and regulations, and will not interfere with any other user's business or use of the Services.
r. We reserve the right to take any action against you for violating this Section 2, including account suspension and termination, in accordance with this Agreement.
If you register any Products for sale via the Services, you agree, acknowledge, represent, and warrant that:
a. All Products you register for sale via the Services must be approved by us prior to you being able to sell the Products through the Services. In certain circumstances, we may require you to modify your Products prior to being approved or prohibit your Products from being sold via the Services, in our sole discretion. Our approval or modification of a Product is not an endorsement of the Product or of any modification thereof, and we are not liable in any way for such approval or modification.
b. All Products you register for sale via the Services, and the offering and sale thereof, via the Services, comply with all of your country's laws, all laws of any country to which your Product may be shipped, and all applicable U.S. federal and state laws and regulations, and any other laws applicable to the Product or Promotion.
c. Your Products do not involve downloading software on the computer of the Customer purchasing a Product unless a purchase is completed or you provide the Purchaser a clear and conspicuous disclosure describing all of the software being downloaded and its functionality, and you obtain express consent prior to any such downloads.
d. You will provide in an accurate and complete manner all information necessary for us to comply with the Integrity, Notification and Fairness in Online Retail Marketplaces for Consumers Act,5 U.S.C. §45(f) (the "INFORM Consumers Act") and update such information as necessary for us to remain in compliance with the INFORM Consumers Act.
e. You will provide and maintain valid email address(es), and update such address(es) as necessary, for us or Purchasers to send inquiries and you will receive such emails and provide a reply by end of the following business day. We and Purchasers must also be able to receive a non-automated response within one business day, when necessary.
f. You will notify us of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Product within two business days of your receipt of such complaint. You shall assist us, at your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by us to respond to and/or resolve such complaints.
g. We will collect and remit state or local transfer taxes for any retail transaction (including but not limited to sales or use tax) where it believes it is legally required to do so. Where we do not collect and remit state or local transfer taxes on a transaction, you may have the legal obligation to pay such taxes. Such obligation may arise as a result of your existing or past physical contacts with a state (including but not limited to your provision of a "drop ship" delivery of the physical Product to a buyer located in a state). You may wish to consult a tax professional to determine if you will have this type of obligation in any particular state. You agree that if such an obligation arises with respect to any particular state, you will be solely responsible for the timely payment of such tax and any interest or penalties.
h. If and to the extent you use third-parties to provide Products, you and such third parties must be in compliance with all terms of this Agreement, and You are responsible for all acts and omissions of such third-party.
i. All sellers must include the required disclaimers and comply with the requirements set forth on the Program Policies Page.
j. You will comply with all applicable laws, rules, and regulations.
4. SELLER CANCELLATION AND RETURN POLICY.
a. We are not the seller of the Products you choose to register with the Affiliate Program. All Customer Transactions, including purchases, cancellations and returns are conducted directly between you and the individual Customer. We do not take ownership of, ship, or handle the Products you register with the Affiliate Program.
b. You will establish an appropriate return, replacement and/or cancellation policy for your Products ("Seller Return Policy"). Your Seller Return Policy must fall within the range of "no refunds" to allowing refunds or replacements up to forty-five (45) days after the date of purchase (i.e., a 30-day refund policy would be acceptable, if appropriate). If you believe that a Seller Return Policy longer than forty-five (45) days after the date of purchase is appropriate for your Products, we will review such a request, and in its sole discretion, may allow an extended Seller Return Policy. You can only provide such an extended Seller Return Policy with our written consent.
c. You will ensure that the Seller Return Policy is clearly and conspicuously posted for customers to review prior to purchasing your Products.
d. We reserve the right to alter or override your Seller Return Policy if you abuse our flexible Return and Cancellation Policy, if your Seller Return Policy is not appropriate for the Product(s), if the returned or charged back sales are excessive, or for any other reason we deem appropriate, in its sole discretion.
e. As an intermediary, we are not responsible for the fulfillment, quality, delivery, cancellation, or return of products purchased through the Affiliate Program. Any disputes or issues related to cancellations, returns, or refunds must be resolved directly with the Customer. We disclaim all liability for Customer Transactions, including but not limited to product defects, shipping delays, or non-delivery.
5. PROHIBITED PRODUCTS.
Offering of any of the prohibited products may result in the immediate suspension or termination of all of your activities on the Affiliate Program (including non-offending activities) and the forfeitures of any account balance owed by us.
You agree and acknowledge that:
a. Subject to the terms and conditions of this Agreement and our policies and procedures, we shall use commercially reasonable efforts to provide the Services in a manner that will not disrupt your business. You acknowledge and agree that from time-to-time the Services may be inaccessible or inoperable, including, without limitation, due to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that we may undertake from time to time; or (iii) causes beyond our reasonable control or that are reasonably unforeseeable by us, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we are not liable for any periodic interruptions in availability of the Services and further acknowledge that we do not guarantee access to the Services on a continuous and uninterrupted basis.
b. We may decline, delist, or halt sales or Promotion of any Product from the Marketplace, suspend funds, adjust Commissions based on performance, close an account, suspend or terminate the Services at any time, in our sole discretion, without cause or notice to you or any penalty or liability for doing so.
c. We, in our sole discretion, may suspend or terminate your account and your rights to use the Services and we may retain any or all funds (including future funds that may accrue) in your account, if: (i) we suspect or has reason to believe, or if a person otherwise claims that you have violated the law or breached any term of this Agreement; (ii) your account becomes dormant, or (iii) or your account experiences or is reasonably anticipated to experience a negative balance. Upon such termination, you agree to immediately cease all use of the Services and intellectual property licensed pursuant to this Agreement. Without limiting the foregoing, we shall have the right to immediately terminate your access and use of the Services, or any portion thereof, and to seize funds in your account, in the event of any conduct which we, in our sole discretion, consider to be unacceptable.
d. Following suspension or termination of an account or retaining of funds pursuant to this Section, we will review your account in a manner determined by us in our sole discretion. You agree to cooperate with this review, if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, you agree that we may retain funds in your account as liquidated damages and for the benefit of us or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (i) are not a penalty, and (ii) are reasonable and not disproportionate to such presumed damages to us.
e. We may withhold any portion of the funds in your account if we, in our sole discretion, determine such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness you may have incurred with us or any other person or entity.
7. EMAIL, TEXT MESSAGES AND TELEMARKETING.
a. If you send, or cause to be sent any emails in connection with the direct or indirect Promotion or sale of any Product or your use of the Services, then you agree, acknowledge, represent and warrant that all such emails shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") and the Children's Online Privacy Protection Act ("COPPA") (Information on these laws can be found at http://www.ftc.gov/spam/ and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
b. You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
c. If you send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product or your use of the Services, then you represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and state laws regarding anti-spam, text messages and Do-Not-Call Registries (Information on these laws can be found at https://www.fcc.gov/sites/default/files/tcpa-rules.pdf, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email, and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
d. You may not use customer information for any purpose not expressly permitted by law, regulation, the Promotional Guidelines, and this Agreement. Any use of customer information other than as expressly permitted may result in termination of your account, in addition to any other legal actions or remedies we or individual data subjects may have.
8. GRIN'S IP RIGHTS.
a. Except as expressly set forth in this Agreement, You may not use the “Grin” or “Gia” name, trademarks, service marks, or any other IP Right of Grin (collectively, the “Grin Marks”) in any manner whatsoever to suggest association or affiliation with or endorsement by Grin or Gia without the express prior written consent of Grin, which may be withheld in Grin’s sole discretion. Promotional use of images or reproductions of payment checks issued by Grin without the express, written consent of Grin is prohibited.
b. Subject to the following terms and conditions, during the term of this Agreement Grin grants You a limited, revocable license to use the Grin Marks: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text (iii) as a sub domain or second or third level domain name identifier; (iv) to identify Products or (v) in connection with Promotions.
c. Grin may revoke the foregoing license and/or provide restrictions upon your use of the Grin Marks, including requiring the use of such disclaimers as Grin may provide, in connection with your use of the Grin Marks, at any time and for any reason in Grin's sole discretion.
d. Failure to comply with any restrictions imposed by Grin upon your use of the Grin Marks or failure by you to immediately cease all use of the Grin Marks if so, instructed by Grin shall constitute: (i) a breach of the limited license set forth in this Section 8; and (ii) a breach of this Agreement. In such case, Grin reserves the right to pursue any and all remedies available to it at law or in equity.
e. You may not use or display the Grin Marks in any manner to disparage Grin, the Gia Affiliate Program or the Services.
f. Notwithstanding the limited revocable license set forth in Section 8, as between the parties, Grin shall be and remain the sole owner of all right, title and interest in and to the Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed, or controlled by Grin, and you hereby assign to Grin all right, title and interest you may be deemed to have therein. All rights not specifically granted to You under this Agreement are expressly reserved by Grin.
a. In connection with this Agreement, we may disclose to you and you may otherwise receive or have access to sensitive, confidential, or proprietary information of ours (collectively, "Confidential Information"), including, but not limited to (i) the identities of other sellers or Affiliates of Grin (collectively, "Clients"); (ii) physical and data security information; (iii) technical data; (iv) Marketplace statistics and sales data; or (v) know-how or business information relating to business processes, methods, or marketing strategies. Except as required to perform your obligations under and in accordance with the terms of this Agreement, You shall not (A) disclose the Confidential Information to any person or entity, or (B) use the Confidential Information (whether for your own benefit or the benefit of any other person or entity), without our express prior written consent. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, our Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with us or the Services, including without limitation the functionality offered by the Gia Affiliate Program. You agree and acknowledge that we may be required to provide to governmental agencies or other third parties information in its possession regarding You or the business You conduct with us.
b. We do not invite and cannot accept any ideas or information You consider to be confidential or proprietary. Except with respect to your personally identifiable information (as expressly provided for in the Grin Privacy Policy, any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered or transmitted by You to us, or otherwise in connection with the Services (collectively, the "Submissions"), shall be deemed to be non-confidential and non-proprietary and we shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in a writing executed by You and a duly authorized officer of Grin. You hereby grant to Grin and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. We shall have no obligation to compensate You for any such Submissions in any manner. You hereby represent and warrant that: (i) You own or otherwise have the right to grant the foregoing license to us with respect to your Submissions; and (ii) your Submissions and any use thereof by Grin will not infringe or violate the rights of any person or entity. You are and shall remain solely responsible for the content of any Submissions You make and acknowledge that we are under no obligation to respond to or use any Submission You may provide.
10. EXPORT CONTROL.
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act, and regulations issued pursuant to these and other U.S. laws. You hereby represent and warrant that any Product Promoted, offered and/or provided by You via the Services is approved for export to and from the United States without additional authorization or licensing from the U.S., or any other, government. Should the export authorization status of your Products change, You must immediately notify us in writing. Information on U.S. export control regulations can be found on the Commerce Department's website at http://www.bis.doc.gov, the State Department's website at http://www.pmddtc.state.gov and the U.S. Treasury Department's website at http://www.treas.gov/offices/enforcement/ofac/index.shtml.
11. REQUIRED PERMITS.
It is your sole responsibility to obtain and maintain all applicable licenses and permits required for the operation of your business.
You represent, acknowledge and warrant that:
a. You, your Products your Promotions, and/or your Submissions, as applicable, do not and will not, directly, or indirectly: (i) violate the right of privacy or publicity of any person or entity; (ii) contain any libelous, obscene, indecent, or otherwise unlawful material; (iii) infringe any IP Rights in any jurisdiction or otherwise contravene any rights of any person or entity; (iv) violate any laws, FTC rules, regulations, guidelines, or industry standards; or (v) violate the Grin Privacy Policy.
b. You may not: (i) frame, copy or mirror any content forming part of the Services; (ii) reverse engineer the Services or otherwise attempt to derive its source materials; (iii) access the for the purpose of (a) building a competitive product or service, or (b) copy any features, functions or graphics of the Services; (iv) interfere with or disrupt the Services or any data contained therein; (v) attempt to gain unauthorized access to the Services, its related systems or networks; or (vi) use the Services for any unlawful purpose or in violation of the rights of any person or entity.
13. INDEMNIFICATION.
To the fullest extent permitted by law, You agree that:
a. In the event a third party makes any demand or complaint, or commences any action, or files any claim whatsoever ("Claim") in connection with your use of the Services, your Products, or your Promotions, You shall defend, indemnify, and hold harmless Grin, its related parties and its and their affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the "Grin Parties"), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys' fees and costs) ("Losses") incurred by any Grin Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
b. Upon receiving notice of a Claim for which we are entitled to indemnification by You, we shall provide You with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle or defend the Claim at your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on, or admission or finding of liability or wrongdoing by us will require our prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve You of your indemnification obligations; and (iii) we may have our own counsel present at and participating in all proceedings or negotiations relating to a Claim, at our own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to our use of counsel.
c. In the event that we incur costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to your Products or Promotions, including copyright infringement complaints under the DMCA, we reserve the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to You by us up to a maximum of ten thousand dollars ($10,000) per event. In the event that we incur any Losses relating to your violation of our Email/Text Message/Telemarketing policy, as set forth in this Agreement, we reserve the right, in our sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to You by us up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that we retain all rights to indemnification described herein. You authorize Grin to make, and release Grin from any liability in connection with, any such deductions.
14. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ANY GRIN PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT OR ANY (A) USE OF OR INABILITY TO USE THE SERVICES, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, WHETHER OR NOT GRIN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF THE GRIN PARTIES FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY GRIN TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF THE GRIN PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
15. DATA PROCESSING; INTERNATIONAL DATA TRANSFERS; LEGAL BASIS FOR PROCESSING PERSONAL DATA.
a. You agree to comply with all data protection laws and regulations, including the data protection regulations of the EU and the UK, the General Data Protection Regulation (“GDPR”). You agree not to market to persons subject to GDPR who have not consented to receive marketing communications.
b. Persons subject to GDPR are entitled to demand that You take certain actions with respect to their data, including, without limitation, that You delete it, correct it, or restrict processing of it. If You receive a data request from a person subject to GDPR, or if we receive any such request with respect to data You are processing, You agree to honor the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
c. If You receive any personal data from us or process personal data on our behalf, You will: (i) implement appropriate technical and organizational measures to ensure the security of the data; (ii) only process personal data for purposes approved by us (iii) cease processing such data upon request from us; (iv) transfer such data only for purposes authorized by law, with prior notification to us, and only pursuant to an appropriate sub processing agreement; (v) indemnify us for any claim, expense, demand or cost related to your receipt or use of such data; and (vi) upon request, provide us with information sufficient to demonstrate your compliance with this Section, and allow us to audit your data practices if necessary in our sole discretion.
The parties acknowledge that in connection with the Affiliate Program, each party may provide or make available to the other party Personal Data. Each party shall process the copy of the Personal Data in its possession or control: (i) in accordance with this Agreement and the Grin Privacy Policy (ii) for the purposes described in this Agreement; and/or (iv) as may otherwise be permitted under Applicable Data Protection Law.
International Data Transfers. We reserve the right to store and process your Personal Data in the United States and in any other country where we or our affiliates, subsidiaries, or service providers operate facilities in compliance with and as permitted by applicable laws and regulations. Some of these countries may have data protection laws that are different from the laws of your country and may offer less legal protection. When we transfer, store, or process Personal Data outside of your jurisdiction, including to or in the United States, we take appropriate safeguards to protect your Personal Data in accordance with this Policy and applicable law.
Some recipients of your Personal Data are located in countries outside the EU/EEA, UK, and/or Switzerland that are not subject to an adequacy decision, which means that these countries are not recognized as having an adequate level of data protection under the EU/EEA, UK, and/or Swiss data protection laws and the transfer of Personal Data is therefore not permitted under the General Data Protection Regulation (EU) 2016/679 (the “EU’s GDPR”), the Data Protection Act 2018 (the “UK GDPR”), and/or Swiss Federal Act on Data Protection (the “Swiss FADP”). In these cases, we may use the following to transfer your Personal Data to the United States and elsewhere:
We offer a Data Processing Agreement for those Creators processing Personal Data on behalf of EU/EEA, United Kingdom, Swiss, and other individuals. To request our Data Processing Agreement, please contact privacy@grin.ai.
Legal Basis for Processing Personal Data. Under the EU’s GDPR, the UK GDPR, and the Swiss FADP, we generally act as a processor on behalf of our Customers. When we process Personal Data as a data controller, we do so on the following legal bases:
a. To perform our contract with you for the use of the Services;
b. In reliance on our legitimate interests in administering, operating, and supporting the Services;
c. In reliance on our legitimate interests in providing certain features;
d. In reliance on our legitimate interests in enforcing this Agreement and applicable law;
e. In reliance on our legitimate interests in preventing fraud and abuse;
f. In reliance on our legitimate interests in meeting legal requirements;
g. In reliance on our legitimate interests in improving the Services;
h. In reliance on our legitimate interests in supporting our marketing activities;
i. In reliance on our legitimate interests in providing network and information security; and
j. You provided us your consent.
16. NO GUARANTEE OF VALIDITY.
We do not endorse, approve, or certify any information provided on or through the Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Services may or may not be current as of the date of your access, and we have no duty to update and maintain such information. Additionally, the information provided on or through the Services may be changed periodically without prior notice. All content provided on or through the Services is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
17. NO PROFESSIONAL ADVICE.
We may provide professional information (for example, financial, or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the Services. You understand that our employees, representatives, or agents do not provide advice pursuant to the authority of professional certifications or licenses and you will not treat information provided by employees, representatives, or agents as such. You further understand that by receiving information, facts, or opinions on or through the Services, you are not entering into a relationship with us, nor our employees, representatives, nor agents that entitles you to client privileges that may be associated with any professional certifications or licenses.
18. DISCLAIMER.
YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE SERVICES. THE SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND WE DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER US NOR OUR RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE SERVICES.
19. DIGITAL MILLENNIUM COPYRIGHT ACT.
If you are a copyright owner or an agent thereof and believe that any Program Content or Seller Data infringes upon your copyrights, please follow this take down procedure:
It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). We do not make judgments about the veracity of intellectual property infringement claims or adjudicate such claims. If the information you are complaining about is located on a third party site or application, then you should contact that third party site or application. Please be aware that, in order to be effective, your notice of claim must comply with the detailed requirements set forth in the DMCA. You are encouraged to review them (see 17 U.S.C. § 512(c)(3)) in order to include substantially all of the Elements of Notification set out in the DMCA (see 17 U.S.C. § 512(c)(3)) before sending your claim.
You may submit a notification pursuant to the DMCA by contacting our designated Copyright Agent at:
Grin Technologies Inc.
901 H St Ste 120, Sacramento, CA 95814
Attention: Legal Department
legal@grin.ai
Upon receipt of notice of claimed infringement notice, we will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Please be advised the DMCA requires that we send a copy of your complaint to the alleged infringer. Please do not send any other communications to the Designated Agent, who is appointed solely for the purposes of receiving notices of copyright claims under the DMCA.
20. GENERAL TERMS AND CONDITIONS.
a. Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the State of California, without regard to its principles of choice of law. Each party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in Sacramento, California. Each party hereby expressly and irrevocably submits to the personal jurisdiction of such courts for the purposes of any such action.
b. English As Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by us are for informational purposes only and it is your obligation to obtain independent legal advice at your own expense to ensure you understand the terms of this Agreement.
c. Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary, or similar relationship between the parties. You are prohibited from making any promise, warranty, or representation on behalf of us or obligating us in any way. You may not represent to any person or entity that you are the agent of us or are authorized to act on its behalf.
d. 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.
e. Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
f. Publicity. You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using our name or referencing the Services; or (iii) suggesting or implying any endorsement by us of you and/or any Products without our prior written approval, which we may withhold in our sole discretion. You hereby authorize us to include your name, business name, and general information about your use of the Services in our marketing and promotional materials.
g. Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this subject matter. We reserve the right to amend this Agreement at any time. When we amend this Agreement, we shall make reasonable efforts to provide you with general, not specific, notice of such changes by posting a conspicuous announcement at https://grin.ai/affiliate-program-seller-agreement that such changes or amendments have occurred and identifying which particular provisions have changed. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment. your continued use of the Services, following the posting of such amendment will signify and be deemed your assent to and acceptance of the revised Agreement. You agree that you are responsible for reviewing this Agreement periodically to be informed of any such changes.
h. Waiver. The waiver or failure by us to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of us set forth in this Agreement are cumulative and are in addition to any rights or remedies we may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
i. Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to us which would not be adequately compensated by monetary damages and that we may seek injunctive relief, specific performance, and other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of California or any other court of competent jurisdiction anywhere in the world (at our sole discretion), and, you hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
j. 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.
k. 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 Grin Technologies Inc.: 901 H St Ste 120, Sacramento, CA 95814
Attention: Legal Department with a copy to: legal@grin.ai
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you.
l. Headings/Interpretation. The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
m. Survival. Any terms that by their language and understanding are intended to survive expiration or termination, shall survive termination or expiration of this Agreement.