Affiliate Agreement
By clicking on “I agree” (or a similar box or button) or participating in any Affiliate Program activities, you agree to be bound by the following Affiliate Program Agreement (the “Agreement”). The Agreement is between you, as Affiliate and Sonetel AB (publ), corporate identity number 556486-5847 (“Sonetel”). Each of Affiliate and Sonetel a “Party”, and together the “Parties”. You can review the current version of the Agreement at any time at sonetel.com. Sonetel reserves the right to update and change the Agreement by posting updates and changes here: sonetel.com. If a significant change is made, we will provide reasonable notice by email or by posting an update at sonetel.com or similar.
Sonetel’s Privacy Policy and Sonetel’s Terms & Conditions form part of this Agreement and are incorporated by reference. For the purposes of the Affiliate Program and this Agreement, all references to “Account” and “Services” in Sonetel’s Terms & Conditions will be deemed to refer to “Affiliate Account” and “Services or Affiliate’s participation in the Affiliate Program”, respectively.
1. Definitions
Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:
“End Customer” means any individual or business that interacts with the Referred Customer via the Sonetel Service..
“End Customer Data” means information (including personal information) relating to an End Customer.
“Referred Customer” means an individual or business that: (a) has made a payment to Sonetel and (b) was introduced by an Affiliate that actively promoted the Service.
“Referred Customer Data” means information (including personal information) relating to a Referred Customer, including but not limited to business, financial and product information and any End Customer Data.
“Affiliate” or “You” means an individual or entity that has agreed to the terms of this Agreement and participates in the Sonetel Affiliate Program and who promotes the Service by registering, and being approved by Sonetel, for a unique referral link (an “Affiliate Link”) to refer Referred Customers to Sonetel via such Affiliate Link..
“Affiliate Account” means:
a. A regular Sonetel customer account that has been upgraded to an Affiliate Account, or;
B. An account with ShareASale or another affiliate network provider used by Sonetel, which has been approved in writing by Sonetel to be acting as an Affiliate for Sonetel.
“Affiliate Program” means the resources made available by Sonetel to Affiliates.
“Revenue Generating Activity” means a revenue generating activity carried out by Affiliate, as determined by Sonetel, by introduction of a Referred Customer to Sonetel via Affiliate’s Affiliate Link. A Revenue Generating Activity will be attributed to Affiliate on the date the Referred Customer makes the initial payment to Sonetel. For more information regarding Revenue Generating Activities, please refer to sonetel.com
“Service” means the services described at and made available via www.sonetel.com and any associated websites, products or services offered by Sonetel.
“Sonetel Creative” means any marketing or promotional materials relating to Sonetel or Sonetel brands, including but not limited to copyrighted content, domain names, images and the Sonetel Trademarks.
“Sonetel Trademarks” means the trademarks, logos, service marks and trade names of Sonetel, whether registered or unregistered, including but not limited to the word mark Sonetel.
“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.
2. Affiliate Responsibilities
2.1. Marketing Activities
Affiliates will use their best efforts to promote and market Sonetel, and identify for Sonetel prospective Referred Customers.
Affiliate will bear all costs and expenses related to Affiliate’s marketing or promotion of Sonetel (collectively, “Affiliate Marketing Activities”) unless otherwise determined by Sonetel in its sole discretion.
In no event will Affiliate engage in any Affiliate Marketing Activities except as expressly set forth in this Agreement. In the event that Affiliate has a list of emails where the individuals on the list have expressly elected to receive emails from Affiliate (“Opt-in List”), Affiliate may make a written request to Sonetel to send emails regarding the offering of Sonetel to the individuals on the Opt-in List (and Sonetel may, in its sole discretion, allow Affiliate to send such emails). 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 Referred Customer’s consent first, Affiliate will not email any Referred Customer whose email address they have received via Sonetel.
Without limiting the generality of the above clause, Affiliate will (i) not send any email regarding Sonetel 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 Sonetel or the Service; and (iii) not imply that such emails are being sent on behalf of Sonetel.
An Affiliate will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Sonetel; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Sonetel; (iii) make any false, misleading or disparaging representations or statements with respect to Sonetel; (iv) solicit Referred Customers to leave the Sonetel Service; (v) copy, resemble or mirror the look and feel of Sonetel’s websites, Sonetel Trademarks or Services or otherwise misrepresent Affiliate’s affiliation with Sonetel; or (vi) engage in any other practices which may adversely affect the credibility or reputation of Sonetel, 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 Sonetel 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 Terms & Conditions.
An Affiliate will not promote or advertise Sonetel on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code;
use its Affiliate Link directly in any pay-per-click advertising;
purchase search engine or other pay-per-click keywords (such as Google Ads), trademarks or domain names that use the Sonetel Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Sonetel Trademarks;
create or participate in any third party networks or sub-affiliate networks without the express written permission of Sonetel;
use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
use direct linking to any page on any Sonetel website, without prior written permission from Sonetel; or
mask its referral sites or use deceptive redirecting links.
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 Affiliate Program with Sonetel, Affiliate receives compensation for the Referred Customer referrals made to Sonetel. This may establish a “material connection” according to FTC rules, which creates an obligation for Affiliate to provide disclosure to consumers. Full compliance with these guidelines requires, among other things, that (a) Affiliate clearly and conspicuously disclose that Affiliate is being compensated for referring Referred Customers to Sonetel, 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.
A Referred Customer cannot be owned or controlled by an Affiliate. An Affiliate will be deemed to have introduced only those Referred Customers that: access Sonetel from that Affiliate’s Affiliate Link assigned by Sonetel.
Sonetel reserves the right to (i) demand and receive information from Affiliates about any Referred Customer, including but not limited to information with respect to traffic sources and methods used to acquire the Referred Customer, and (ii) assess the legitimacy and qualification of such Referred Customer for the purposes of determining whether a Fee is payable for such Referred Customer. Sonetel will not be responsible to pay any Fees for a Referred Customer owned in whole or in part by a Affiliate’s employer (whether full-time, part-time, term or any other employment type relationship).
2.2. Compliance with Laws
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 Affiliate Program.
2.3. Affiliate Duty to Inform
Affiliate will promptly inform Sonetel of any information known to Affiliate that could reasonably lead to a claim, demand or liability of or against Sonetel by any third party.
2.4. Affiliate Duty to Disclose
If Affiliate is acting as an agent on behalf of a Referred Customer, then Affiliate will disclose to the Referred Customer any Fees that Affiliate is entitled to receive from Sonetel in accordance with this Agreement that are associated with such Referred Customer.
2.5. Other Affiliate Terms
If the Affiliate is an individual, you must be older than 18 years.
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.
To become an Affiliate, Affiliate must create an Affiliate Account by providing all information indicated as required. Sonetel may reject an application for an Affiliate Account for any reason, in its sole discretion. Affiliate acknowledges that Sonetel will use the email address provided by Affiliate as the primary method for communication. Affiliate is responsible for keeping its Affiliate Account password secure. Sonetel cannot and will not be liable for any loss or damage arising from Affiliate’s failure to maintain the security of the Affiliate Account and password.
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.
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.
Affiliate acknowledges and agrees that Sonetel may amend this Agreement at any time by posting the relevant amended and restated Affiliate Program Agreement on Sonetel’s website, available at sonetel.com and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Sonetel will provide reasonable notice by email, posting a notice on the Sonetel Blog or similar. Affiliate’s continued participation in the Sonetel Affiliate Program after the amended Affiliate Program Agreement is posted to Sonetel’s website constitutes Affiliate’s agreement to, and acceptance of, the amended Agreement. If Affiliate does not agree to any changes to the Agreement, Affiliate must terminate the Agreement by discontinuing its participation in the Sonetel Affiliate Program.
Affiliate acknowledges and agrees that Affiliate’s participation in the Sonetel Affiliate Program, including information transmitted to or stored by Sonetel, is governed by the Sonetel Privacy Policy found at sonetel.com.
3. Fees and Payments
3.1. Revenue Sharing Plans
The “Referral Commission Plan” is a revenue sharing plan applicable to Affiliates that introduce Sonetel to a Referred Customer. Under the Referral Commission Plan, an Affiliate is entitled to a percentage of certain revenue received from such Referred Customer, to be determined by Sonetel in its sole discretion, with Sonetel being entitled to the remaining percentage. In order to continue receiving revenue share for the Referred Customers referred under the Referral Commission Plan, Affiliate must carry out at least one Revenue Generating Activity in each consecutive 12-month period. A description of the current revenue share percentages applicable to Affiliates, amounts eligible to be included in the Affiliate’s revenue share, and a description of current Revenue Generating Activities is available in the Affiliate section at sonetel.com. Sonetel reserves the right to revise the revenue share applicable to the Referral Commission Plan, and any ongoing obligations to receive revenue share (including required Revenue Generating Activities) from time to time, at its sole discretion, upon reasonable prior notice to Affiliate. Such notice will be provided by email or by posting a notice or update at sonetel.com.
Subject to: (i) Affiliate’s compliance with this Agreement, and (ii) the Referral Commission Plan associated with an Affiliate’s activities pursuant to the Affiliate Program, Affiliate will be entitled to receive certain fees from Sonetel (the “Fees”).
3.2. Payment
Fees due to Affiliate under the Referral Commission Plan will be calculated by Sonetel at least once per month upon receipt of payment from the Referred Customer, provided that Affiliate has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period.
Sonetel distributes Fees owing to its Affiliates in accordance with the terms defined for each affiliate program, as published at Sonetels website..
Affiliates are responsible for all applicable Taxes that arise from or as a result of any activities under this Agreement or with respect to Affiliates dealings with a Referred Customer. If Taxes are not collected by Sonetel in respect of an Affiliate transaction with a Referred Customer facilitated by Sonetel, Affiliate is responsible for determining if Taxes are payable on such a transaction, and if so, self-remitting Taxes to the appropriate tax authorities.
Fees will be paid out to the Affiliate in accordance with terms specified in the Referral Commission Plan.
3.3. Additional Payment Information
All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld by Sonetel during the period of investigation. Sonetel may also withhold payment if Affiliate fails to provide Sonetel with information that is required to make payment.
Notwithstanding anything to the contrary in this Agreement, Sonetel will not be responsible to pay any Fees:
a. related to amounts that have been refunded to Referred Customers by Sonetel;
b. for a Referred Customer created or owned in whole or in part by an Affiliate;
c. related to fraudulent sales;
d. related to revenues that have been subject to chargebacks;
e. to Affiliates who are employed by Sonetel (whether full-time, part-time, term or any other employment-type relationship); or
f. to Affiliates who are employed by the Referred Customer to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).
If any Fees paid by Sonetel are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3, or to have been paid in error, Sonetel 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 3.3 from future payments due to Affiliate. If the Agreement is terminated before such amounts are fully repaid by Affiliate to Sonetel, Affiliate will pay to Sonetel the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
Sonetel 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 or posting a notice in the affiliate section of the Sonetel website. In the event of any disputes over Fees, Sonetel’s determination will be final and binding.
4. Termination
4.1. Termination
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.
Fraudulent or other unacceptable behaviour by Affiliate, including breach of the Terms & Conditions, as determined by Sonetel in its sole discretion, may result in one or more of the following actions being taken by Sonetel: (a) termination of Affiliate’s affiliation with Referred Customers within the Affiliate Account; (b) suspension of some or all Affiliate privileges under the Affiliate Program; and (c) termination of the Affiliate Account entirely without notice to, or recourse for, Affiliate.
Sonetel reserves the right to cancel or modify the Affiliate Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Affiliate Program Agreement, including any material change to Fees, Sonetel will provide reasonable notice by email or by posting a notice in the affiliate section of the Sonetel website.
4.2. Consequences of Termination
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 Sonetel Creative and all Confidential Information (as defined below)); (b) Affiliate will immediately cease displaying any Sonetel Creative or any Sonetel 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, or to receive any payments of Fees under this Agreement, unless otherwise determined by Sonetel in its sole discretion.
This Section 4.2 and the following Sections will survive any termination or expiration of this Agreement:
Section 1 (Definitions),
Section 5.4 (Proprietary Rights of Sonetel),
Section 6 (Confidentiality),
Section 7 (Disclaimer of Warranty),
Section 8 (Limitation of Liability and Indemnification), and
Section 9 (General Provisions)
In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
5. Intellectual Property Rights
5.1. Sonetel Creative
All Sonetel Creative will be solely created and provided by Sonetel unless otherwise agreed to by Sonetel in writing in advance. Sonetel will provide Affiliate with copies of or access to Sonetel Creative. The Sonetel Creative may also be accessible from the affiliate section of the Sonetel website and the Sonetel brand guidelines (“Sonetel Trademark Usage Guidelines”). By using the Sonetel Creative, you indicate your acceptance of our Sonetel 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 Sonetel Creative. The Sonetel Creative is provided “as is” and without warranty of any kind.
Affiliate may display Sonetel Creative on websites solely for the purpose of marketing and promoting the Service and any Sonetel brands permitted by Sonetel during the term of this Agreement, or until such time as Sonetel may, upon reasonable prior notice, instruct Affiliate to cease displaying the Sonetel Creative. Affiliate may not alter, amend, adapt or translate the Sonetel Creative without Sonetel’s prior written consent. Nothing contained in any Sonetel Creative will in any way be deemed a representation or warranty of Sonetel. The Sonetel Creative will at all times be the sole and exclusive property of Sonetel and no rights of ownership will at any time vest with Affiliate even in such instances where Affiliate has been authorized by Sonetel to make changes or modifications to the Sonetel Creative.
5.2. Sonetel Trademarks
During the term of this Agreement, Sonetel hereby grants to Affiliate a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Sonetel Trademarks solely as necessary to perform Affiliate’s obligations under this Agreement. Affiliate acknowledges and agrees that: (a) it will use Sonetel’s Trademarks only as permitted under this Agreement; (b) it will use the Sonetel Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Sonetel in writing from time to time, including but not limited to the Sonetel Trademark Usage Guidelines; (c) the Sonetel Trademarks are and will remain the sole property of Sonetel; (d) nothing in this Agreement will confer in Affiliate any right of ownership in the Sonetel Trademarks and all use thereof by Affiliate will inure to the benefit of Sonetel; (e) Affiliate will not, now or in the future, apply for or contest the validity of any Sonetel Trademarks; and (f) Affiliate will not, now or in the future, apply for or use any term or mark confusingly similar to any Sonetel Trademarks.
5.3. Restrictions on Affiliate’s Use of the Sonetel Trademarks
Notwithstanding Section 5.2, Affiliates will not:
use the Sonetel 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 Sonetel in advance of each use; or
purchase or register search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses or domain names that use the Sonetel Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Sonetel Trademarks.
5.4. Proprietary Rights of Sonetel
As between Affiliate and Sonetel, the Sonetel Creative, Sonetel Trademarks, all demographic and other information relating to Referred Customers including Referred Customers, prospective Affiliates and Affiliates, the Services, Referred Customer 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 Sonetel or otherwise related to the Service, Sonetel Affiliate Program, Sonetel, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Sonetel Property”) will be and remain the sole and exclusive property of Sonetel. To the extent, if any, that ownership of any Sonetel Property does not automatically vest in Sonetel by virtue of this Agreement, or otherwise, and vests in Affiliate, Affiliate hereby transfers and assigns to Sonetel, upon the creation thereof, all rights, title and interest Affiliate may have in and to such Sonetel Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.
5.5. Sonetel’s Use of Affiliate’s Intellectual Property
Affiliate grants to Sonetel a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and licence 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 Sonetel’s discretion, Sonetel 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.
6. Confidentiality
“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 Sonetel and Affiliate, Referred Customer Data and End Customer Data is the Confidential Information of Sonetel.
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 6. 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.
7. Disclaimer of warranty
The Sonetel Affiliate Program, the Service, the Sonetel Trademarks, the Sonetel Creative, Ads (including delivery and related reporting) are provided “as-is”. Sonetel makes no warranties under this Agreement, and Sonetel 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, Sonetel further disclaims all representations and warranties, express or implied, that the Service, the Sonetel Trademarks, the Sonetel Creative satisfy all of Affiliate’s or Referred Customer’s requirements and or will be uninterrupted, error-free or free from harmful components.
8. Limitation of Liability and Indemnification
8.1. Limitation of Liability
Sonetel will have no liability with respect to the Sonetel Affiliate Program, the Service, the Sonetel Trademarks, the Sonetel Creative or Sonetel’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 Sonetel Trademarks, the Sonetel Creative, or Affiliate’s participation or inability to participate in the Sonetel Affiliate Program, even if Sonetel has been advised of the possibility of such damages. In any event, Sonetel’s liability to Affiliate under this Agreement for any reason will be limited to the Fees paid to Affiliate by Sonetel 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 Referred Customer and an Affiliate is strictly between the Referred Customer and the Affiliate, and neither Sonetel are obligated to intervene in any dispute arising between the Referred Customer and the Affiliate. Under no circumstances will Sonetel 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 Referred Customer. These limitations will apply even if Sonetel have been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
8.2. Affiliate Indemnification
Affiliate agrees to indemnify, defend and hold harmless Sonetel 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 Sonetel granted by Affiliate to any Referred Customer, prospective Affiliate or other third party; (d) Affiliate’s use of the Service; (e) Affiliate’s breach of any term of this Agreement (including any documents it incorporates by reference) (f) any third party claim that Affiliate’s products or services infringes the intellectual property or other rights of a third party; (g) Affiliate Taxes, including any audits or penalties related thereto; (h) the performance, non-performance or improper performance of the Affiliate’s products or services; (i) Affiliate’s relationship with any Referred Customer; and (j) any breach of applicable law by the Affiliate.
8.3. Notice of Indemnification
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.
8.4. Non-exclusive remedies
In the event of any breach or threatened breach by Affiliate of any provision of Sections 2, 3.2, 5 or 6 above, in addition to all other rights and remedies available to Sonetel under this Agreement and under applicable law, Sonetel 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 Affiliate Program, (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 Sonetel in connection with such violation, in accordance with the provisions of this Section 8.
9. General provisions
9.1. Force Majeure
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), labour disputes, 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.
9.2. Independent Contractors
The Parties to this Agreement are independent contractors. Except with respect to the collection and transfer of payments, credits or refunds between Referred Customers and Affiliate, or as otherwise expressly stated in this Agreement, neither Sonetel is an agent, representative or related entity of the Affiliate. Neither Sonetel 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 Sonetel to act on its behalf in this Agreement. For the avoidance of doubt, Affiliate expressly authorizes Sonetel to act on its behalf for the purposes of collecting and remitting payment, credits or refunds between Referred Customer and Affiliate. This Agreement will not be interpreted or construed to create an association, agency, joint venture or Affiliateship between the Parties or to impose any liability attributable to such a relationship upon either Party.
9.3. Non-Exclusivity
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.
9.4. Notice
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, and to legal@sonetel.com.
9.5. No Waiver
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.
9.6. Entire Agreement
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 Sonetel 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.
9.7. Assignment
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. Sonetel 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 Sonetel’s prior written consent, to be given or withheld in Sonetel’s sole discretion.
9.8. Applicable Laws
This Agreement will be governed by and interpreted in accordance with the laws of Sweden.
The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Sweden with respect to any dispute or claim arising out of or in connection with this Agreement. The proceedings will be held in Swedish or English.
9.9. Patent Non-Assertion
Affiliate and its affiliates covenant not to assert patent infringement claims against Sonetel or the Service.
9.10. Competitive or Similar Materials
Sonetel 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 Sonetel does not use Affiliate’s Confidential Information in so doing.
9.14. Industry Standards
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, Applications and Themes, as applicable. 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.
In addition, if Affiliate has access to Referred Customer Data, Affiliate: (i) will only use or store such information for the purpose of providing the Affiliate’s services to the Referred Customer to whom the Referred Customer 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 End Customers directly or indirectly, provided however that Affiliate may contact End Customers if the information is obtained from another source, such as from the End Customers themselves; (iii) will only store such information for as long as reasonably necessary to provide the Affiliate’s services to the Referred Customer to whom the Referred Customer 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 Sonetel of any actual or suspected breach or compromise of Referred Customer 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 Referred Customer Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to Sonetel, Referred Customers or End Customers; and (D) regularly communicate the progress of its investigation to Sonetel and cooperate to provide Sonetel with any additional requested information in a timely manner.
9.15. 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.