PLATFORM AFFILIATE PROGRAM AGREEMENT
THIS PLATFORM AFFILIATE PROGRAM AGREEMENT (this “Agreement”) is a binding agreement between JRSK, Inc. d/b/a Away, a Delaware corporation, (“Company”), and the person or entity accepting this Agreement (the “Platform Affiliate” or “you”). The “Effective Date” is the date on which you first click “I Accept” or otherwise accept this Agreement by creating an account or accessing the Platform Affiliate Portal. BY CLICKING “I ACCEPT,” CREATING AN ACCOUNT, OR ACCESSING THE PLATFORM AFFILIATE PORTAL, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ACCEPTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE. Company and you may each be referred to herein as a “Party” and together as the “Parties.”
PURPOSE. Company designs, markets, and sells luggage, bags, and related travel accessories (collectively, the “Products”) through its website located at www.awaytravel.com and other authorized sales channels (the “Company Site”). Company operates an affiliate marketing program (the “Affiliate Program”) through a third-party affiliate network or link-generation platform designated by Company from time to time (the “Affiliate Network”), through which you will receive unique tracking links to the Company Site (“Affiliate Links”). This Agreement sets the terms under which you may participate in the Affiliate Program by promoting the Products and sharing Affiliate Links via email, social media, and other channels approved in writing by Company (collectively, the “Services”).
1. SERVICES
1.1 Services. You shall provide the Services for or on behalf of, Company. You shall use only the Affiliate Links issued to you through the Affiliate Network, shall not modify, redirect, or obscure the destination of any Affiliate Link, and shall comply with the Affiliate Network’s terms of service and any Company program policies made available to you.
1.2 Access to Information. You hereby authorize and grant Company access to all data, information, reports, materials, documents, equipment, or general directions or instructions relating to your performance of the Services hereunder, as may be reasonably requested by Company from time to time. Each Party shall retain all right, title, and interest in and to its own data, information, and materials, including without limitation any user data, marketing data, or performance metrics generated or maintained by that Party (“Data”), to the extent that such Data does not include any Confidential Information of the other Party. Nothing in this Agreement shall be construed to grant either Party any ownership rights in or to the other Party’s Data. Each Party shall comply with all applicable data privacy and security laws in connection with its handling of the Data. For the avoidance of doubt, all data generated by, collected through, or derived from the Affiliate Program, the Affiliate Links, the Affiliate Network, or the Company Site, including without limitation customer data, order data, click and conversion data, usage analytics, and aggregated or de-identified data, shall be the sole and exclusive property of Company. Notwithstanding the foregoing, each Party shall handle all user data in accordance with applicable data privacy and security laws. You authorize Company to share your information, including your account, performance, tax, and payment information, with the Affiliate Network and any third-party payment service provider as necessary to operate the Affiliate Program and pay the Fees.
1.3 Organization and Authority. Each Party will at all times during the Term of this Agreement be and remain legally organized and operated in a manner consistent with all state and federal laws.
1.4 Advertising. Subject to the terms and conditions of this Agreement, you may conduct marketing and advertising activities to promote the Products. You shall ensure that your advertising, marketing, and promotion of the Products: (a) complies with all applicable laws; (b) is not conducted using deceptive, misleading, or unethical practices or techniques that are or might be detrimental to Company, its affiliates, or the public; (c) in no way reduces or diminishes the goodwill, reputation, image, and prestige of, or otherwise disparages, Company or its affiliates; and (d) makes no representations with respect to Company, its affiliates, or the Products that are inconsistent with this Agreement. You agree that any description you provide of your relationship with Company orally, in writing, in advertising, or in any other way, shall, subject to Company approval, clearly characterize you as an “independent contractor” or other similar designation approved by Company. You further agree that you shall not use Company’s name on any stationery, business cards, telephone listings, or any other written or printed material, on a web site or by broadcast medium without the prior written approval of Company.
1.5 Social Media Compliance. You shall ensure that all social media content created, published, or distributed by you relating to Company, the Products, the Affiliate Links, or the Services (“Social Media Content”) complies with all applicable federal, state, and local laws, rules, and regulations applicable to the services rendered under this Agreement (including, without limitation, the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255) and the FTC’s Trade Regulation Rule on the Use of Consumer Reviews and Testimonials (16 C.F.R. Part 465), each as amended from time to time), as well as any Company guidelines and instructions. Without limiting the foregoing, you shall: (a) include a clear and conspicuous disclosure (e.g., “#ad,” “#sponsored,” “paid ad,” or an equivalent verbal or written disclosure) in plain sight at or near the beginning of each item of Social Media Content (but prior to any “More” link to expand the post caption), and not buried among hashtags or other text, and, where an Affiliate Link is included, disclose that you may earn a commission on purchases made through it; (b) ensure that all Social Media Content consists only of factual statements or your honest personal opinions and experiences about Company and the Products, which you know and can be proven or verified, or which are provided by Company to you and represented as verified factual statements, and not endorse any Product you have not personally used; (c) comply with the rules and terms of service of the applicable social media platforms, including use of any available paid-partnership or branded-content labeling tools; (d) create all Social Media Content as original work, unless content is provided by Company, and you shall not include any content in the Social Media Content that infringes on the rights of any third party, including, without limitation, any intellectual property right; (e) not make any performance, durability, safety, warranty, comparative, or other claims about any Product unless such claims have been provided or pre-approved in writing by Company; and (f) not include any third party’s likeness or personally identifiable information without Company’s prior written authorization and an appropriate release. Company may require modification or removal of any Social Media Content that does not comply with this Section, and may require removal of any other Brand Content at any time and for any reason in its sole discretion, and you shall comply with any such request within twenty-four (24) hours of receipt. Company may add, or require you to add, disclosures identifying the commercial nature of your relationship with Company to any Social Media Content.
1.6 Prohibition on Artificial Intelligence. You shall not use any artificial intelligence, machine learning, or other generative technology, including without limitation text-to-image, image-to-image, text-to-video, voice-cloning, avatar, or “deepfake” tools, and any AI-powered editing feature that generates, adds, removes, replaces, or materially alters any visual or audio element (collectively, “AI Tools”), to create, generate, edit, enhance, or alter, in whole or in part, any image, video, audio, graphic, caption, text, or other content that (a) contains, links to, or accompanies an Affiliate Link, or (b) depicts, mentions, references, or relates to Company, the Products, or the Company Marks (collectively, “Brand Content”). Without limiting the foregoing, you shall not: (i) use AI Tools to depict any Product, or any person using, carrying, or interacting with any Product; (ii) upload or input any Company Marks, Product images, Company-provided materials, or Confidential Information of Company into any AI Tool; or (iii) create or use any synthetic or digitally fabricated likeness, voice, or persona in any Brand Content. Standard, non-generative editing functions (such as cropping, resizing, rotation, exposure, and color correction) that do not add, remove, or alter the depiction of any Product, person, or setting are not AI Tools for purposes of this Section. Upon Company’s request, you shall promptly provide original, unedited source files and other reasonable evidence demonstrating that Brand Content complies with this Section. Any breach of this Section shall constitute a material breach of this Agreement that is not capable of cure, and Company may, in addition to its other rights and remedies, require immediate removal of the non-compliant Brand Content and withhold, or recover from you, any Fees attributable to Qualified Sales generated through such Brand Content.
1.7 Email Marketing. You shall ensure that every commercial email or other electronic message that you send containing an Affiliate Link or relating to Company or the Products complies with all applicable laws, including without limitation the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), Canada’s Anti-Spam Legislation, and applicable state laws. Without limiting the foregoing, you shall: (a) send such messages only to recipients who have affirmatively opted in to receive marketing messages from you, and never to purchased, rented, harvested, or scraped lists; (b) use accurate header, “from,” and routing information that identifies you as the sender, and not state or imply that the message is sent by or on behalf of Company; (c) use subject lines that are not false or misleading; (d) include a functioning unsubscribe mechanism and your valid physical postal address, and honor opt-out requests within ten (10) business days; (e) include the disclosure required by Section 1.5; (f) suppress any recipient on any suppression list Company provides to you; and (g) not send any text or SMS message containing an Affiliate Link without Company’s prior written approval. Company may require you to submit email creative for approval before sending.
1.8 Prohibited Practices. You shall not, directly or indirectly: (a) bid on, purchase, or use any Company Marks, or any misspelling or variation thereof, as keywords or in ad copy for paid search, display, or social advertising; (b) register or use any domain name, social media handle, or account name that contains or is confusingly similar to any Company Mark; (c) engage in cookie stuffing, forced clicks, pop-ups, pop-unders, adware, or any other means of generating clicks or attributing sales that do not result from a customer’s voluntary click on an Affiliate Link; (d) make purchases through your own Affiliate Links for yourself or Platform Affiliate Personnel, or offer cash back, rebates, or other incentives for clicks or purchases unless approved in writing by Company; (e) publish any coupon, promotional, or discount code not issued to you by Company; (f) use bots, purchased followers or engagement, or other artificial means to inflate your audience or engagement; or (g) place Affiliate Links or Brand Content on any website or channel that contains or promotes sexually explicit, violent, hateful, discriminatory, illegal, or infringing content, or that targets children under the age of thirteen (13). Company may withhold, reverse, or recover any Fees attributable to any activity that violates this Section or that Company reasonably determines to be fraudulent.
1.9 No Obligation. You acknowledge and agree that Company shall be solely responsible for determining, in its sole discretion, whether it or any of its affiliates will enter into any contract, arrangement, or relationship with any party introduced or referred by you, including whether to accept or fulfill any order, and nothing in this Agreement shall obligate Company to do so.
1.10 Audit Rights. Company shall have the right, upon reasonable notice, to audit and review your marketing materials, communications, advertising practices, email lists and opt-in records, content source files, and records relating to the Services to verify compliance with this Agreement, applicable law, and Company’s policies. You shall cooperate with any such audit and provide access to relevant records and information. You agree that Company may use automated tools and human reviewers to monitor and review content that contains Affiliate Links or relates to Company or the Products to detect potential violations of this Agreement.
2. FEES
2.1 Fees. In consideration of your obligations to provide the Services under this Agreement, Company shall pay you commissions on Qualified Sales at the rates, and subject to the attribution window, return period, minimum payout threshold, and other terms, displayed to you in the Affiliate Portal or the applicable campaign or offer you accept through the Affiliate Network (collectively, the “Commission Terms,” and such commissions, the “Fees”). Commission Terms may vary by Product, campaign, promotion, or affiliate tier. The Commission Terms are incorporated into this Agreement by reference. If the Commission Terms conflict with this Agreement, this Agreement controls, except as to rates and the other economic terms described in this Section. The Fees are your sole compensation under this Agreement. Company may change the Commission Terms on a prospective basis upon thirty (30) days’ notice to you by email or through the Affiliate Portal, except that Company may change or end any campaign-specific or promotional Commission Terms in accordance with the terms of that campaign or promotion. Fees are calculated under the Commission Terms in effect on the date of the Qualified Sale. Your continued participation in the Affiliate Program after a change takes effect constitutes your acceptance of the changed Commission Terms. Company’s records and the records of the Affiliate Network shall be determinative of the Commission Terms in effect at any time, absent manifest error.
2.2 Qualified Sales. As used herein, “Qualified Sale” means a completed purchase of Products on the Company Site by a customer who accesses the Company Site by clicking your Affiliate Link, as tracked and attributed by the Affiliate Network within the attribution window set forth in the Commission Terms, calculated on the net purchase price actually received by Company, excluding taxes, shipping, gift card purchases, and discounts, and net of returns, refunds, cancellations, and chargebacks. Qualified Sales exclude fraudulent orders, orders placed by you or Platform Affiliate Personnel, and orders generated in violation of this Agreement. The tracking records of Company and the Affiliate Network shall be determinative of Qualified Sales, absent manifest error. Company reserves the right to modify the Fees, on a prospective basis, upon thirty (30) days’ prior written notice to you. Your continued participation in the Affiliate Program after the effective date of any modification constitutes your acceptance of the modified Fees.
2.3 Invoicing. Company shall deliver to you, or make available through the Affiliate Network, a report each month setting forth the Fees in respect of Qualified Sales. If you dispute the accuracy of the amount owed to you on such report, you must submit the dispute to Company in writing within thirty (30) days after your receipt of the report, specifying the basis for the dispute; otherwise, the dispute is deemed waived. Any unresolved dispute may be pursued through the dispute-resolution mechanism provided in Section 7.5.
2.4 Payment. All invoiced amounts for a month shall be due within thirty (30) days after your receipt of such report and shall be exclusive of any taxes, including but not limited to sales, use or excise taxes imposed on the sale or use of the Services, all of which shall be borne exclusively by you. All invoiced amounts shall be paid in immediately available US dollars by check, wire transfer to a previously designated account, money order, or through the Affiliate Network. Company is not obligated to pay any Fees until you have provided a completed IRS Form W-9 or other tax documentation Company reasonably requests. If Fees are paid through the Affiliate Network or a third-party payment service provider designated by Company (each, a “Payment Provider”): (a) you shall agree to and comply with the Payment Provider’s applicable terms; (b) you are responsible for any fees the Payment Provider charges in connection with payments to you, which may be deducted from the Fees; and (c) Company’s delivery of Fees to the Payment Provider for remittance to you shall satisfy Company’s obligation to pay those Fees, and Company shall have no liability for any act or omission of any Payment Provider. Company may freeze, delay, or withhold payment of Fees while it investigates any suspected breach of this Agreement, fraud, or other unlawful activity. Company may offset against future Fees, or require you to repay, any Fees paid on sales that are later returned, refunded, cancelled, charged back, or determined not to be Qualified Sales, and any overpayments, payment errors, or other amounts you owe to Company.
2.5 Expenses. You shall not be reimbursed for any expenses incurred during your performance of the Services. Notwithstanding the foregoing, in the event you determine that additional expenses might necessarily be incurred in connection with your performance of the Services, you shall, prior to incurring such expense, submit a written notice to Company detailing the expense, and Company shall have the option of having you incur the expense with a guarantee of reimbursement. No reimbursements shall be authorized without prior written approval from Company.
3. TERM & TERMINATION
3.1 Term. This Agreement shall commence on the Effective Date and continue, unless earlier terminated as provided in this Agreement, for a period of one (1) year (the “Initial Term”); provided, however, this Agreement shall automatically continue for successive one (1) year terms after the Initial Term, unless earlier terminated as provided in this Agreement (each a “Renewal Term” and together with the Initial Term, the “Term”), or unless either Party notifies the other Party of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as applicable.
3.2 Termination.
(a) Termination by Company or You. Company may terminate this Agreement at any time, with or without cause, upon written notice to you. You may terminate this Agreement by providing written notice to Company or by ceasing to access or use the Affiliate Network and the Affiliate Program.
(b) Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach.
(c) Compliance with Law. Company may immediately suspend or terminate all or any portion of the obligations under this Agreement, including by deactivating your Affiliate Links, in the event that Company reasonably determines that the Services are not in compliance with applicable law or this Agreement; provided that Company shall provide written notice to you of such suspension or termination. Company may also terminate this Agreement immediately upon notice if the Affiliate Network or any Payment Provider ceases to provide services to you or to Company.
(d) Change in Law. Company may amend this Agreement upon notice to you to the extent reasonably necessary to comply with applicable law. If you do not wish to accept such amendment, you may terminate this Agreement by providing written notice to Company or by ceasing to access or use the Affiliate Network and the Affiliate Program before the amendment becomes effective.
3.3 Effect of Termination. Upon termination or expiration of this Agreement: (a) you shall immediately cease all use of the Affiliate Links, the Company Marks, and all Company Confidential Information; (b) you shall promptly return or destroy all Confidential Information of Company in your possession or control; (c) you shall remove all Company-related branding, marketing materials, Affiliate Links, and content from your websites, social media accounts, email templates, and other channels within fifteen (15) days; (d) Company shall pay you Fees earned on Qualified Sales made before the effective date of termination, subject to the return period and other terms of this Agreement, except that if Company terminates this Agreement because of your breach, all unpaid Fees shall be forfeited; and (e) you shall certify in writing, upon Company’s request, that you have complied with the foregoing obligations.
4. INDEMNIFICATION & LIMITATION OF LIABILITY
4.1 Indemnification. You agree to indemnify, defend and hold harmless Company, its affiliates, and each of its respective shareholders, members, directors, officers, employees, agents, and representatives from any and all losses, liabilities, claims, and damages, whether arising from a third-party claim or otherwise (including the costs, expenses, and reasonable attorney’s fees on account thereof), arising out of: (a) any instruction, authorization or direction provided by you or your officers, directors, employees, contractors, agents, or other representatives (collectively, “Platform Affiliate Personnel”); (b) any bodily injury or tangible property damage caused by you or Platform Affiliate Personnel; (c) negligence or willful misconduct by you or Platform Affiliate Personnel; (d) breach of this Agreement by you or Platform Affiliate Personnel; (e) violation of applicable law governing your obligations under this Agreement, including, but not limited to, data protection laws; (f) any infringement, violation, contravention, conflict with, misappropriation or breach of any intellectual property rights based on the Services provided under this Agreement; (g) any Social Media Content, Brand Content, email, or other communication published or sent by you or Platform Affiliate Personnel, including any claim of false advertising, failure to disclose, unsolicited messaging, or violation of privacy or publicity rights; and (h) your use of the Affiliate Network or any claim by a customer, Payment Provider, or other third party arising out of the Services.
4.2 Limitation of Liability. THE AFFILIATE PROGRAM, THE AFFILIATE LINKS, AND ALL COMPANY-PROVIDED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT GUARANTEE ANY LEVEL OF SALES, FEES, OR EARNINGS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE, DOWNTIME, OR TRACKING ERROR OF THE AFFILIATE NETWORK, OR FOR ANY REQUIRED REMOVAL OF CONTENT OR DEACTIVATION OF AFFILIATE LINKS. COMPANY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID OR PAYABLE TO YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
5. REPRESENTATIONS AND WARRANTIES
5.1 General Representations and Warranties. Each Party represents, warrants, and covenants that: (a) it has the legal power to enter into this Agreement; (b) it is an individual or entity duly organized or formed and validly existing and in good standing under the laws of the state of its incorporation or formation; (c) it has the rights and authorizations necessary to perform its obligations and grant the rights set forth in this Agreement; (d) it does not have any outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof; (e) the exercise by Company of the rights granted under this Agreement will not infringe, misappropriate or violate the intellectual property rights of any third party; (f) it is not using and shall not use the Services to encourage, promote, solicit, advocate or commit conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law; (g) it has and will at all times during the Term comply with all applicable laws in the performance of its obligations under this Agreement; and (h) it will promptly notify the other Party in writing if any of the foregoing representations or warranties ceases to be true during the Term. You further covenant and agree that you will comply with all applicable Federal Trade Commission guidelines, including but not limited to requirements for disclosure of material connections in endorsements and testimonials, in connection with any marketing, advertising, or promotional activities related to Company or the Products. You further represent and warrant that: (i) neither you nor any of your owners or Platform Affiliate Personnel is the subject of sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or any other governmental authority, or is located in a comprehensively sanctioned country or region; and (ii) all information you provide to Company, the Affiliate Network, or any Payment Provider, including tax and payment information, is accurate and complete, and you will promptly update it if it changes.
5.2 Product Information and Claims.
(a) Product Information. You shall use only Product descriptions, specifications, pricing, promotional offers, and images that Company provides or approves in writing, and shall promptly update or remove any such information upon Company’s request. You shall not advertise any price, promotion, or discount that Company has not authorized or that has expired.
(b) No Authority to Bind. You have no authority to make, and shall not make, any representation, warranty, guarantee, or commitment on behalf of Company, including with respect to Product quality, durability, warranty coverage, returns, shipping, or pricing. You shall direct all customer inquiries, orders, returns, and warranty claims to Company’s customer service channels.
(c) Responsibility for Communications. In performing the Services, you are solely responsible for all statements, content, and communications made by you to or with customers, followers, email recipients, or other individuals, whether such communications are written, oral, or electronic. Company shall not be obligated to control or supervise any such communications and will have no responsibility or liability for them, whatsoever.
(d) Restricted Product Claims. Except as provided or approved in writing by Company, you shall not make any claim regarding: (i) the safety, security, or locking features of any Product, including any TSA-accepted lock claim; (ii) compliance of any Product with airline size, weight, or carry-on requirements; (iii) materials, durability, water resistance, or performance testing; (iv) sustainability, recyclability, or other environmental attributes; (v) country of origin, including any “Made in USA” claim; or (vi) warranty, guarantee, or return terms. Any breach of this Section shall constitute a material breach of this Agreement.
6. INTELLECTUAL PROPERTY; CONFIDENTIALITY; RESTRICTIVE COVENANTS
6.1 Intellectual Property. All content, materials, and other works of authorship created by you in connection with the Services, including without limitation video content, audiovisual materials, written content, images, graphics, and social media posts (collectively, “Platform Affiliate Content”) shall be the sole and exclusive property of Company in perpetuity. You hereby irrevocably assign to Company all right, title, and interest in and to all Platform Affiliate Content, including all copyrights and other intellectual property rights therein. To the extent any Platform Affiliate Content may be deemed a work made for hire under applicable law, it shall be so deemed. You represent and warrant that all Platform Affiliate Content is your original work, was created by human authorship without the use of AI Tools, and does not infringe or violate the rights of any third party. Company shall have the perpetual, worldwide right to use, reproduce, distribute, publicly display, publicly perform, modify, create derivative works from, sublicense, and otherwise exploit the Platform Affiliate Content for any purpose, including without limitation advertising, marketing, and promotional purposes. You hereby grant Company a perpetual, irrevocable, royalty-free license to use your name, likeness, image, and voice as embodied in the Platform Affiliate Content for any purpose in connection with Company’s business. You further grant Company the right, without additional compensation, to use your name, social media handles, image, and Affiliate Program performance information to promote Company, the Products, and the Affiliate Program. To the extent you have any moral rights in the Platform Affiliate Content, you hereby waive such rights, and to the extent such rights cannot be waived, you agree not to assert them against Company or its licensees. The Company Site, the Products, Company’s names, trademarks, service marks, logos, and trade dress (the “Company Marks”), and all materials Company provides to you are and shall remain the sole and exclusive property of Company. You acknowledge that you have no right, title, or interest in or to any of the foregoing except the limited license expressly granted in Section 7.2, and all use of the Company Marks by you inures solely to the benefit of Company. All other intellectual property, proprietary tools, templates, and materials developed or owned by you independently of the Services (“Platform Affiliate IP”) shall remain your exclusive property, and Company is granted a limited, non-transferable, non-sublicensable license to use Platform Affiliate IP solely for the internal operations of the Affiliate Program during the Term. Company may use any feedback or suggestions you provide regarding the Products or the Affiliate Program for any purpose without compensation to you.
6.2 Confidentiality. Each Party acknowledges and agrees that it may receive or have access to information of the other Party labeled as confidential or proprietary or other information which it may reasonably know to be confidential during the Term (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement, commission rates, unreleased Products and launch dates, non-public promotions, and each Party’s Data. Each Party receiving or having access to such information of the other Party (“Receiving Party”) agrees that it will not, during or after the Term of this Agreement, except as required or permitted by applicable law: (a) use the Confidential Information of the other Party (“Disclosing Party”) for any purpose other than to perform the terms of this Agreement; or (b) disclose any Confidential Information to any person (other than a representative of the Receiving Party who is on a need to know basis and who has a duty to hold such information confidential in the manner set forth in this Agreement).
6.3 Exclusions. For the purposes of this Section, the term “Confidential Information” shall not include: (a) information that is in the public domain through no fault of the Receiving Party; (b) information known to the Receiving Party prior to the date of this Agreement without an obligation of confidentiality; (c) information disclosed to Receiving Party through a third party not known to be bound to an obligation of confidentiality; and (d) information that is independently developed by Receiving Party without any reference or use of any Confidential Information. If Receiving Party is obligated or permitted by applicable law (i.e., a court order of competent jurisdiction or a valid administrative or congressional subpoena) to disclose Confidential Information, Receiving Party shall promptly notify Disclosing Party of such obligation and afford Disclosing Party a reasonable opportunity to contest or enjoin such disclosure. If Disclosing Party is unsuccessful in such contest or injunction or if Disclosing Party waives its right of confidentiality in writing, then Receiving Party may disclose such portions of the Confidential Information, which its counsel determines it is legally obligated to disclose as required by law.
6.4 Restrictive Covenants. During the Term and for two (2) years following termination or expiration of this Agreement, you shall not, for your own account or for the benefit of any other person or business entity, or through one or more intermediaries, without the prior written consent of Company, directly or indirectly: (a) solicit or induce, or in any manner attempt to solicit or induce, any customer, supplier, vendor, contractor, or employee of Company to cease its relationship with Company or to divert or interfere with the relationship between such party and Company; or (b) otherwise interfere with any contractual relationship of Company. You shall promptly disclose to Company in writing any existing or future relationship with any business that directly competes with Company in the sale of luggage or travel accessories. You shall not use any Confidential Information, user data, or proprietary materials of Company in connection with any competing product or service.
6.5 Injunctive Relief. Each Party agrees that the wrongful disclosure or use of the Confidential Information by the Receiving Party, or your misuse of the Company Marks or breach of Section 1.6, may cause irreparable injury that is inadequately compensable in monetary damages. Accordingly, either Party may seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of any such obligations hereunder without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity.
6.6 Bluepenciling. Although the Parties believe that the limitations as to scope of activity contained herein are reasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of Company, if it is judicially determined otherwise, the limitation shall be reformed to the extent necessary to make it reasonable and not to impose a restraint that is greater than necessary to protect the goodwill or other business interests of Company. In any such case, the Parties agree that the remaining provisions of this Section shall be valid and binding as though any invalid or unenforceable provision had not been included.
6.7 Data Protection. (a) You shall not collect, request, or receive personal information of Company’s customers or Company Site visitors, and shall not place cookies, pixels, or other tracking technologies on, or append parameters to, any Affiliate Link or the Company Site, other than as provided by the Affiliate Network. You shall direct all customer inquiries to Company. (b) To the extent Company or the Affiliate Network makes any personal information available to you, including performance reports and suppression lists (“Company Personal Information”), you shall: (i) use it solely to measure your performance in the Affiliate Program or to honor opt-out requests; (ii) not sell, share, rent, or disclose it, or combine it with other data; (iii) not attempt to re-identify de-identified data; (iv) comply with all applicable privacy laws, including the California Consumer Privacy Act, and provide the same level of privacy protection those laws require of Company; (v) maintain reasonable security measures to protect it; (vi) notify Company if you can no longer meet your obligations under this Section; and (vii) delete it upon termination or Company’s request. Company may take reasonable and appropriate steps to stop and remediate any unauthorized use of Company Personal Information. (c) You shall notify Company within forty-eight (48) hours of any unauthorized access to Company Personal Information or to any account you use to provide the Services. (d) You shall forward to Company within three (3) business days any privacy request or inquiry you receive that relates to Company.
6.8 Survival. The obligations of this Section 6, Sections 1.2, 2.4, 3.3, 4, 7.5, and 7.10, and any other provision that by its nature is intended to survive, shall survive the termination or expiration of this Agreement.
7. MISCELLANEOUS PROVISIONS
7.1 Regulatory Notices. To the extent permitted by applicable law and except as advised by its counsel in connection with the protection of its rights, you will promptly (no later than three (3) days) deliver to Company a copy of any material notification or correspondence you receive from a customer, client, state or federal authority, social media platform, or third party that is related to the Services or this Agreement.
7.2 Use of Name. Subject to this Agreement, Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the Term to use the Company Marks solely in the form provided by Company, in accordance with Company’s brand guidelines, and solely to promote the Products through your Affiliate Links. Except as expressly permitted by the foregoing license, you shall not be permitted to use the name of Company or its affiliates in any written materials owned or controlled by you, or any website, advertisement, press release, or other promotional or advertisement material, without Company’s prior written consent.
7.3 Independent Contractor. You are an independent contractor of Company. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, or employment relationship between the Parties. You are solely responsible for all taxes, withholdings, and other obligations arising from the Fees, and neither you nor Platform Affiliate Personnel are eligible for any Company employee benefits. Company has no fiduciary duty to you and does not endorse you.
7.4 Affiliate Network. The Affiliate Network is operated by a third party. Your use of the Affiliate Network is subject to its terms of service, and Company makes no warranty regarding the availability, accuracy, or performance of the Affiliate Network or the tracking of any Affiliate Link.
7.5 Governing Law; Arbitration; Class Action Waiver. This Agreement shall be governed by the laws of the State of New York and the Federal Arbitration Act, without regard to conflict of laws principles. Any dispute arising out of or relating to this Agreement, the Affiliate Program, or the Services shall be resolved by final and binding arbitration administered by the American Arbitration Association under its applicable rules before a single arbitrator in New York, New York. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL. ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING, and the arbitrator may not consolidate the claims of more than one person. Notwithstanding the foregoing, either Party may bring an individual claim in small claims court, and Company may seek injunctive or other equitable relief in any court of competent jurisdiction to protect the Company Marks, its intellectual property, or its Confidential Information, or to enforce Sections 1.6, 1.8, or 6.4. If the class action waiver is found unenforceable as to any claim, that claim shall be severed and heard exclusively in the state or federal courts located in New York, New York, to whose jurisdiction each Party submits.
7.6 Notices. Company may provide notices to you by email to the address associated with your account or through the Affiliate Network. You shall provide notices to Company at 503 Broadway, 3rd Floor, New York, NY 10012, attn Lifecycle Marketing, with a mandatory copy to legal@awaytravel.com. Notices are effective upon receipt.
7.7 Assignment. You may not assign, delegate, or otherwise transfer this Agreement or any of your rights or obligations hereunder without Company’s prior written consent. Company may assign this Agreement without your consent. Any attempted assignment in violation of this Section is void.
7.8 Entire Agreement; Severability. This Agreement and any Company guidelines incorporated by reference, constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements and understandings. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
7.9 Amendments. Company may update this Agreement from time to time by providing notice to you by email or through the Affiliate Network at least fifteen (15) days before the update takes effect. Updates apply prospectively only. Your continued participation in the Affiliate Program after an update takes effect constitutes your acceptance of the updated Agreement. If you do not agree to an update, your sole remedy is to terminate this Agreement under Section 3.2(a).
7.10 Release. If you have a dispute with any customer, the Affiliate Network, any Payment Provider, or any other third party in connection with the Affiliate Program, you release Company and its affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns, from all claims, demands, and damages of every kind, known and unknown, arising out of or in any way connected with such dispute. You expressly waive any rights under California Civil Code Section 1542 (or any analogous law of any other jurisdiction), which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
7.11 Affiliate Network Terms. If this Agreement conflicts with the Affiliate Network’s terms of service, this Agreement controls as between you and Company.
7.12 No Waiver; No Third-Party Beneficiaries. Company’s failure or delay in exercising any right or remedy under this Agreement does not waive that or any other right or remedy. Nothing in this Agreement confers any rights or benefits on any third party.
