RED ONX AFFILIATE MARKETING PROGRAM TERMS

By participating in Red OnX’s affiliate marketing program (the “Program“) or any Program activities, using the Platform (as defined below) or clicking “Sign Up” (or a similar box or button) when you sign up for an Affiliate Account (as defined below), you agree to be bound by the following Affiliate Program Agreement (the “Agreement“). The Agreement is between you, as Affiliate (as defined below, ), Red OnX L.L.C.. (“Red OnX“).

Each of Affiliate and Red OnX are a “Party,” and are together the “Parties“. Failure to comply with any provisions of the Agreement may result in a loss and/or reduction of Fees (as defined below) and/or Commissions (as defined below), which decisions shall be made by Red OnX in Red OnX’s sole discretion. Red OnX reserves the right to update and change the Agreement, including any Insertion Order (as defined below), by posting updates and changes to the Red OnX website and/or the Platform, as applicable, and/or by issuing a new Insertion Order. If a significant change is made, we will provide reasonable notice by email, posting a notice to the Red OnX website and/or the Platform, as applicable, and/or by issuing a new Insertion Order. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement addresses different types of Affiliate activities and applies to all Affiliates.
You must read, agree with and accept all of the terms and conditions contained in this Agreement, including Red OnX’s Privacy Policy ( https://redonx.com/legal/privacy-policy/) and Red OnX’s General Terms of Service ( https://redonx.com/legal/general-terms-of-service/) before you may become an Affiliate. For the avoidance of doubt, Red OnX’s Privacy Policy and Red OnX’s General Terms of Service form part of this Agreement and are incorporated by reference. For the purposes of the Program and this Agreement, all references to “Account” and “Services” will be deemed to refer to “Affiliate Account” and “Services or Affiliate’s participation in the Program”, respectively. You may also be required to agree to additional terms in an Insertion Order. In the event of a conflict or inconsistency between this Agreement and the Insertion Order, the Agreement will govern, to the extent of such conflict or inconsistency. In addition, some types of Program activities may require that you agree to additional terms (“Additional Terms“). Such Insertion Order and Additional Terms are incorporated into this Agreement by reference. In the event of conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Terms Applicable to All Affiliates

Definitions
Unless defined elsewhere in the Agreement, including the Insertion Order, capitalized terms set out in the Agreement are defined as follows:
"Affiliate Account" means a Program account.
"Affiliate Partner" is a Partner who has registered for an Affiliate Account via the Platform and who promotes the Service by registering, and being approved by Red OnX, for a Link to refer Merchants to Red OnX via such Link.
"Customer" means any individual that visits or transacts via the Merchant Store. The person that purchases products and services from a business using our solutions.
"Customer Data" means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.
"Link" or "Links" means text links, graphical hypertext links and other linking code obtained from the Platform which provide direct access to Red OnX’s websites and may be included on Websites in accordance with the Agreement.
"Merchant" means an individual or business that uses the Service to sell products or services. The business that purchases our solution.
"Merchant Agreement" means the agreement entered into between an Affiliate and the Merchant governing the Merchant’s use of the Affiliate’s services.
"Merchant Data" means information (including personal information) relating to a
Merchant, including but not limited to business, financial and product information and any Customer Data.
"Merchant Store" means the Merchant’s commerce presence hosted by Red OnX, including their online store and Point of Sale (POS). For clarity, a Merchant may have more than one Merchant Store.
"Partner" or "You" means an individual or entity that has agreed to the terms of this Agreement. Someone who promotes Red OnX to other businesses in exchange for compensation on purchases.
"Platform" means the management platform used by Red OnX.
"Referral Partner" is a partner that has some form of relationship with the partner, i.e., business consulting, solution provider.
"Referred Merchant" means any unique Merchant that: (a) has registered for a paid Red OnX account; and (b) was introduced by an Affiliate that actively promoted the Service.
"Red OnX Creative" means any marketing or promotional materials relating to Red OnX or Red OnX brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Red OnX Trademarks.
"Red OnX Related Entity/ies" means any entity that directly or indirectly controls, is controlled by, or is under common control with, Red OnX; where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
"Red OnX Trademarks" means the trademarks, logos, service marks and trade names of Red OnX Inc. and any Red OnX Related Entities, whether registered or unregistered, including but not limited to the word marks RED ONX and Red OnX.
"Reseller Partner" is a Partner who has registered for a Reseller Account Account with Red OnX and has permission to white label and sell Red OnX as a whole solution under their brand.
"Service" means the Red OnX hosted commerce platform available via www.redonx.com and any associated websites, products or services offered by Red OnX.
"Sub-Affiliate" is an affiliate that has been referred by and signed up under an existing affiliate.
"Taxes" means all taxes, federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.
"Websites" means any websites or platforms (including, without limitation, social media pages) that are owned, operated, managed or controlled by Affiliate.
FTC Guidelines
1. The Federal Trade Commission in the United States (“FTC“) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Program with Red OnX, Affiliate receives compensation for the Referred Merchant referrals made to Red OnX. This may establish a “material connection” according to FTC rules, which creates an obligation for Affiliate to provide disclosure to consumers.
2. Full compliance with these guidelines requires, among other things, that (a) Affiliate clearly and conspicuously disclose that Affiliate is being compensated for referring Referred Merchants to Red OnX, and (b) Affiliate not engage in misleading or deceptive advertising. For further information, Affiliate should refer to the statement released by the FTC regarding these guidelines.
Enrollment
1. Application. After Red OnX receives your application to participate in the Program, we will review the Affiliate Sites and notify you of your acceptance or rejection. Red OnX requests up to three (3) business days to review each application and reserves the right to accept or reject any application in our sole discretion.
2. Links. Upon acceptance into the Program, Links will be made available to Affiliate through the Platform. Affiliate agrees: (a) to only use Links obtained from the Platform; and (b) not to manipulate, alter or otherwise modify any Links (including, without limitation, any linking code).
3. Offer Codes. Upon acceptance into the Program, Offer Codes may be made available to Affiliate through the Platform. Affiliate acknowledges and agrees that Offer Codes must be displayed in their entirety. Affiliate further agrees: (a) to only use Offer Codes obtained from the Platform; (b) not to post any information about how to work around the requirements of the Offer Code (e.g., first-time customers only); (c) not to use any technology that covers up the Offer Code and generates the affiliate click by revealing the Offer Code; (d) not to advertise Offer Codes obtained outside of the Platform; and (e) not to state, imply or otherwise give the appearance that use of an Offer Code requires clicking from the Affiliate Site in order to receive the discount or other benefit of the Offer Code.
4. State and Country Residence and Solicitation Restrictions. The Affiliate program is only available in the United States of America.
5. Eligibility. Affiliate represents and warrants that neither Affiliate nor any employees or agents of Affiliate is an employee, family member of an employee or an entity directly or indirectly owned or controlled by an employee or family member of an employee, of Red OnX, or their subsidiaries, suppliers or advertising, promotion or fulfillment agencies (collectively, ” Restricted Entities“). Sub affiliates may not be an employee, family member of an employee or an entity directly or indirectly owned or controlled by an employee or family member of the referring affiliate. Restricted Entities are not permitted to be affiliates.
Affiliate Responsibilities
1. Marketing Activities
  1. Affiliate will bear all costs and expenses related to Affiliate’s marketing or promotion of Red OnX or any Red OnX Related Entity, and, as applicable, Affiliate’s Websites, or other products or services associated with Affiliate’s participation in the Program (collectively, “Affiliate Marketing Activities“) in any area, location, territory or jurisdiction, unless otherwise determined by Red OnX in its sole discretion.
  2. In no event will Affiliate engage in any Affiliate Marketing Activities except as expressly set forth in this Agreement. In conducting all Affiliate Marketing Activities, Affiliate will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”. Unless Affiliate has secured the applicable Merchant’s consent first, Affiliate will not email any Merchant whose email address they have received via Red OnX.
  3. Without limiting the generality of Section 3.1.2, Affiliate will (i) not send any email regarding Red OnX or Red OnX Related Entities to any individual or entity that has not requested such information; (ii) always include Affiliate’s contact information and “unsubscribe” information in any email regarding Red OnX, Red OnX Related Entities, the Service or the Red OnX platform; and (iii) not imply that such emails are being sent on behalf of Red OnX or Red OnX Related Entities.
  4. Affiliate will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Red OnX or Red OnX Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Red OnX or Red OnX Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Red OnX or Red OnX Related Entities; (iv) solicit Merchants to leave the Red OnX Service; (v) copy, resemble or mirror the look and feel of Red OnX’s websites, Red OnX Trademarks or Services or otherwise misrepresent Affiliate’s affiliation with Red OnX or Red OnX Related Entities; or (vi) engage in any other practices which may adversely affect the credibility or reputation of Red OnX or Red OnX Related Entities, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Red OnX or the Affiliate’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates the General Terms of Service.
2. Compliance with Laws
  1. In addition to, and without limiting the provisions of this Agreement, Affiliate will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations, including obtaining any licenses required in order for Affiliate to operate and to offer the products or services associated with Affiliate’s participation in the Program.
3. Affiliate Duty to Inform
  1. Affiliate will promptly inform Red OnX of any information known to Affiliate that could reasonably lead to a claim, demand or liability of or against Red OnX or the Red OnX Related Entities by any third party.
4. Affiliate Duty to Disclose
  1. If Affiliate is acting as an agent on behalf of a Merchant, then Affiliate will disclose to the Merchant any Fees that Affiliate is entitled to receive from Red OnX in accordance with this Agreement that are associated with such Merchant.
5. Other Affiliate Terms
  1. If Affiliate is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Affiliate activities.
  2. You confirm that you are becoming an Affiliate for the purposes of carrying on a business activity and not for any personal, household or family purpose.
  3. If you sign up for an Affiliate Account on behalf of your employer, your employer will be deemed to be the Affiliate for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Affiliate is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by Affiliate’s employees, agents or subcontractors.
  4. Affiliate acknowledges and agrees that Affiliate will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Affiliate.
  5. Affiliate acknowledges and agrees that Affiliate’s participation in the Program, including information transmitted to or stored by Red OnX, is governed by the Red OnX Privacy Policy found at https://redonx.com/legal/privacy-policy/
Fees and Payments
1. Commission Plans
  1. Attributable Subscribers. An ” Attributable Subscriber” shall be any subscriber to a Red OnX plan category (” Plan Category“) who: (a)(i) arrives on the Red OnX Site via a Link (the date of such arrival, the ” Landing Date“); (ii) has not visited the Red OnX Site prior to the Landing Date from any source (including, without limitation, any other affiliates in the Program) other than Affiliate Sites; (iii) becomes a subscriber within one hundred twenty (120) days after the Landing Date (the date of such subscription action in Pacific Standard Time, the ” Link Start Date“); and (iv) remains in good standing as a Red OnX subscriber for at least sixty-five (65) days following the Link Start Date; or (b)(i) subscribes to a Plan Category on the Red OnX Site using an Offer Code (the date of such subscription action in Pacific Standard Time, the ” Offer Code Start Date“; and (ii) remains in good standing as a Red OnX subscriber for at least sixty-five (65) days following the Offer Code Start Date. The eighty (80) day periods in the foregoing (b)(iv) and (a)(ii) shall be referred to herein as the ” Attributable Period.” As applicable, the Link Start Date and the Offer Code Start Date shall be referred to herein as the ” Start Date.”
  2. Commissions. Affiliate shall be paid commissions for Attributable Subscribers in accordance with the payment terms on the Insertion Order (” Commissions“). If you breach the Agreement or otherwise engage in any behavior which Red OnX deems improper, in each case as determined by Red OnX in its sole discretion, you will not receive any Commissions. Red OnX reserves the absolute right, which it may exercise at any time for any reason, without any liability to you, to cancel, reduce or reverse Commissions, modify the payment terms on the Insertion Order or suspend you from the Program.
  3. Non-Qualifying Subscribers. Affiliate acknowledges that no Commissions will be paid to Affiliate for: (a) any subscribers who Red OnX is unable to attribute to Affiliate; (b) a subscriber via a Link who visited the Red OnX Site prior to the Landing Date from a source other than Affiliate Sites; (c) any subscribers who otherwise do not qualify as an Attributable Subscriber; (d) any subscriber who had a Red OnX account in the previous twelve (12) months.
  4. Plan Changes. If an Attributable Subscriber moves to a cheaper Plan Category between the Start Date and the end of the Attributable Period, Red OnX shall pay Affiliate for the Plan Category to which the Attributable Subscriber is subscribed at the end of the Attributable Period.
  5. Taxes. Affiliate may not charge and Red OnX will not be liable for any income taxes imposed on Affiliate or any other taxes or charges assessed against Affiliate or associated with the operation of Affiliate’s business. Taxes may be deducted or withheld from any payments made to Affiliate hereunder as required by Applicable Laws, and payment to Affiliate as reduced by such deductions or withholdings will constitute full payment and settlement to Affiliate of such payment. Prior to Affiliate receiving any payments hereunder, Affiliate will upload all required tax documentation to the Platform. Additionally, Affiliate will provide Red OnX with any forms, documents or certifications as Red OnX may reasonably request. Any Affiliate located outside of the United States certifies that it will perform and has performed all Services outside of the United States.
2. Payment
  1. Affiliates are responsible for all applicable Taxes that arise from or as a result of any activities under this Agreement or with respect to Affiliate’s dealings with a Merchant. If Taxes are not collected by Red OnX in respect of an Affiliate transaction with a Merchant facilitated by Red OnX, Affiliate is responsible for determining if Taxes are payable on such transaction, and if so, self-remitting Taxes to the appropriate tax authorities.
3. Additional Payment Information
  1. All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld by Red OnX during the period of investigation. Red OnX may also withhold payment if Affiliate fails to provide Red OnX with information that is required to make payment.
  2. Notwithstanding anything to the contrary in this Agreement, Red OnX will not be responsible to pay any Fees:
    1. related to amounts that have been refunded to Merchants by Red OnX;
    2. for a Referred Merchant created or owned in whole or in part by Affiliate;
    3. related to fraudulent sales;
    4. related to revenues that have been subject to chargebacks;
    5. to Affiliates who are employed by Red OnX (whether full-time, part-time, term or any other employment-type relationship); or
    6. to Affiliates who are employed by the Merchant to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).
  3. If any Fees paid by Red OnX are subsequently discovered to be subject to one or more of the exclusions set out in Section 4.3.2, or to have been paid in error, Red OnX will have the right, at its sole discretion, to: (a) reclaim any Fees paid to Affiliate in error; or (b) set off the amounts described in Section 4.3 from payments due to Affiliate in the future. If the Agreement is terminated before such amounts are fully repaid by Affiliate to Red OnX, Affiliate will pay to Red OnX the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
  4. Red OnX reserves the right to modify the Fees or the payment terms at any time upon reasonable advance notice to Affiliate. Such notice will be provided by email, posting a notice on the Red OnX website and/or the Platform, as applicable, and/or by the issuing of a new Insertion Order. In the event of any disputes over Fees, Red OnX’s determination will be final and binding.
Termination
1. Termination
  1. Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.
  2. Fraudulent or other unacceptable behavior by Affiliate, including breach of the General Terms of Service (https://redonx.com/legal/general-terms-of-service/), End User License Agreement (https://redonx.com/legal/eula/), or Privacy Policy (https://redonx.com/legal/privacy-policy/), as determined by Red OnX in its sole discretion, may result in one or more of the following actions being taken by Red OnX: (a) termination of Affiliate’s affiliation with Merchants within the Affiliate Account; (b) suspension of some or all Affiliate privileges under the Program; and (c) termination of the Affiliate Account entirely without notice to, or recourse for, Affiliate.
  3. Red OnX reserves the right to cancel or modify the Agreement in its entirety, including Fees, at any time. If a significant change is made to the Agreement, including any material change to Fees, Red OnX will provide reasonable notice by email, posting a notice on the Platform.
2. Consequences of Termination
  1. Upon termination of this Agreement: (a) each Party will return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Red OnX Creative and all Confidential Information (as defined below)); (b)Affiliate will immediately cease displaying any Red OnX Creative or any Red OnX Trademarks on any Website or otherwise; and (c) all rights granted to Affiliate under this Agreement will immediately cease, including but not limited to the right of Affiliate to access the Affiliate Account and Platform, or to receive any payments of Fees under this Agreement, unless otherwise determined by Red OnX in its sole discretion.
  2. This Section 5.2 and the following Sections will survive any termination or expiration of this Agreement:
Intellectual Property Rights
1. Red OnX Creative
  1. All Red OnX Creative will be solely created and provided by Red OnX unless otherwise agreed to by Red OnX in writing in advance. Red OnX will provide Affiliate with copies of or access to Red OnX Creative. The Red OnX Creative may also be accessible from the Red OnX brand guidelines (“Red OnX Trademark Usage Guidelines“). By using the Red OnX Creative, you indicate your acceptance of our Red OnX Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license or permission to use the Red OnX Creative. The Red OnX Creative is provided “as is” and without warranty of any kind.
  2. Affiliate may display Red OnX Creative on the Websites solely for the purpose of marketing and promoting the Service and any Red OnX brands permitted by Red OnX and by Red OnX Related Entities during the term of this Agreement, or until such time as Red OnX may, upon reasonable prior notice, instruct Affiliate to cease displaying the Red OnX Creative. Affiliate may not alter, amend, adapt or translate the Red OnX Creative without Red OnX’s prior written consent. Nothing contained in any Red OnX Creative will in any way be deemed a representation or warranty of Red OnX or of any of Red OnX Related Entity. The Red OnX Creative will at all times be the sole and exclusive property of Red OnX and no rights of ownership will at any time vest with Affiliate even in such instances where Affiliate has been authorized by Red OnX to make changes or modifications to the Red OnX Creative.
2. Red OnX Trademarks
  1. During the term of this Agreement, Red OnX hereby grants to Affiliate a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Red OnX Trademarks solely as necessary to perform Affiliate’s obligations under this Agreement. Affiliate acknowledges and agrees that: (a) it will use Red OnX’s Trademarks only as permitted under this Agreement; (b) it will use the Red OnX Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Red OnX in writing from time to time, including but not limited to the Red OnX Trademark Usage Guidelines; (c) the Red OnX Trademarks are and will remain the sole property of Red OnX; (d) nothing in this Agreement will confer in Affiliate any right of ownership in the Red OnX Trademarks and all use thereof by Affiliate will inure to the benefit of Red OnX; (e) Affiliate will not, now or in the future, apply for or contest the validity of any Red OnX Trademarks; and (f) Affiliate will not, now or in the future, apply for or use any term or mark confusingly similar to any Red OnX Trademarks.
3. Restrictions on Affiliate’s Use of the Red OnX Trademarks.
  Notwithstanding Section 6.2, Affiliate will not:
  1. use the Red OnX Trademarks or variations or misspellings thereof in Affiliate’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services, unless granted express written permission by Red OnX in advance of each use; or
  2. purchase or register search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses or domain names that use the Red OnX Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Red OnX Trademarks.
4. Proprietary Rights of Red OnX
  1. As between Affiliate and Red OnX, the Red OnX Creative, Red OnX Trademarks, all demographic and other information relating to Merchants including Referred Merchants, prospective Affiliates, the Services, Merchant Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Red OnX or Red OnX Related Entities or otherwise related to the Service, the Program, Red OnX or Red OnX Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Red OnX Property“) will be and remain the sole and exclusive property of Red OnX. To the extent, if any, that ownership of any Red OnX Property does not automatically vest in Red OnX by virtue of this Agreement, or otherwise, and vests in Affiliate, Affiliate hereby transfers and assigns to Red OnX, upon the creation thereof, all rights, title and interest Affiliate may have in and to such Red OnX Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.
5. Red OnX’s Use of Affiliate’s Intellectual Property
  1. Affiliate grants to Red OnX a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and license to use and display in any manner the Affiliate’s trademarks, service marks, logos, trade names, copyrighted content, graphic files, images and other intellectual property, in connection with and for the purpose of performing its obligations and exercising its rights under this Agreement. In addition, at Red OnX’s discretion, Red OnX may use any such intellectual property for the purposes of promoting or marketing Affiliate, Affiliate’s products or services, or as otherwise agreed to with Affiliate.
Confidentiality
1. “Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between Red OnX and Affiliate, Merchant Data and Customer Data is the Confidential Information of Red OnX.
2. Each Party agrees to use the other Party’s/ies’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 7. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.
Disclaimer of Warranty
1. The Red OnX Affiliate Program, the Service, the Red OnX Trademarks, the Red OnX Creative, Ads (including delivery and related reporting) are provided “as-is”. Red OnX makes no warranties under this Agreement, and Red OnX expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, Red OnX further disclaims all representations and warranties, express or implied, that the Service, the Red OnX Trademarks, the Red OnX Creative satisfy all of Affiliate’s or Merchant’s requirements and or will be uninterrupted, error-free or free from harmful components.
Limitation of Liability and Indemnification
1. Limitation of Liability
  1. Red OnX, and the Red OnX Related Entities, will have no liability with respect to the Program, the Service, the Red OnX Trademarks, the Red OnX Creative or Red OnX’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Red OnX Trademarks, the Red OnX Creative, or Affiliate’s participation or inability to participate in the Program, even if Red OnX has been advised of the possibility of such damages. In any event, Red OnX’s, and the Red OnX Related Entities’, liability to Affiliate under this Agreement for any reason will be limited to the Fees paid to Affiliate by Red OnX during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and an Affiliate is strictly between the Merchant and the Affiliate, and neither Red OnX or the Red OnX Related Entities are obligated to intervene in any dispute arising between the Merchant and the Affiliate. Under no circumstances will Red OnX, or the Red OnX Related Entities, be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Affiliate’s relationship with any Merchant. These limitations will apply even if Red OnX or the Red OnX Related Entities have been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
2. Affiliate Indemnification
  1. Affiliate agrees to indemnify, defend and hold harmless Red OnX and any Red OnX Related Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party“, and collectively, the “Indemnified Parties“), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims“), to the extent that such claim is based upon or arises out of: (a) Affiliate’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Affiliate’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Red OnX and Red OnX Related Entities granted by Affiliate to any Merchant, prospective Affiliate or other third party; (d) Affiliate’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant Agreement; (e) any third party claim that Affiliate’s products or services infringes the intellectual property or other rights of a third party; (f) Affiliate Taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Affiliate’s products or services; (h) Affiliate’s relationship with any Merchant; and (i) any breach of applicable law by the Affiliate.
3. Notice of Indemnification
  1. In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Affiliate with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Affiliate will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Affiliate will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
4. Non-exclusive remedies
  1. In the event of any breach or threatened breach by Affiliate of any provision of Sections 3, 4.2.4, 6 or 7 above, in addition to all other rights and remedies available to Red OnX under this Agreement and under applicable law, Red OnX will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Affiliate’s access to the Program and the Platform, (c) receive a prompt refund of all amounts paid to Affiliate under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by Red OnX in connection with such violation, in accordance with the provisions of this Section 9.
General provisions
1. Force Majeure
  1. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.
2. Independent Contractors
  1. The Parties to this Agreement are independent contractors. Except with respect to the collection and transfer of payments, credits or refunds between Merchants and Affiliate, or as otherwise expressly stated in this Agreement, neither Red OnX or any Red OnX Related Entity is an agent, representative or related entity of the Affiliate. Neither Red OnX nor the Affiliate will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party, except where the Affiliate expressly authorizes Red OnX to act on its behalf in this Agreement. For the avoidance of doubt, Affiliate expressly authorizes Red OnX to act on its behalf for the purposes of collecting and remitting payment, credits or refunds between Merchant and Affiliate. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
3. Non-Exclusivity
  1. Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.
4. Notice
  1. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Affiliate’s email address listed in the Affiliate Account or as otherwise provided by the Affiliate to Red OnX, and to [email protected]; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice will be sent to the Affiliate at the address provided in the Affiliate Account, and to Red OnX at 304 South Jones Blvd, Suite 2524, Las Vegas NV 89017, Attention: Legal Department.
5. No Waiver
  1. The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.
6. Entire Agreement
  1. This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Red OnX nor the Affiliate will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
7. Assignment
  1. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Red OnX will be permitted to assign this agreement without notice to or consent from Affiliate. Affiliate will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without Red OnX’s prior written consent, to be given or withheld in Red OnX’s sole discretion.
Governing Law
1. The Agreement is between you and Red OnX LLC: (i) the Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to the conflicts of laws provisions thereof; and (ii) exclusive jurisdiction and venue for any action arising under the Agreement shall be in the federal and state courts located in Las Vegas, and both Parties hereby consent to such jurisdiction and venue for this purpose.
2. In any action or proceeding to enforce or interpret the Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
3. Competitive or Similar Materials
  1. Red OnX is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Affiliate’s products or services regardless of their similarity to Affiliate’s products or services, provided that Red OnX does not use Affiliate’s Confidential Information in so doing.
4. Feedback
  1. If Affiliate provides any feedback (including identifying potential errors and improvements) to Red OnX concerning the Program, the Red OnX Creative or any aspects of the Service (“Feedback“), Affiliate hereby assigns to Red OnX all right, title, and interest in and to the Feedback, and Red OnX is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Program, the Red OnX Creative or the Service and to create other products and services. Red OnX will treat any Feedback as non-confidential and non-proprietary. Affiliate will not submit any Feedback that it considers confidential or proprietary.
5. Service Providers
  1. Affiliate may work with service providers as necessary to facilitate Affiliate’s performance under this Agreement. Affiliate acknowledges and agrees that Affiliate is responsible for all of its service providers’ acts or omissions in relation to Affiliate’s performance of the Agreement, and any act or omission by Affiliate’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Affiliate.
6. Industry Standards
  1. Affiliate’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Affiliate System“) must be properly configured to Internet industry standards so as to securely operate Affiliate’s Website. If Affiliate does not completely control some aspect of the Affiliate System, Affiliate will use all influence that Affiliate has over the Affiliate System to do so. Affiliate must diligently correct any security deficiency and disconnect immediately any known or suspected intrusions or intruder.
  2. In addition, if Affiliate has access to Merchant Data, Affiliate: (i) will only use or store such information for the purpose of providing the Affiliate’s services to the Merchant to whom the Merchant Data relates, and will not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) will not communicate with Customers directly or indirectly, provided however that Affiliate may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) will only store such information for as long as reasonably necessary to provide the Affiliate’s services to the Merchant to whom the Merchant Data relates; (iv) will use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) will comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Affiliate’s provision of the Affiliate’s services; and (vi) will notify Red OnX of any actual or suspected breach or compromise of Merchant Data (a “Data Breach“) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Affiliate will: (A) promptly remedy the Data Breach to prevent any further loss of Merchant Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to Red OnX, the Red OnX Related Entities, Merchants or Customers; and (D) regularly communicate the progress of its investigation to Red OnX and cooperate to provide Red OnX with any additional requested information in a timely manner.
7. Severability
  If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.

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