Affiliate Program - Terms & Conditions
Last updated: February 17, 2021.
These CuralluxConnect Affiliate Program Terms & Conditions (the “Agreement”) contain terms and conditions that apply to your participation as an Affiliate (as that term is defined herein) in CuralluxConnect’s Affiliate Program (the “CuralluxConnect Affiliate Program” or “Program”) through CuralluxCOnnect’s Affiliate Network(s) (“Network”), and the establishment of links from your website or digital location (also referred to as “your site”) to the following:
• capillus.com and curavi.com
As used in this Agreement, “we” and “our” shall mean collectively, Curallux, LLC. and/or its parents, subsidiaries and related entities (as applicable), and “you” and “your” mean the Affiliate.
By submitting your CuralluxConnect Affiliate Program application and participating in the Program, you are confirming that you have read and understand this Agreement, you represent and warrant that you are lawfully able to enter into contracts, and you agree to be bound by, and will continue to comply with, these terms and conditions throughout the full duration of your participation in the Program. Additionally, you acknowledge and agree that by submitting your application, which may include clicking an acceptance box, the effective date of this Agreement will be the date on which you submit your application.
Curallux reserves the right to make changes to the CuralluxConnect Affiliate Program and this Agreement at any time, and such changes will be effective immediately upon being posted on the Dashboard.
As a condition of your participation in the Program, you must comply with all laws, rules and regulations applicable to your participation in the Program, including for example, the requirement to make proper and appropriate disclosures in compliance with the Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (“FTC Guidelines”). In addition to other measures that you take to comply with such guidelines, you must clearly and conspicuously state the following (or something very similar considering space and format available) as part of the messaging that contains a reference or link to Curallux: [INSERT YOUR NAME] is a participant in the CuralluxConnect Affiliate Marketing Program, an affiliate advertising and marketing program that pays advertising fees to sites that advertise and link to [INSERT APPLICABLE CURALLUX DOMAIN NAME].
MISUSE OF THE CURALLUX FAMILY OF BRANDS, PARTICIPATING IN PROHIBITED ACTIVITY AND/OR FAILURE TO COMPLY WITH THE CURALLUXCONNECT AFFILIATE PROGRAM AND THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY RESULT IN A LOSS, REDUCTION AND/OR OFFSET OF REFERRAL FEES FROM SALES MADE THROUGH ANY AFFILIATE OR SUB-AFFILIATE THAT DOES NOT COMPLY WITH OUR PROGRAM TERMS OR TERMINATION OF YOUR PARTICIPATION IN THE CURALLUXCONNECT AFFILIATE PROGRAM.
1. Enrollment In The Program
1.1. Enrollment Process. To begin the enrollment process, you must submit a complete Affiliate application through the Network. We will evaluate your application and will notify you of your acceptance or rejection for participation in the Program. We may reject your application if we determine (in our sole discretion) that your business is, as further defined in this Section (i) unsuitable for the Program for any reason, (ii) involved in prohibited activities.
If your Application is not accepted, you may reapply to the Program at any time. If you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement as well as your agreement with the Network. Even if you are accepted to participate in the Program and your site is thereafter determined (in our sole discretion) to be unsuitable based on our criteria for the Program, we may terminate this Agreement and you may no longer link to our site. Our acceptance criteria are subject to change at any time without prior notice.
1.2. Unsuitable sites. A business may be found unsuitable if it falls under any of the following conditions. Conditions are, but are not limited to, sites that:
• contain or promote materials that are sexually explicit or that could be deemed obscene, pornographic or excessively violent;
• Promote violence or hate towards any persons or groups;
• Promote discrimination based on race, sex, age, religion, nationality, disability or sexual orientation;
• Promote illegal activities;
• Promote the sale or use of tobacco products, alcohol products or gambling;
• Violate any federal, state or local law (including privacy and “spam” laws);
• Contain material that, in our sole judgment, is defamatory, fraudulent or harassing;
• Misrepresent themselves as a Curallux Web site by using the “look and feel” of or text from our site;
• Include “Curallux”, “Capillus”, “Curavi” or variations or misspellings thereof in their domain names;
• Otherwise violate intellectual property rights of Curallux family of brands or its affiliates;
• Infringe on Curallux’s family of brands or any third party’s intellectual property, publicity, privacy or other rights;
• Are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to our site;
• Excessively use pop-ups;
• Require downloads and/or knowingly download software to visitors’ computers;
• Link to or provide a portion of their commission or Affiliate benefits to sites or organizations that violate any or the above criteria;
• Are under construction;
• Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
• Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website; or
• Are otherwise considered, in Curallux’s sole judgment, offensive or inappropriate.
1.3. Prohibited Activity. Curallux may elect to reject your site if Curallux determines in its sole discretion that your site contains or otherwise involves prohibited activity. As a condition to your acceptance and participation in this Program, you agree that you will not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement and may result in immediate termination from the Program:
• Use the Curallux name or family of brand’s name, or any variation thereof, in any manner not expressly authorized by this Agreement;
• Use or otherwise incorporate the word “Curallux”, “Capillus”, “Curavi” or variations or misspellings thereof in the domain name(s) of your site(s), or in hidden text or source code;
• Bid on Curallux’s family of brands brand keywords, variations or misspellings, or keyword strings (e.g., ‘capillus’, ‘capillus.com’, ‘capillus.clearance’, ‘capillus.sale’, ‘capillus store’, or ‘capillus coupon’) in search engines or content networks;
• Use Curallux’s family of brands brand keywords, keyword strings or variations or misspellings thereof in the headline, display URL or description of pay-per-click ads or ads or content network ads;
• Use your Qualifying Links as the destination URL in any paid advertisement. This is also known as direct-linking.
• Use of the content network resulting in being ranked on Curallux brand keywords;
• Engineer your site in such a manner that pulls internet traffic, for Curallux’s family of brands brand keywords, away from capillus.com and curavi.com via natural search optimization. Techniques include:
o Using Curallux’s family of brands’ or Curallux brand keywords in the title tag, domain name, other meta tags, or other on-page factors that influence rankings;
o Engage in cookie stuffing, forced clicks, or the use of popups/popunders or false or misleading links on your site
o Use redirects to indicate the referring site was something it actually is;
o Attempt to modify or alter our site in any way;
o Make any representations, either express or implied, or create an appearance that a visitor to your site is visiting our site (e.g. “framing” capillus.com or curavi.com) without our prior written approval;
o “Scrape” or “spider” capillus.com or curavi.com or any other Curallux-owned site or application for Content (such as images, logos or text) unless you have Curallux’s express written consent;
o Post your qualified links on any of Curallux-owned platforms or social media accounts.
2.1. Links Usage. If you are accepted into the Program, we will make available to you Qualifying Links that, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your site as you desire.
2.2. Obtaining Links, Banners and Images. All Qualifying Links that you will use in the Program will be provided to you by the Network, Curallux’s Affiliates communication, or by other means selected by us. You also agree that you will display on your site only Content provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement.
2.3. Link Tracking. The Qualifying Link contains site-specific Network tracking information that identifies your site as a member of the Program and will establish a link from your site to Curallux’s family of brands sites. Only valid Qualifying Links obtained through the Network (or via an approved process if hosted outside of the Network’s platform) will be tracked for purposes of determining commissions that you may be eligible to receive on sales of Qualifying Products generated through your site.
2.4. Link Manipulation. Qualifying Links may not be manipulated in any way, including (a) redirecting links to hide or manipulate their original source; (b) Direct-linking, e.g. using your Qualifying Links as the destination URL in any paid advertisement.
2.5. Link and Offer Terms. The terms of an Offer (e.g. special instructions, exceptions, dates valid) will be posted on the Network’s site or otherwise communicated to you. In the event of any inconsistency between the communicated terms of the specific Offer and the terms of this Agreement, the terms of the Offer shall govern.
2.6. Misuse of Offer. Posting or releasing any information about how to work around the requirements of a coupon/promotion will result in immediate removal and termination from the Program.
2.7. Early Promotion. You may not post an Offer prior to the start and end dates indicated in the Offer terms without written consent by Curallux. Early Promotion without permission may result in immediate removal and termination from the Program.
2.8. Offer Discontinuation. At any time prior to you providing a Qualifying Link, we may with or without notice (a) change, suspend or discontinue any aspect of an Offer or (b) remove, alter, or modify any graphic or banner ad provided to you pursuant to an Offer. You agree to promptly implement any request from Curallux to remove, alter or modify any graphic or banner ad posted on your site.
2.9. Paid Media Placement. You may not use a Qualifying Link provided through the Affiliate Program on any paid placements made in partnership with another team at Curallux.
3. Promotion Codes, Coupons And Special Offers
3.1. Promotion Code Source. You are only allowed to use Curallux promotion codes that are communicated specifically to you via the Network on behalf of Curallux. If you use Curallux promotion codes from other sources (e.g., Curallux’s family of brands e-mails or other partner or non-partner communications), we may recover any Referral Fee payments resulting from the use of those codes.
3.2. Offer Visibility. Coupons must be displayed in their entirety with the full offer, offer exclusions or disclaimer test, valid expiration date and code.
3.3. Special Offers. From time to time, we may post on the Network specific Offers that pay Affiliates a specified commission for the sale of Qualifying Products. These Offers may not be listed on the Affiliates Fees site and may run for a short period of time.
4. Requirements And Disclosures.
4.1. Affiliate Link Disclosures. In compliance with the FTC Guidelines, you must clearly and conspicuously identify yourself as an Affiliate on all pages and social media forms where an Affiliate link occurs. You shall include a clear and conspicuous disclosure within any and all pages, blog/posts, or social media posts where affiliate links for our Affiliate Program are posted and where a reader or consumer may not understand that the link is a paid advertisement. You understand and agree that any messaging in contravention of the FTC Guidelines may result in your immediate termination and removal from the Program.
In addition, you must include a disclosure that complies with FTC Guidelines where (a) disclosures must be made as close as possible to the claims; (b) disclosures must be made on each page containing a sponsored link or reference to Curallux; a single statement on the site, or a separate page with your general disclosure statement is not an adequate disclosure; (c) disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure; and (d) social media posts must include appropriate hashtags. FTC Guidelines, including hashtags and disclaimer requirements are subject to change over time and it’s your responsibility to review and comply with current guidelines as policies may change over time.
Please review the FTC’s “Dot Com Disclosures” Guidelines at:
https://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; and the FTC’s Endorsement Guidelines at https://business.ftc.gov/advertising-and-marketing/endorsements.
4.2. SEM and SEO tactics. You are prohibited from engineering your site in a manner that ranks for Curallux or Curallux-owned brand keywords and product variants (e.g. “Capillus”, “CapillusPro”, “Curavi Laser Therapy”, etc.) via search engine optimization, including misspellings (e.g. “Capilus”, “Curevi”, etc.). You are prohibited from executing SEM tactics that include but are not limited to the following: bidding on Curallux or Curallux-owned brands or misspellings of the brands; using Curallux or Curallux-owned brands in a headline; display URL or description of pay-per-click ads. In addition, you agree to add Curallux brands terms and phrases as a negative to your campaign to avoid broad/phrase matching.
4.3. Site and Post Auditing. We reserve the right to audit your site without notice to ensure compliance with this Agreement and disclosures. We reserve the right to remove you from the Program if we determine you are not in compliance. You agree to provide Curallux with unrestricted access to your site for such purpose(s).
4.4. Curallux Site Modification and Asset Management. You are prohibited from altering or modifying Curallux-owned brand Domains or sites in any way. In addition, you are prohibited from scraping or crawling Curallux-owned sites or social media for Content such as images, logos, or text, unless you have Curallux’s express written consent.
4.5. Qualified Products List. Curallux will provide a a list of qualified products via Network that can be used to supply our Content to your website. You are prohibited from using Curallux’s qualified product list on a site other than the site you have been approved for. You are prohibited from distributing Curallux’s list of qualified products to a third party shopping site (e.g., Ebay, Google, Amazon, Walmart, or other third-party marketplaces), regardless of whether or not we are already advertising our products on that site. In addition you are prohibited from utilizing the products list to advertise via Shopping Ads on search engines.
4.6. Use Restrictions of Merchant API. Use of content consisting of application programming interface and information related thereto must be expressly permitted from Curallux and otherwise is expressly prohibited. You shall not access or otherwise use the API or the Information for any purposes.
5.Communication And Branding
5.1. Press Releases and other Marketing Material. You hereby agree that you will not make any references to Curallux or Curallux-owned brands or any individual Curallux employee, or issue any press release(s) or make any other public communication (written or verbal) regarding this Agreement, your use of Curallux’s Content, or your participation in the Program without having first submitting such material to us and receiving our prior written consent which we may withhold in our sole discretion.
5.2. Social Media. You are prohibited from posting your affiliate links to Curallux-owned platforms or social media pages (including but not limited to Facebook, Twitter, Pinterest, Instagram, etc.). According to current FTC guidelines, social media posts on your own social accounts must include appropriate hashtags. Hashtags and disclaimers are subject to change over time and it’s your responsibility to review and comply with current guidelines as policies may change over time.
5.3. Charitable Endorsements. If your site donates any portion of its commissions to any school, foundation or other charitable organization, you may not state or imply that Curallux endorses such activities or is responsible in any way for the inclusion and donation of funds to any of the schools, foundations or charities associated with your site. In addition, it is recommended that you seek tax and legal advice from your own counsel.
5.4. Email. Any emails must be sent on your behalf and must not state or imply that the email is being sent on behalf of Curallux. Any email containing Curallux Content or branding not sourced from the Network must be approved by Curallux prior to sending.
5.5 Communication with Curallux. If we ask you for clarification or more information on any Orders or clicks that we suspect may be in violation of our terms and conditions, we expect that you will respond in a timely and honest manner. Violations include (a) being intentionally vague or lying; (b) being unresponsive for a reasonable time period after multiple attempts to reach you; and/or (c) if you cannot substantiate or validate your source of traffic to our Program.
6. Development, Operation & Maintenance Of Your Site
6.1. Responsibilities. You are solely responsible for the development, operation and maintenance of your site and for all the content that appears on your site. Sole responsibilities include the following, in addition to those otherwise provided in this Agreement:
• The accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials);
• Ensuring that your site does not employ the use of any type of software download or technology that intercepts or re-directs traffic or referral fees to or from any website without the written consent of merchant;
• Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (e.g. including copyrights, trademarks, privacy, or other personal or proprietary rights);
• Notifying Curallux and the Network of any malfunctioning of the referral links or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement.
6.2. Sub-affiliate Networks. Sub-affiliate Networks may be permitted to participate in the Program with Curallux’s prior written approval, and at its sole’s discretion; provided, however, that you (i) must be completely transparent with regards to where traffic from your sub-affiliates originated, and (ii) must ensure that all sub-affiliates promoting the Curallux program adhere to and comply with the terms and conditions set forth in the Agreement or as otherwise provided to you. This includes restrictions on advertising through toolbars, browser extensions, and any paid placements such as a pay-per-click campaigns. You shall be fully responsible to the extent that any such sub-affiliate does not adhere to or comply with such terms and conditions. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the Program. Sub-affiliate networks, content monetization platforms, or third-party networks as classified by Curallux shall not engage in any solicitation, recruitment, or other activities with prospective or current Curallux affiliates by offering or exhibiting payout rates greater than those stated by Curallux.
7. Order Processing, Tracking, And Reporting
7.1. Processing Responsibility. Curallux will process orders placed by customers who follow Qualified Links from your site to a Curallux Domain in accordance with applicable legal requirements. We will be responsible for all order processing and fulfillment.
7.2. Order Requirements. We reserve the right to reject customer’s orders that do not comply with any reasonable requirements that we periodically may establish, including but not limited to those in Curallux-owned websites’ terms and conditions, viewable here: https://www.capillus.com/pages/satisfaction-guarantee and https://www.curavi.com/pages/terms-and-conditions.
7.3. Order Tracking. We will track sales to customers who purchase products from our site to your site using Qualified Links that you will generate using the Network’s technology. To permit accurate tracking, reporting and fee accrual, you must ensure that the links between your site and the Curallux Domain are properly formatted. Curallux will not be responsible for improperly formatted links regardless of whether you have made amendments to the code or not. Curallux is unable to track or provide credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled.
7.4. Reporting. Reports summarizing this sales activity will be available to you through the Network. The form, content and frequency of the reports are limited to those reports and capabilities available through the Network and may vary from time to time in our and/or the Network’s reasonable discretion. Curallux is not responsible for any changes that the Network may make in reporting format or timing or in the types of reports available.
7.5. Order Inquiry Window. If you believe an action did not track, you may create an action inquiry to provide the missing order details to Curallux for review. By passing an order ID to Curallux, you are asking Curallux to verify the order ID and credit your account if the action failed to track. This process is limited to actions which have occurred within the Action Locking period and orders falling outside of the Locking period will not be considered valid.
8.1. Commission Generation. You are only eligible to earn commissions on sales of Qualifying Products or Qualifying Actions occurring during the term of this Agreement. You will earn commissions based on the Net Price of Qualifying Products and/or on net new number of Qualified Actions, according to the current rates established by us and communicated to you upon acceptance of the Agreement. For a Qualifying Product or Action(s) to generate a commission, the customer must (a) use a browser that has its cookies setting enabled; (b) follow a Qualifying Link.
8.2. Qualified Products and Actions. Some items, brands, products, categories, or actions may not be eligible for Referral Fees. Please refer to your qualified products list for your specific rates and exclusions.
8.3. Site Re-Entering. We will pay a commission if the customer re-enters during the cookie window specified in the Offer through the Network UNLESS the customer re-enters through another Affiliate’s Qualifying Link or from another marketing link (i.e. paid search, social, email, or other marketing).
8.4. Commission Payment. Commissions are only considered for payment according to the dates and timelines detailed in these terms and conditions. All determinations of Qualifying Links and whether a commission is payable will be made by the Network and Curallux and will be final and binding.
8.5. Commission Payment Schedule: Qualified purchases will be audited and reconciled on a weekly basis and will be paid on a weekly basis during regular business hours. If payment date falls on a holiday, payments will be processed on the following regular business day.
8.6. Returns. If a customer returns a Qualifying Product that generated a commission, we will deduct the corresponding commission from your monthly payment. Commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned by a customer.
8.7. Reporting Interruptions. Reporting Interruptions. From time to time, the Network tracking for purposes of commissions may be interrupted by site releases or other activity initiated by or on behalf of Curallux. If the reporting of Affiliate conversion data to our Networks is hindered due to such interruption, Curallux will use commercially reasonable efforts to provide to the Networks such missing or interrupted affiliate conversion data.
9.1. Reselling. We have the right to cancel or withhold commissions for any Qualified Orders or Actions we suspect to be made with intent to resell and/or produce sales or actions that are made through fraudulent or illegal means.
10.2. Cancellations. We reserve the right to reverse orders or Qualified Actions due to cancellations, duplicate tracking, returns, disputed charges, and Program violations as outlined in this Agreement.
9.3. Violations. If a violation of this Agreement occurs we reserve the right to reverse orders, set your commissions Rate to 0% and/or suspend you from the program for the period or orders in question.
10. Customer Policies And Pricing
11.1.Customer Status. Customers who buy products through the Program will be deemed to be customers of Curallux, without affecting their status as your customer.
10.2. Customer Policies. All of our rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers when using our site. We may change our policies and operating procedures at any time in our sole discretion.
10.3. Product Price. We will determine the prices to be charged for products sold under the Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Due to occasional changes in price, you may not include price information in your site unless MSRP’s stated in the Curallux qualified products list are used. Curallux will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of our site or the Network’s platform.
11. Term And Termination
11.1. Program Term. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either party may terminate this Agreement at any time. In addition, Curallux may terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if Curallux determines, in our sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently or through misrepresentation, in which case we reserve the right to withhold payment of associated commissions pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. All rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
11.2. Offer Term. Either party may terminate an Offer at any time by deleting its acceptance of the Offer through the Network. Termination of a specific Offer shall not be deemed to terminate any other Offers.
12.3. Termination Requirements. Upon termination of this Agreement, you will immediately cease use of, and remove from your site, all affiliate links to Curallux-owned Domains and all Curallux-related Content. You agree to return to Curallux any and all documents or other media embodying Curallux-owned images, marks, or other intellectual property, and you agree that you will not (a) use any Curallux-owned names, or any variation thereof, in any manner not expressly authorized by us; (b) create, publish or distribute any materials, written or verbal, that make reference to Curallux-owned brands or any individual within Curallux, without first submitting such material to us and receiving our prior written consent, which we may withhold in our sole discretion; and (c) use any Curallux-owned name to disparage Curallux, its products or services, or in a manner that, in our sole judgment, may diminish or otherwise damage the goodwill in our name, Licensed Materials and/or our products and services.
12. Licenses And Use Of The Curallux-owned Logos And Trademarks
12.1. Trademark Usage. We grant you a non-exclusive, non-transferable, revocable license to (a) access our site Content through the Qualifying Links solely in accordance with the terms of this Agreement and (b) solely in connection with such Links, to use our logos, trade names, trademarks and similar identifying material designated in the Offer (collectively, the “Licensed Materials”), only as provided to you through the Network and solely for the purpose of generating the sale of Curallux products from your site. You agree to the limitations below:
• Each Curallux trademark must appear by itself and must be surrounded by sufficient empty space on all sides in order to avoid unintended associations with any other objects (including, without limitation, type, photography, borders and edges).
• You must include the following notice on any materials you create that include the Curallux logo or any Curallux-owned brand logo: The Capillus Logo or Curavi Logo are registered trademarks of Curallux, LLC.
12.2. Intellectual Property Rights. You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and all of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.
12.3. Licensed Material Usage. You shall not make any specific use of any Licensed Materials for purposes other than generating the sale of Curallux products from your site without first submitting a sample of such use to us and obtaining our prior written consent, which we may withhold in our sole and absolute discretion. Without limiting the foregoing, you may not use any Licensed Materials in direct mail or email without first submitting a sample of such use to us and obtaining our prior written consent, which we may withhold in our sole and absolute discretion.
You may use the Licensed Materials only for purposes expressly authorized by us and follow the below limitations:
• You may only include Licensed Materials in emails and newsletters that are approved in advance by us and are fully compliant with all applicable laws and regulations, including the CAN-SPAM Act. You may not alter, modify, or change the Licensed Materials in any way; for example, you may not change the proportion, color, or font of any trademark.
• You may not display the Licensed Materials in any manner that implies our sponsorship or endorsement of your products, services or site outside of your involvement in the Program.
• You may not use the Licensed Materials to disparage Curallux, its products or services, or in a manner that, in our sole judgment, may diminish or otherwise damage the goodwill in our name and the Licensed Materials.
• You may not use the Licensed Materials as a feature or design element of any other logo.
• Your use of any Curallux-owned brand name or logo shall be in a manner that is clearly less prominent than that of your products, trademarks, logos and/or site name.
• You may not copy any image on our site except for those links specifically provided to you under this Agreement.
12.4. Licensed Materials Guidelines. You understand and agree that Curallux,LLC., a related company of Curallux, owns the Licensed Materials and may be a necessary party in any undertaking to enforce this Agreement. We reserve the right in our sole discretion to modify these guidelines at any time with notice and the right to take action against and use that does not conform to these guidelines.
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE LICENSED MATERIALS, OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
14. Representations And Warranties
You hereby represent and warrant to us as follows:
This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby.
Any material displayed on your site will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulation; (c) be defamatory or libelous; (d) be lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, anti-discrimination or false advertising; (f) promote violence or contain hate speech; (g) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (h) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information related to this Agreement and/or to your participation in the Program, including, without limitation, the terms of this Agreement, our business and financial information, our customer lists, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, provided that, in cases involving (a) and (c), you give prior written notice to Curallux and allow Curallux to intercede on our own behalf to the extent that Curallux seeks to limit the disclosure.
16. Limitation Of Liability
You hereby agree that Curallux, including without limitation its respective directors, officers, employees, agents, shareholders, members, partners, licensees and licensees, will not be liable for any indirect, special, exemplary, consequential or incidental damages, or any loss of revenue, profits or data, arising in connection with this Agreement, the Program or the Network, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commissions paid or payable to you under this Agreement in the twelve months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred.
You acknowledge that by entering into this Agreement, Cuallux does not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your site(s). Accordingly, you hereby agree to indemnify, defend and hold harmless Curallux, our affiliates, licensees and licensors, and each of our respective directors, officers, employees, agents, shareholders and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including court costs and reasonable attorney’s fees) (any or all of the foregoing hereinafter referred to as “Losses”), even if such claims are groundless, fraudulent or false, that arise out of or are based on (i) any breach or alleged breach of any representation or warranty or breach of a covenant or agreement made by you, (ii) the content and/or activities of your site (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, (iii) your use and/or modification of any of the services or materials provided by us or Network in connection with this Agreement; and (iv) your or your employees’ negligence or willful misconduct.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Network or otherwise communicating such change to you. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures or Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE NETWORK WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
19. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with your Website. You have independently evaluated the desirability of participating in the program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
20.1. No Agency. You and Curallux are independent contractors, and nothing in this Agreement (including any Offer) will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on Curallux’s behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
20.2. Governing Law; Venue. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the United States and the State of Florida, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Miami-Dade County, Florida, and you irrevocably consent to the jurisdiction of such courts.
20.3. Notice. Any notices required or permitted by this Agreement must be delivered to Curallux via registered mail to:
Curallux, LLC Attn: Affiliate Program Manager
1715 NW 82nd Ave, Miami, FL 33126
with a copy to:
Curallux, LLC Attn: General Counsel
1715 NW 82nd Ave, Miami, FL 33126
Any notices required or permitted by this Agreement or communications in connection with the Program will be sent to you by Curallux via email at the address you provided in your Affiliate Application.
20.4. Severability; Interpretation. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. In the event of an inconsistency between the terms of this Agreement and the Network agreement terms and conditions, the terms of this Agreement shall govern.
20.5. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
20.6. Waiver. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
20.7. Equitable Relief. The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
20.8. Force Majeure. You acknowledge that Curallux’s and the Network’s servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond Curallux’s and the Network’s reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement.