This Affiliate Agreement and the 360 Brand Marketing LLC Terms of Service incorporated herein by reference (collectively the “Agreement”) govern your activity, application to join, and any subsequent participation in, 360 Brand Marketing LLC's Affiliate program (the “Program”). By accepting the Terms of Service, or by participating in the Program, you also agree to be bound by the terms herein. This Agreement is a binding legal agreement between the individual who accepted its terms or the business entity that the individual represents (“Affiliate,” “You” or “you”) and 360 Brand Marketing LLC (“360 Brand,” “we” or “us”). If You represent a business entity, you represent and warrant that you have the authority to bind that entity to this Agreement. 360 Brand reserves the right to modify the Agreement at any time. Your continued participation in the Program shall be deemed acceptance of any new versions of the Agreement.
SECTION 1. PROGRAM APPLICATION
You agree to provide all information reasonably requested by 360 Brand in connection with Your Program application, and You represent and warrant that all information that You provide is truthful and accurate. You understand and agree that 360 Brand retains sole and exclusive discretion to determine whether You qualify for participation in the Program. 360 Brand reserves the right to change its criteria for the Program at any time, for any reason. You expressly consent to be contacted about your application and the Program via the email address and the phone number You provide in Your application. Such forms of contact may include but are not limited to automated dialing systems, texts and artificial or pre-recorded messages. You may revoke this consent at any time by submitting such revocation in writing to firstname.lastname@example.org.
SECTION 2. PROGRAM RULES (THE “RULES”)
SECTION 3. COMPENSATION
SECTION 4. INTELLECTUAL PROPERTY RIGHTS
360 Brand Marketing LLC may provide you with certain resources and materials (such as white-labeled courses, powerpoints, pitch decks, website templates, images, social media posts, etc.) to be used in connection with your participation in the Program (collectively, “360 Brand Marketing Materials”). You acknowledge our ownership of the 360 Brand Marketing Materials, agree that you will not do anything inconsistent with our ownership, and agree that all of your use of the 360 Brand Marketing Materials (including all associated goodwill) will inure to the benefit of, and on behalf of 360 Brand Marketing LLC. If requested, you agree to assist us in recording this Agreement with appropriate government authorities. You agree that nothing in this Agreement gives you any right, title, or interest in the 360 Brand Marketing Materials other than the right to use them in accordance with this Agreement. You also agree that you will not attack our rights in or title to the 360 Brand Marketing Materials or the validity of said materials or this Agreement.
All rights with respect to the Services and 360 Brand Marketing LLC’s name and trademarks, whether now existing or which may hereafter come into existence, which are not expressly granted to Affiliate herein are reserved to 360 Brand Marketing LLC. Any goodwill generated through Affiliate’s use of 360 Brand Marketing LLC’s name and trademarks shall inure solely to the benefit of 360 Brand Marketing LLC. Except as set forth in this Agreement, the Affiliate may not use 360 Brand Marketing LLC’s name or trademarks without 360 Brand Marketing LLC’s prior written consent. The Affiliate will promptly notify 360 Brand Marketing LLC of any infringement or threatened infringement of any rights of 360 Brand Marketing LLC of which Affiliate becomes aware and will provide reasonable assistance to 360 Brand Marketing LLC, at 360 Brand Marketing LLC's expense, in connection therewith. Affiliate shall not promote or provide services to any other business or person that is infringing any of 360 Brand Marketing LLC's intellectual property. The Affiliate will use commercially reasonable means to protect the security of the Services on Affiliate’s system and network, including internal and public websites, from hacking or other unauthorized access, modification, or redistribution. Upon becoming aware of any breach in security, the Affiliate shall notify 360 Brand Marketing LLC and take prompt action to remedy such breach.
SECTION 5. TERM AND TERMINATION
SECTION 6. ADDITIONAL REPRESENTATIONS AND WARRANTIES
In addition to Your other representations and warranties herein, You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against You by the Federal Trade Commission (“FTC”), any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against You which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If You become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, You are required to notify 360 Brand Marketing LLC of the same within 24 hours. 360 Brand Marketing LLC, in its sole and exclusive discretion, may immediately terminate Your participation in the Program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph.
SECTION 7. ENTIRE AGREEMENT
This Agreement represents the entire agreement between the Parties with regards to the Program and supersedes any other written or oral agreement between the parties. In the event that you have executed a separate written agreement related to the Program, that separate agreement shall prevail in the event of a conflict between it and this Agreement.
SECTION 8. INDEPENDENT CONTRACTOR
Affiliates are independent contractors of 360 Brand Marketing LLC. It is the express understanding and intention of the Parties that no relationship of employee/employer nor principal and agent shall exist between 360 Brand Marketing LLC and You by virtue of this Agreement. You have no right to act on behalf of or bind 360 Brand Marketing LLC in any way, nor share in the profits or losses of 360 Brand Marketing LLC. The only compensation available to You is set forth in this Agreement. You are solely and exclusively responsible and liable for all of Your acts or omissions.
SECTION 9. DISCLAIMER
360 Brand Marketing LLC does not promise, guarantee, or warrant Your business success, income, or sales. You understand, acknowledge, and agree that 360 Brand Marketing LLC will not at any time provide sales leads or referrals to You. You understand and agree further that this is not a business opportunity, a franchise opportunity, a “business-in-a-box,” or an assisted marketing plan.
SECTION 10. LIMITATION OF LIABILITY
SECTION 11. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION, CLASS ACTION WAIVER, & GOVERNING LAW
Any dispute arising hereunder shall be settled by arbitration administered by the American Arbitration Association pursuant to its then-current rules. The arbitration shall be conducted before a panel of one arbitrator in Dallas County, Texas. The arbitration shall be conducted in the English language. The arbitrators will be bound to apply the laws of the State of Texas. The decision of the arbitrator(s) will be made in writing and shall be final and binding on the parties. Each party shall be responsible for its own costs with respect to the proceedings irrespective of the outcome. This Section provides the sole recourse for the settlement of dispute rising hereunder, except that either party may seek a preliminary injunction or other form of injunctive relief in any court of competent jurisdiction if, in its reasonable, good faith judgment, such action is necessary to prevent or curtail irreparable harm.
Furthermore, the parties agree not to bring any disputes between each other on a collective or class basis; rather, the parties agree to bring such disputes in arbitration on an individual basis only. An arbitrator may not resolve any disputes concerning the enforceability or validity of this class and collective action waiver; only a court with proper jurisdiction may resolve such a dispute. If this class action waiver is held to be illegal for any reason, the parties agree that a court, and not an arbitrator, will hear any class or collective action.
SECTION 12. INDEMNITY
You agree to protect, defend, indemnify and hold harmless 360 Brand Marketing LLC, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with (1) use of or reliance on information or data supplied or to be supplied by You (2) any breach of this Agreement by You (3) the use or possession of any 360 Brand Marketing LLC property by You, except to the extent caused by 360 Brand Marketing LLC’s gross negligence or willful misconduct (4) any negligence, gross negligence or willful misconduct by or on behalf of You or Your employees or agents.
SECTION 13. SEVERABILITY
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement and the Terms of Service, as so modified, shall continue in full force and effect.
SECTION 14. JUDICIAL ACTION FOR PROVISIONAL RELIEF
360 Brand Marketing LLC shall have the right to seek and obtain from any court of competent jurisdiction any equitable or provisional relief or remedy enforcing any right or interest it may have in connection with this Agreement, including without limitation a temporary restraining order, preliminary injunction, writ of attachment, order compelling an audit, or enforcement of any liens or security interests held by either party in the property of the other. No judicial actions permitted by this paragraph shall waive or limit the claiming party's rights to adjudicate the merits of the dispute by arbitration.
The parties hereby agree and acknowledge that any breach or threatened breach of this Agreement will result in irreparable harm to 360 Brand Marketing LLC for which there will be no adequate remedy at law. In addition to other remedies provided by law or at equity, in such event the non-breaching party shall be entitled to seek injunctive relief, without the necessity of posting a bond and without having to establish actual damages resulting from a breach, to prevent any further breach of this Agreement by the other Party.
SECTION 15. COMPLAINT NOTIFICATION
Affiliate must notify 360 Brand Marketing LLC of any complaint received by Affiliate regarding any advertisements within twenty-four (24) hours of receiving such complaint. Notice should be sent to the 360 Brand Marketing LLC Support Team. Visit [appropriate link] for information on how to contact support.
SECTION 16. FORCE MAJEURE
No party will be liable for nonperformance of any of its obligations under the agreement if its nonperformance was due to a Force Majeure Event as defined in of this Section if reasonable notice and good faith efforts to find a reasonable solution are provided. “Force Majeure Event” shall mean any act of God; war; riot; civil strife; act of terrorism, domestic or foreign; embargo; governmental rule, regulation or decree; flood, fire, hurricane, tornado, or other casualty; earthquake; strike, lockout, or other labor disturbance; the unavailability of labor or materials to the extent beyond the control of the party affected; pandemics, epidemics, local disease outbreaks, public health emergencies, and quarantines; or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing. Upon occurrence of a Force Majeure Event, the non-performing party shall, in a timely manner, notify the other party that a Force Majeure Event has occurred, its anticipated effect on performance.