Company Marketing Affiliate Program
Merchant Agreement
THIS MERCHANT AGREEMENT (“AGREEMENT”) IS MADE AND ENTERED INTO BY AND BETWEEN MOREXA DMCC (“COMPANY”, “US”, “WE”, “OUR”) AND YOU OR THE ENTITY YOU REPRESENT (“MERCHANT”, “YOU”).
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF SECTION 14 (LIMITATION OF LIABILITY).
THIS AGREEMENT APPLIES TO YOUR ENROLLMENT AND CONTINUED PARTICIPATION IN THE PROGRAM (DEFINED BELOW) AND ACCESS AND USE OF THE PLATFORM (DEFINED BELOW), WHICH ARE SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT.
BY CLICKING “I AGREE” OR OTHERWISE SIGNALING YOUR AGREEMENT TO THIS AGREEMENT BY ANY IMPLICIT OR EXPLICIT MEANS, WHETHER BY ENROLLING IN THE PROGRAM AND ACCESSING OR USING THE PLATFORM OR OTHERWISE, YOU ARE ENTERING INTO THIS AGREEMENT.
YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS PLEASE DO NOT ENROLL IN THE PROGRAM OR ACCESS OR USE THE PLATFORM.
1. Description of Program and Platform. The Program is an e-commerce marketing program intended to publicize the Merchant’s goods and services (“Products”) as follows:
1.1. Promptly following the Merchant’s enrollment in the Program in accordance with this Agreement, the Company will provide the Merchant with a uniform resource locator (URL) through which the Merchant can create its own account (the “Account“) on the Company’s website platform (the “Platform“).
1.2. Through the Account, and pursuant to Section 8 below, the Merchant will make available to the Company all descriptions, specifications, promotional material and other information related to its Product, including but not limited to the URL to the online page on the Merchant’s website (the “Merchant’s URL“) where the Product can be purchased (collectively the “Merchant Content“) to the Company.
1.3. The Company will use the Merchant Content to create a specific page on the Platform for the Product setting out such Product’s information and the Merchant’s URL (the “Product Page“).
1.4. Through the Product Page, the Company will make available to the Company’s network of affiliated publishers and influencers (collectively the “Affiliates” and each an “Affiliate“) the Merchant Content so as to enable the Affiliate(s) to promote the Product online by sharing the Merchant Content on such Affiliate(s)’ websites, blogs, social media accounts, mailing lists or otherwise (the “Affiliate’s Platform“) and posting or uploading (as the case may be) an online link on the Affiliate’s Platform to the Merchant’s URL (the “Product Link“).
1.5. For every sale of a Product resulting from the above process and by the Merchant concluding a Qualifying Purchase (as defined below), the Merchant pays a fee to the Company (the “Program Fee“) calculated on the basis of an agreed percentage of such Qualifying Purchase as set out in an insertion order confirmed by you (the “Insertion Order“) and paid in accordance with Section 9 below.
1.6. The Program Fee is inclusive of any and all payments that may be owed to any Affiliate(s) pursuant to any arrangements between the Company and such Affiliate(s).
2. Enrollment; Account.
2.1. Requesting an Enrollment and creating an Account. Please follow the onscreen prompts on the Platform to create Your Account. You may only create the Account using the method set out on the Platform. Your enrollment pursuant to this clause 2.1 is a solicitation by you to benefit from the Program and the marketing strategy as described in Section 1 above in accordance with this Agreement.
2.2. Correcting input errors. Our enrollment process allows you to check and amend any errors before submitting your request to us. Please check the information you submit carefully before confirming your request. You are responsible for ensuring that your request, including any Merchant Content submitted by you, is complete and accurate.
2.3. Acknowledging receipt of your request. After you submit your request, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your request has been accepted. Our acceptance of your request will take place as described in clause 2.4 below.
2.4. Accepting your request. Our acceptance of your request takes place when we send an email to you to accept it together with a URL to the Product Page (Enrollment Confirmation), at which point and on which date (Commencement Date) the Agreement between you and us will become effective.
2.5. If we cannot accept your order. If we are unable to enroll you in the Program for any reason, we will inform you of this by email and we will not process your request.
2.6. Using your Account. Your Account will be associated with you and the Product(s) you have submitted for promotion through the Program, your activity on the Platform and actions related to the Program. When setting up your Account, you agree to provide complete and accurate information. Without limiting the generality of the foregoing, you agree:
a. that you are and will be responsible for all actions taken (or omitted to be taken) on or using your Account;
b. to keep your Account login information (including username and password) secure;
c. to only allow people authorized to act on your behalf access and use your Account; and
d. not to allow any person or entity access or use your Account (or the Platform) for any purpose other than the marketing of your Products.
We may offer you assistance in setting up or using your Account, such as by performing certain actions on your Account at your request. In such case, you will remain responsible for all such actions as if they have been done by you.
2.7. [Your enrollment and participation in the Program is conditional on you agreeing to and actually placing on your Merchant Website a code provided by the Company (the “Tracking Code“) which is intended to enable the Company to identify the sales of the Product(s) made by you as a result of an Affiliate’s efforts and to collect anonymous data about such sales and the Program. Upon prompting you to do so, you agree to provide the Company evidence confirming that the Tracking Code has been placed on your Merchant Website.
3. Our Services
3.1. Right of Access to Platform. Subject to the terms and conditions of this Agreement: (a) we grant you the right to access and use the Platform through your Account. This right is non-exclusive, revocable, non-perpetual, and may not be assigned, transferred or sublicensed by you to any other person or entity; and (b) you may use the content and materials we provide in connection with the Program (“Program Materials”) solely in connection with the Program and in accordance with any instructions or description we provide with the Program Materials.
3.2. Changes to specification. We reserve the right to amend the specification of the services we provide, including (but not limited) to any feature of the Program, if required by any applicable statutory or regulatory requirement or if the amendment will not materially affect the nature or quality of our services or the Program, and we will notify you in advance of any such amendment.
3.3. Descriptions and illustrations. Any descriptions (not otherwise set out herein) or illustrations on the Platform are published for the sole purpose of giving an approximate idea of the services described in them. They will not form part of this Agreement or have any contractual force.
4. Restrictions. You shall not, directly or indirectly, nor shall you attempt, or encourage any third party, to: (i) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose, or allow others to access or use, the Platform or materials we provide or make available in connection with the Program, (ii) taken any action which may disrupt servers or networks connected to the Platform; (iii) use or launch any automated system (including without limitation, “robots” and “spiders”) to access the Platform; (iv) circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Platform; (v) decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform; (vi) contact Affiliates other than by means which we make available in the Platform; (vii) promote third-party services, products or websites through the Platform which compete in any manner with us and the Program; (viii) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity either on or through the use of the Platform or in communication with an Affiliate; (ix) upload Products which you do not sell, for which you do not have a reasonably sufficient stock or which violate the Code of Conduct and Acceptable Products (defined below); (x) submit any incorrect or misleading information on or through the Platform, regarding Products, yourself or otherwise, (xii) violate any applicable law in connection with your use of the Platform, your interaction with Affiliates Site or participation in the Program; (xii) violate the requirements of the Code of Conduct as defined in Section 5 below; or (xiii) or use the Platform for any illicit or unethical purpose (including as we may, in our sole discretion, determine).
5. Code of Conduct and Acceptable Websites, Content and Products (“Code of Conduct”).
5.1. It is your responsibility to ensure at all times that:
a. Merchant Websites and Merchant Content shall not at any time whatsoever contain, display, promote, market, or sell, and the Product(s) shall not constitute, any illegal, illicit or unethical content, including without limitation, illegal drugs, gambling, firearms, ammunition or explosives, pornography, prostitution, lewdness, trafficking in humans or human organs or dealing in them illegally, violence in any form, defamatory or libelous content, sexually explicit, discrimination or prejudice based on gender, sexual preference, religion, race, ethnicity, nationality, disability or age, profanity, or fraudulent or misleading content, or infringing third-party rights or imitating third-party websites, content and/or services, or invasion of privacy, or promotion or praise of any programs or ideas which would prompt riot, hatred, racism, sectarianism, or damage the national unity or national security or government system or social peace or prejudice the public order and/or whatever may afflict the public morals in the United Arab Emirates ;
b. you comply with the terms, conditions, guidelines and policies of any third party services used, including but not limited to, email providers, social networking services, payment processors and ad networks, and all applicable law;
c. any Product submitted to the Platform must comply with all applicable law and safety standards;
d. you abide by all applicable laws and standards relating to the collection and processing of information relating to identified or identifiable persons (“Personal Data”) and that the Merchant Website prominently displays privacy policies detailing, and properly obtaining consent to, the collection and processing of Personal Data and use such Personal Data information solely in compliance with all applicable laws and standards, and safeguard such Personal Data against exposure or access by unauthorized persons using reasonable and industry standard measures;
e. without in any way limiting the generality of the foregoing, that the Merchant Websites and/or the Merchant Content and/or any and all representations of the Products, comply at all times with the rules, regulations and guidelines issued from time to time by the National Media Council (NMC) of the UAE, and shall not in any way whatsoever include any publication, circulars, prints or any media content that is in conflict with the standards of media content mentioned in the NMC’s resolutions and other applicable laws and regulations, and that such media content shall at all times be in conformity with the standards below in particular (but without limitation):
(i) respect God, Islamic belief, heavenly or monotheistic religions, and refrain from offending any of that, including embodiment or personification of prophets and messengers;
(ii) respect the ruling regime in the UAE along with its symbols, organizations, and the supreme interests of the UAE and society;
(iii) respect the cultural and civilization heritage as well as the national identity of the UAE;
(iv) refrain from publishing or circulating anything that could be offensive to the national unity and social cohesion, including refraining from raising doctrinal, tribal or partisan inclinations and avoid inciting hatred, violence, acts of terrorism, and avoid raising hostility or boosting the spirit of disagreement in the society;
(v) respect the policies and approaches adopted by the UAE at the domestic and international level;
(vi) refrain from offending the common social values and observe the public interest requirements;
(vii) refrain from offending the economic, judicial and security system in the UAE and publishing misleading or biased news and rumors;
(viii) avoid offending children and women or any other group in the society;
(ix) respect privacy rules and whatever related to personal life of individuals;
(x) respect the rights of organizations and individuals, including intellectual property rights;
(xi) refrain from publishing or circulating any content that could induce commitment of crimes such as encouraging killing, rape, drug and psychotropic substances trafficking, drinking alcohol, gambling, smoking, magic, juggling and fortune-telling;
(xii) avoid publishing, transmitting or circulating phrases, pictures, drawings or opinions that include violation of public morals, or any offense to the youth, or calling to embrace or promote destructive principles or those could mislead the public;
(xiii) refrain from publishing, transmitting or circulating false news, fabricated or fake documents that are attributed to certain agencies or persons in a wrongful manner; and
(xiv) refrain from publishing, transmitting or circulating advertisements before obtaining the consent from the appropriate authorities as per the applicable legislations.
5.2. For the avoidance of any doubt, any and all the obligations set out in clause 5.1 are deemed to constitute the Code of Conduct, the compliance with which is a material obligation of the Merchant under this Agreement.
6. Warranties You Make. By entering into this Agreement and enrolling in the Program, you represent and warrant as follows:
6.1. You (i) are duly registered or organized and validly existing under the laws of your jurisdiction or jurisdiction of formation and have the full power and authority to enter into this Agreement; and (ii) are not bound by any agreement, obligation or restriction that would conflict with this Agreement;
6.2. You have read and understood, and that you, your website and your Products meet and will continue to (i) meet all Program Qualifications, and (ii) comply with the Code of Conduct;
6.3. You own or operate your Merchant Website;
6.4. You own or have all rights or licenses needed to submit the Merchant Content and grant the Merchant Content License (defined below);
6.5. The Merchant Website, Merchant Content, and Products (i) do not infringe or violate any third party rights, including intellectual property rights and privacy rights (or rights under privacy and data protection legislation), or applicable law; and (ii) are free from viruses, malware, worms, time bombs, Trojan Horses, software locks, backdoors, trapdoors, contaminants, and other harmful or malicious code, or code or feature which circumvents security measures;
6.6. All information you provide or submit and maintain on the Platform in connection with your Account is accurate and complete.
7. Merchant Content. As part of the Program you may submit or provide various content, information and materials to Company. You hereby grant us a worldwide, irrevocable (during the Term), non-exclusive, royalty-free, assignable and transferable license to use, reproduce, sub-license, distribute, prepare derivative works of, display, and perform the Merchant Content in connection with the Program and the Platform, including without limitation for promoting the Product(s) (“Merchant Content License”). You agree that the Merchant Content License will apply directly to Affiliates for use in promoting your Product(s), subject to the terms and conditions entered into between us and such Affiliates. You acknowledge and agree that we have absolute discretion over whether to include your Product(s) or Merchant Content in the Platform or Program and over how and when such Product(s) or Merchant Content is displayed.
8. Coupons. The Company may, at its sole discretion, enable you to submit codes which consumers may use to obtain discounts on sales of your Product(s) or other benefits from you (“Coupons”). Such Coupons may include graphic media or other content, which we or you (as the Platform may permit) add to such Coupons. Any content you add to a Coupon shall be deemed Merchant Content under this Agreement. If any terms or conditions apply to the use of such Coupon, you must provide these at the time you provide the Coupon (“Coupon Terms”), provided always such Coupon Terms are true, accurate and unequivocal and comply with the applicable laws including without limitation Federal Law No. 24/2006 on consumer protection (as amended from time to time). If you submit a Coupon you agree to honor the Coupon according to the Coupon Terms and not apply additional terms or alter the Coupon Terms. The Company shall not be responsible for any such Coupons or Coupon Terms and for the avoidance of any doubt you agree that your obligations under Section 15 shall apply in this respect.
9. Program Fees and Payments.
9.1. Enrollment and Membership. We currently do not charge a fee for enrollment in the Program, setting up an account, participating in the Program, or generally accessing the Platform. However, we reserve the right to do so in the future in accordance with clause 3.2 above.
9.2. Qualifying Purchases. In consideration for your benefit of the Program and our services as set out in this Agreement, you shall pay to the Company, in respect of every Qualifying Purchase, the Program Fee in accordance with the Insertion Order and clause 9.4 below. A “Qualifying Purchase” means any purchase of a Product made on or through the Merchant Website or the Product Page or any Affiliate’s Platform (as the case may be) by any person using the Product Link and/or where the Product Link is the last link visited prior to such person arriving to the Merchant Website or the Product Page to finalize the payment for the Product, as demonstrated through the Tracking Code and/or Coupons and/or Sales Records as specified and provided in accordance with clause 9.3 below (as the case may be). For the purpose of determining the Program Fees payable under this Section 9, the Qualifying Purchases shall be accounted for on a calendar month basis, with the first month being the period of 30 days starting from the Commencement Date, and subsequently each calendar month thereafter each 30 day period (each an “Contract Month“).
9.3. Sale Records. No later than the prior agreed number of days before the end of a Contract Month (the “Accounting Date“), you shall provide the Company with complete records of all Qualified Purchases (the “Sale Records“) made from (and including) the first date of the Contract Month and up to (but excluding) such Accounting Date (the “Accounting Period“). You represent and warrant at all times that the Sale Records will be true, accurate and a fair representation of the Qualifying Purchases made during the Accounting Period. In addition to the Sale Records, the Company shall also be entitled to request from you (with reasonable prior notice) that lasted annual audited statements of the Merchant prepared after the Commencement Date. If you fail to submit any Sale Records by the Accounting Date in accordance with this clause 9.3, then, without limiting our remedies under Section 16 (Termination), the Company will be entitled to charge you and you shall pay an amount equal to the average Program Fees paid by you for the last three (3) Accounting Periods, or if the latter is not applicable, an amount equal to the pending Sale Records recorded for the Contract Month,, and the provisions of clause 9.4 shall apply to the payment of such amounts.
9.4. Payment Terms. Within the prior agreed number of days from the end of each Accounting Period and subject always to clause 9.3 above, we will send you an electronic invoice in respect of the Program Fee for that Accounting Period, calculated in accordance with clause 9.2 above (the “Invoice“).
You shall pay the Program Fee due within thirty (30) days of the date of the Invoice (the “Due Date“).
If you fail to make a payment of any Invoice under this Agreement by the Due Date, then, without limiting our remedies under Section 16 (Termination), you will have to pay interest on the overdue sum from the Due Date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.4 will accrue each day at 2% a year.
In the event that you dispute any portion of an Invoice you must pay the undisputed portion of the Invoice and submit your objection in writing within fourteen (14) days from the receipt of the Invoice to the Company, with sufficient detail and any substantiation you have for your objection. If you do not submit such objection as set forth in this clause 9.3, you shall be deemed to have accepted the Invoice and irrevocably waived any claims based upon that Invoice.
9.5. Taxes. All Fees are exclusive of applicable taxes and fees. If you are required by law or otherwise to withhold or deduct any amount from the Fees, then the amounts payable by you, upon which the deduction or withholding is based, will be increased to the extent that, after all such deduction or withholding, Company receives a net amount equal to the amount that would have been paid in the absence of the required deduction or withholding. In particular the Program Fees are exclusive of VAT. Where VAT is payable in respect of some or all of the services provided under this Agreement, you must pay us such additional amounts in respect of VAT, at the applicable rate, at the same time as you pay the Program Fees.
10. Privacy. We will use information relating to identified or identifiable persons that we may collect or obtain in connection with the Platform and the Program in accordance with our privacy policy which is available at https://www.arabclicks.com/privacy-policy/ (“Privacy Policy”). To the extent permitted by applicable law, you agree that we may use personal information that you provide or make available to us in accordance with the Privacy Policy.
11. Ownership. The Company and its licensors are and will remain the owners of all right, title, and interest in and to Platform and all Program Materials, including, without limitation, all intellectual property rights. We and our licensors reserve all rights in the Platform and Program Materials not expressly granted to you in this Agreement.
12. Confidentiality. You acknowledge and agree that the Platform, its features and functionality, the Insertion Order and all terms thereof, the Program Materials and information to which you may gain access as part of the Program or while accessing or using the Platform is confidential in nature (“Confidential Information”). You shall not, directly or indirectly, use the Confidential Information for any purpose other than for which it is given and in connection with the Program, and shall not disclose the Confidential Information to any person or entity, other than your employees who have a “need to know” the Confidential Information for the purposes of fulfilling your obligations or participating in the Program. You shall use safeguard the Confidential Information against disclosure or access by others, using the same means used to safeguard your confidential information, and at least reasonable measures. This section does not apply to information and materials which we maintain publicly on our Site. You acknowledge and agree that unauthorized use or disclosure of our Confidential Information may cause harm which is irreparable and for which monetary compensation may not be a sufficient remedy and that we are entitled to seek equitable relief in order to prevent or restrain any such use or disclosure of our Confidential Information.
13. Disclaimers.
13.1. GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PROGRAM, THE PLATFORM, PROGRAM MATERIALS ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED.
13.2. TECHNICAL PROBLEMS. WE DO NOT GUARANTEE THAT THE PLATFORM OR PROGRAM MATERIALS WILL BE FREE OF ERRORS, BUGS, SECURITY BREACHES, OR VIRUSES OR OTHER MALISCIOUS SOFTWARE OR ATTACKS. THE PLATFORM MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT COMPANY, ITS CORPORATE AFFILIATES, AND LICENSORS WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS.
13.3. SALES. YOU ARE RESPONSIBLE FOR YOUR CHOICE OF THE PROGRAM TO ACHIEVE YOUR DESIRED RESULTS. WE MAKE NO WARRANTY THAT YOUR PARTICIPATION IN, OR PROMOTION OF YOUR PRODUCTS THROUGH, THE PROGRAM WILL INCREASE OR HAVE A POSITIVE EFFECT ON THE SALES OF YOUR PRODUCTS, YOUR MERCHANT WEBSITE OR YOUR REPUTATION.
13.4. AFFILIATES. WE DO NOT CONTROL OR SUPERVISE THE AFFILIATES. WE MAKE NO WARRANTY THAT THE AFFILIATES WILL PROMOTE YOUR PRODUCT OR REGARDING THE MANNER IN WHICH THEY DO SO (IF THEY DO SO), AND WHAT THEY SAY OR COMMUNICATE REGARDING YOUR PRODUCT, OR THAT THEIR EFFORTS WILL BE BENEFICIAL FOR YOU OR SALES OF YOUR PRODUCT. YOU AGREE THAT THE COMPANY, ITS CORPORATE AFFILIATES AND OUR LICENSORS WILL NOT BE LIABLE FOR THE ACTIONS OF AFFILIATES IN RESPECT OF YOU, YOUR MERCHANT WEBSITE OR YOUR PRODUCTS. IF YOU HAVE A DISPUTE WITH ANY AFFILIATE, YOU AGREE THAT THE COMPANY, ITS CORPORATE AFFILIATES AND OUR LICENSORS, ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
14.1. The Company, its Affiliates, and our licensors, shall not be liable for any exemplary, special, consequential, incidental or indirect damages of any kind, or any loss of data, revenue, profits, savings, business or sales or loss of or harm to reputation or goodwill, in connection with this Agreement or relating to or arising out of the Program, the Platform and the Program Materials (including, without limitation, your use or access of, or participation in the foregoing, or inability to do so).
14.2. Without in any way limiting the generality of clause 14.1 above, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) [loss of anticipated savings;]
(e) [loss of use or corruption of software, data or information;]
(f) [loss of or damage to goodwill; and]
(g) any indirect or consequential loss.
14.3. In no event shall the Company, its Affiliates’, and our licensors’, combined aggregate liability for any damages in connection with this Agreement or relating to or arising out of the Program, the Platform, and the Program Materials (including, without limitation, your use or access of or participation in the foregoing, or inability to do so) exceed the total amount of Program Fees paid by you to the Company, excluding Affiliate Commissions paid in connection with the Qualifying Purchases of your Products, during the six (6) months prior to bringing the claim, or one hundred U.S. Dollars (USD100.00 OR AED 367) if no such payments have been made during such period.
14.4. You agree that any cause of action that you may have arising out of or related to this Agreement, the Program, the Platform must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
14.5. The exclusions and limitations set forth in this Section 14 shall apply notwithstanding anything to the contrary and to the maximum extent permitted by applicable law: (a) even if Company, its Affiliates or licensors have been advised, or should have been aware, of the possibility of losses or damages; (b) even if any remedy in this Agreement fails of its essential purpose; and (c) regardless of the theory or basis of liability (including, without limitation, breach of contract, tort, negligence or strict liability). This Section 14 constitutes an essential part of this Agreement.
14.6. This Section 14 will survive termination of this Agreement.
15. Indemnification. You agree to defend, indemnify and hold harmless the Company, its Affiliates, our licensors and each of our respective officers, directors, employees and agents (each an “Indemnified Party“), from and against any and all demands, claims (including but not limited to third party claims brought against any Indemnified Party), damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your participation in the Program, (ii) your access and use of the Platform; (iii) activity on your Account; (iv) the Products, your Site, your activity outside of the Program; (v) the Merchant Content; (vi) your interaction with any Affiliate; (vii) any Coupons or Coupon Terms; and (viii) generally any breach by you of the terms of this Agreement.
This Section 15 shall survive termination of this Agreement.
16. Term and Termination. This Agreement is effective from the Commencement Date and until terminated by us or you (such period, the “Term”). Without limiting any of its other rights, the Company may, in its sole discretion, terminate this Agreement and your access and use of the Platform, or any part thereof, and your participation in the Program, immediately at any time and with or without cause (including, without any limitation, for a breach of this Agreement). If you object to any term or condition of this Agreement, or any subsequent modifications thereto, or become dissatisfied with the Program or Platform in any way and we fail to remedy or agree on such term or condition in good faith, you may terminate this Agreement and your participation and use of the Program and Platform by terminating your Account as specified in the “settings” or “preferences” (or similarly titled) portion in the “Account” section of the Platform.
17. Effect of Termination. Upon termination of this Agreement; (i) your Account will be terminated, your participation in the Program shall end, and you shall cease all use of the Platform and any Program Materials; (ii) you will return all Company Confidential Information; and (iii) you will pay all outstanding Program Fees. Your obligation with respect to any outstanding Program Fees or Program Fees owed for Product(s) sold a result of the Program during the thirty (30) days following termination, shall remain in effect. This Section 17 and Sections 4 (Restrictions), 6 (Warranties you Make), 9 (Program Fees and Payments – for unpaid Fees), 10 (Privacy Policy) through and including 15 (Indemnification), and 19 (General Terms) shall survive any termination of this Agreement.
18. Suspension. Without in any way limiting the generality of Section 16, the Company may also suspend or terminate (with immediate effect) your participation in the Program or access or use of the Platform, in whole or in part (including with respect to a particular Product), if we believe you, your Products or your affiliates, your activities in connection with you or your Account, the Platform or the Program, or your Products, may (i) pose a danger or harm any person or entity or the Platform or Program, damage our, our Corporate Affiliates’, our licensors’ or customers’, or other merchants’ or Affiliates’ reputation, (ii) be in breach of this Agreement; or (iii) cease to qualify or meet the requirements for enrollment or participation in the Program or (iv) comply with the Code of Conduct.
19.1. Independent Contractors. You and the Company are independent contractors. Neither your participation in the Program nor this Agreement creates a partnership, joint venture, agency, or employment relationship between us. You may not make, or undertake, any warranties, representations, commitments or obligations on behalf of Company.
19.2. Assignment. You may not assign, transfer, sublicense, delegate this Agreement, any portion thereof, or any rights, licenses or obligations you may have under this Agreement, but we may do so without restriction or notification to you. Any assignment, transfer or sublicense in violation of this clause 19.2 shall be null and void. Subject to the above, this Agreement shall bind and benefit the Parties and each of their valid successors and assigns.
19.3. Governing Law. This Agreement, and the subject matter of this Agreement and any disputes relating to the above, and our entire relationship shall be governed by and construed in accordance with the laws of the United Arab Emirates , without regard to principles of conflict or choice of laws.
19.4. Jurisdiction. All disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the Courts of the Dubai International Financial Centre, located in Dubai, United Arab Emirates, and you waive any objections to such jurisdiction, venue, or forum (including forum non conveniens). Notwithstanding the above, the Company may seek preliminary or interim injunctive or other relief in any court of competent jurisdiction worldwide.
19.5. Entire Agreement. This Agreement and all documents referenced by this Agreement constitute the entire agreement between you and Company with respect to the subject matter thereof. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in this Agreement.
19.6. Variation. This Agreement may only be amended by the Company in accordance with its terms. No waiver of any provisions or rights in this Agreement shall be a continuing waiver, unless expressly agreed by the waiving Party. Headings are for convenience and shall not be used in interpreting this Agreement. In the event any provision of this Agreement is held unenforceable, the remaining provisions shall remain in effect. Any right or remedy set forth in this Agreement is, unless expressly stated otherwise, without exclusion of, or limitation to, any rights or remedies, otherwise available under this Agreement, at law or equity. The prevailing party in any proceeding brought against the other in connection with this Agreement shall be entitled to reasonable attorney’s fees with respect to such proceeding. All notices pursuant to this Agreement shall be in writing and deemed to have been duly made as of the date delivered or transmitted, and effective upon receipt, if delivered personally, sent by air courier to the address listed in the preamble to this Agreement, or sent by electronic transmission, with confirmation received, to the facsimile number and/or email specified by the recipient in writing.
Last updated October 22 2019