Terms and Conditions
IMPORTANT NOTICE: PLEASE READ CAREFULLY
The TAC have been written in clear plain English and are respective of both the Affiliate and No High in a manner deemed to be reasonable by a reasonable thinking person. We urge all prospective and current affiliates to read and fully understand the TAC carefully before applying to be an Affiliate for No High. If you do not understand any part of the TAC you may ask a representative of the No High Affiliate Program to explain them to you in plain English. You may do this by contacting us at our website www.nohigh.com. If the representative is unable to satisfy your questions, then you should hire an attorney to have it explained to you.
If you do not agree with any part of the No High TAC then you should not apply to join the No High Affiliate Program. Once your application is accepted you should also print a copy of the current TAC and file it for your own records as these TAC may change at any time and without notice.
No High Affiliate Program: Legally Binding Terms and Conditions
Who is No High and Who is the Affiliate in these TAC?
The following TAC represent a legally binding agreement between you, the Affiliate, and us, No High, and it will govern your participation in the No High Affiliate Program. As mentioned above, we shall refer to these Terms and Conditions as the “TAC” hereinafter. We may use references such as “we” or “us” or “our” or “No High” when referring to Omni Theme, LLC, a company incorporated under the laws of Nevada, in the United States of America. References to “you” or “affiliate” are references to you, the individual or company who applies to join the No High Affiliate Program and who signs these TAC to indicate their agreement to these TAC and their wish to participate in the No High Affiliate Program.
How do I Indicate my Agreement to These TAC?
By continuing on with your application or clicking “I Agree” below, you are agreeing to the TAC set forth below. Your application and participation in the No High Affiliate Program is subject to our acceptance of your Application Form – which shall enter you into a legally binding agreement with No High subject to the terms in this TAC. These TAC shall always apply and are subject to change at any time in accordance with our rights to reserve the ability to change the TAC. Your continued use of our brand, affiliate links, marketing material, intellectual property, or anything else deemed to be the property of No High will be bound and subject to any and all changes made to the TAC.
Can the TAC be Changed?
Yes – we reserve the right to change any provision of the TAC at any time in our sole discretion and acting unilaterally without reference to you or your consent and without incurring any liability to you. Basically, as long as our change does not have a negative financial impact on your currently accrued earnings, we reserve the right to make changes to t
Except in the case of emergencies, such as cheating, fraud, piracy, mistakes in these TAC or other events of an urgent nature, or beyond our control, we will use a reasonable amount of effort to provide you with an email notifying you of the changes at least fourteen (14) days prior to the date on which we intend them to take effect, but where we do not do so any such changes will take effect upon the posting of the amended TAC. You should monitor these TAC frequently to ensure that you are aware of and agree to the latest version. YOU WILL BE BOUND BY ALL SUCH CHANGES AND IF YOU DO NOT AGREE TO BE BOUND YOU SHOULD TERMINATE YOUR MEMBERSHIP OF THE NO HIGH AFFILIATE PROGRAM IN ACCORDANCE WITH YOUR RIGHT TO DO SO SET OUT IN CLAUSE 8 OF THESE TAC. THIS TERMINATION RIGHT IS YOUR ONLY REMEDY IN RELATION TO ANY CHANGES MADE BY US TO THESE TAC.
1. Definitions used in these TAC
1.1 When used in these TAC each of the following words or phrases shall have the meanings set out below. Capitalized words and phrases that are not defined below (especially those relating to the calculation and payment of Commission) are defined in Clause 4 (Your Commission) below:
Affiliate Manager means your point of contact at No High in relation to the No High Affiliate Program, as notified by us to you from time-to-time.
Affiliate Program Platform shall mean:
Affiliate Program shall mean the rights and obligations conferred upon you by these TAC once we have accepted your Application Form and confirmed the same to you in writing.
Affiliate Program Site shall mean the site located at http://www.nohigh.com or such other URL as may be designated by us from time to time.
Application Form shall mean the Affiliate Program application to join form available at http://www.nohigh.com or other such URL as may be designated by us from time to time.
Group shall mean us (Omni Theme, LLC) and all of our group of companies, including our subsidiary companies and any holding company of ours, and any subsidiary of such holding company, and includes all of the companies providing services under the branding or Trade Marks “No High,” “No High Oils” and “No High CBD.”
Links(s) shall mean the creatives, banners, text links and other links linking Your Site(s) to Our Site(s) located on the webpage http://www.nohigh.com or provided to you by your Affiliate Manager.
Marks means any trademark, service mark, brand name, trade name, logo or sign used, registered, or applied for by us or any member company or other entity of our Group, including, but without limitation, the following: No High, Stay Grounded, Mary’s Berry.
Materials shall mean the Trade Marks, Links, Marketing Codes, and Images.
Qualified Customer shall mean an Internet user without a prior User Account (or any other type of user account) on any of Our Site(s) and who: (i) accesses the Group Site(s) directly through a Link or enters a Marketing Code; (ii) opens a new User Account; and (iii) makes a purchase, by way of online checkout using their User Account. Qualified Customers may become unqualified if they return all or any portion of their Qualified Purchase, request a refund, or file a credit card dispute/chargeback within 185 days of such purchase.
Qualified Purchase shall mean a purchase made by a Qualified Customer that whereby the payment method used by the Qualified Customer has been authorized and captured in exchange for the relevant products on Our Site(s) that such Qualified Customer has requested as part of their order.
Group Site(s) shall mean:
Tracker shall mean the unique tracking hyperlink (URL) to Our Site(s) provided by us to you via the Affiliate Program Platform for the purposes of tracking the number of Qualified Customers calculating the amount of Commission due to you.
Trade Secrets shall mean any know-how, trade secrets, marketing information, business plan, customer lists, network clients list, suppliers’ information, confidential information or other related information concerning or relating to our activities or those of any entity existing within our Group which is not in the public domain.
Your Site(s) means those website(s) that are owned and/or controlled by you and which are submitted by you in your Application Form as your websites that are to be included in the No High Affiliate Program.
1.2 The headings of the individual clauses of these TAC are solely for the sake of convenience and will not be taken into account in the interpretation of these TAC.
1.3 Where the context requires, words in the singular shall include the plural and vice versa.
2. How to Join the No High Affiliate Program
2.1 What you must do to join. In order to join the No High Affiliate Program, you must complete and send us the Application Form which is available at http://www.nohigh.com. You should take care to include in the Application Form all the information requested by the form: your failure to do so may result in a delay in considering your application or our rejection of your application.
2.2 Our right to accept/reject your application. We will review the Application Form that you send to us. We will then – at our sole discretion – either: (i) accept your application; (ii) reject your application; or (iii) request further information from you, reserving the right to accept or reject your application at a future date. Please note that our acceptance or rejection of your application is entirely at our discretion and we have no obligation to accept any application nor shall we have any liability to you or anyone else in relation to any applications that we choose to reject.
2.3 Examples of unacceptable affiliate activities. You should note that one of the reasons why we may reject your application (or terminate your membership of the No High Affiliate Program subsequently) is if we take the view that any of the content included on any of Your Site(s) is unacceptable to us. Examples of content that would be unacceptable to us are content that is: (i) obscene or indecent, including for these purposes both so-called ‘hard’ and ‘soft’ adult content; (ii) discriminatory, including on the basis of gender, race, religion, disability or sexual orientation; (iii) hostile or offensive, including so-called ‘hate speech’ and threats or incitements to violence; (iv) fails to respect the legal rights of others, including infringements of the intellectual property rights of others, such as file-sharing or other forms of intellectual property piracy; (v) defamatory of others; or which is (vi) utilizing our marketing codes in a manner that is not acceptable to us, such as placing our discount offer coupon codes in plain view to promote our program, or to place such discount offer coupon codes on what would be considered a “couponing” website. We do not allow our sales to be poached by coupon affiliates and will not pay out any affiliates that engage in such activities.
3. Successful Applications: your Engagement as a No High Affiliate
3.1 Confirmation of your membership of the No High Affiliate Program. Where we accept your application to join the No High Affiliate Program the following shall apply:
3.1.1 We will send you written confirmation (which may be by email) which will include: (a) your Tracker. If you do not receive this email, you may log in to www.nohigh.com and obtain your Tracker via the dashboard.
3.1.2 From the date of our written confirmation until such time as your membership of the No High Affiliate Program shall terminate (as described in Clause 8 of these TAC) you will have the right to market and promote Our Site(s) on Your Site(s) solely – and only – by placing Our Links or Marketing Codes on Your Site(s) and subject at all times to all the rest of these TAC.
3.2 Your rights and obligations as a member of the No High Affiliate Program. Your right to take part in the No High Affiliate Program by marketing and promoting Our Site(s) as described in Clause 3.1 above is at all times subject to the following obligations, limitations, and restrictions, which you agree to perform and observe. Your breach or failure to perform or observe any of them will entitle us to terminate your membership of the No High Group Affiliate Program immediately on written notice to you and without any liability to you or, at our sole discretion, to require you to remedy your breach or failure pending which we may suspend your rights under these TAC and withhold indefinitely any Commission due to you:
3.2.1 Regulatory compliance: you agree to comply with all of the laws and regulations applicable to Your Site(s) and also with any laws and regulations applicable to Our Site(s) which we may notify you from time-to-time as being necessary for our affiliates to comply with, in particular, those which the terms of our licenses require us to pass through to our affiliates.3.2.2 Marketing compliance: you must fully comply with our most recent up-to-date guidelines in relation to the use of the Link(s) or Marketing Codes. These guidelines will be posted on the No High Affiliate Program Site. They may be amended from time to time by us at our sole discretion and you should, therefore, visit the No High Group Affiliate Program Site regularly so as to ensure that you are aware of, and in compliance with, the latest version of these guidelines.
3.2.3 Personal rights: the rights that we grant to you in these TAC are personal to you. You may not assign or sublicense your rights and/or your obligations under these TAC, in whole or in part, to any third party. The Link(s) and the Marketing Code are provided to you for use solely and exclusively by you on Your Site(s) on and subject to these TAC and you agree that you will not provide them in any manner to any other person for any manner of use by such other person.
3.2.4 Non-exclusivity: the rights that we grant to you in these TAC are non-exclusive and we will grant identical or similar rights to numerous other No High Affiliates. You shall not claim or hold yourself out to any third party as having any type of exclusivity in your relationship with No High or Our Site(s) at any time.
3.2.5 No obligation on No High to operate Our Site(s). You acknowledge and agree that nothing, whether in these TAC or anywhere else, shall in any way be construed as imposing any obligation whatsoever on us (or any of our Group entities) to operate or continue to operate Our Site(s), either at all or in relation to any particular markets, languages, territories or products, and all of the business represented by Our Site(s) shall be operated and managed (or not) by us and our Group entities in our sole discretion and subject to our unilateral control at all times.
3.2.6 Information provision. You agree to provide us with all such information as we may reasonably request for regulatory purposes, including as may be requested by us in relation to any reports or information that we may wish or need to provide to any Tax Authority.
3.2.7 Your Site(s): You agree that you are solely responsible for the development, operation, and maintenance of Your Site(s) and for all materials that appear on Your Site(s) at any time. You will ensure that no material appears at any time on Your Site(s) which results or could result in Your Site(s) being confused with Our Site(s).
3.2.8 Conflicts of interest. You will not market or promote Your Site(s) in any way which might compete with our and/or our Group’s own marketing efforts unless you have received prior written approval from us specifically permitting you to do so. By way of example only, the following activities will be considered to be activities, which if undertaken by you would compete with our Group’s own marketing efforts and which would, therefore, be prohibited by this Clause 3.2.8:
- (i) the placement of Link(s) on any internet sites on which our Group places advertisements for Our Site(s);
- (ii) the placement of a Link on any internet site other than Your Site(s); and
- (iii) the promotion of the Our Site(s) by you by way of keyword advertising with internet search engines;
- (iv) the placement of our discount or coupon codes on any internet sites that would be considered a couponing or bargain-hunting website, such as RetailMeNot.com for example.
and a breach by you of these provisions will constitute a breach of these TAC and we will have the right to (i) terminate these TAC immediately in the event of such breach; and (ii) indefinitely withhold from you any Commission accrued to your benefit through such competitive activities.
3.2.9 No representation. You may not hold yourself out to be, or to represent, any of us or any Group entity of ours or our or its agents, or employees, in any forum including any social networking site.
3.3 Money laundering and due diligence. You agree, upon our request, to submit to us copies of such personal documentation (for example a copy of your passport or other government-issued identification) or (if you are a company) such corporate documents as we may specify in order to permit us to complete our customer and business due diligence obligations in accordance with applicable money laundering laws and regulations from time to time in force.
3.4 Marketing and promotion.
3.4.1 Use of Link(s)/Marketing Codes. You agree to place the Link(s) or Marketing Codes on Your Site(s) and to ensure that the Link(s) is/are properly formatted at all times. You will not create any link from Your Site(s) to Our Site(s) other than the Link(s) without our prior written consent nor will you modify any of the Link(s) without our prior written approval.
3.4.2 Banners. You will only place banners forming part of the Link(s) on Your Site(s) by linking to the banner server made available by us from time-to-time for this purpose and you will employ no other means without our prior written approval.
3.4.3 No High goodwill and reputation. You acknowledge that the placement of the Link(s) on Your Site(s) and your conduct as an affiliate has the potential to inflict substantial damage to the Trade Marks and to the reputation and goodwill of us and our Group and that you will at all times act in a manner that will not harm such Trade Marks, goodwill and reputation.
3.4.4 Good Practice. You will use your best efforts to promote Our Site(s) in a manner that is consistent with good business ethics and which does not reflect adversely upon our name, image or reputation and that of our Group and brand ‘No High.’
3.4.5 Prohibited Jurisdictions. You will not, nor will any person on your behalf or with your permission or authority, explicit or implied, market or promote Our Site(s) to residents of the Prohibited Jurisdictions and no resident of any Prohibited Jurisdiction shall be permitted to become a Qualified Customer.
3.4.6 Territorial licensing restrictions: In conducting your marketing and promotional activities under these TAC you will comply with any jurisdictional limitations applying to Our Site(s) which are imposed under the various license(s) applicable Our Site(s), including only marketing any of Our Site(s) which are targeted at and licensed by a particular jurisdiction to the residents of that jurisdiction.
3.4.7 Compliance with our instructions. You agree to comply with all reasonable instructions received from us in relation to your activities in marketing and promoting Our Site(s) including, without limitation, any instruction received from us requesting you to post on Your Site(s) information regarding new features and promotions on Our Site(s) and any instructions such as style guidelines that we may issue in relation to the Licensed Materials generally.
3.4.8 No incentivization of players. You agree that without our prior written approval you will neither offer nor provide incentives (financial or otherwise) to any Qualified Customers or any potential Qualified Customers.
3.4.9 British advertising self-regulation. Where you publish on any of Your Site(s) any advertising for Our Site(s) which is either: (i) intended to come to the attention of persons in Great Britain; or (ii) likely to come to the attention of such persons, you will ensure that such advertising is socially responsible generally and in particular complies with the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) at https://www.asa.org.uk. We shall have the right to terminate these TAC on written notice and without any liability to you if, in our reasonable opinion, you are in breach of the obligations set out in this Clause.
4. Your Commission
4.1 In this Clause 4, the following defined words and phrases shall mean as set out below:
Gross Revenue shall mean the total of the Qualified Customer’s cart at the time of their purchase, not including shipping, at the Group Site(s).
Expenses shall mean, with respect to Group Site(s) only, the aggregate of: (i) bonuses or promotional amounts given to the customer, (ii) uncollectible revenues (including any charge-backs, payment reversals etc.), (iii) a fixed amount for legal, branding and operational costs, (iv) applicable local taxes payable by us or our relevant Group entity at the rate in force on the date of due payment (which shall include but not be limited to taxes and value-added tax; and/or (v) reasonable payment processing services charges that are paid to third parties in respect of the customer’s payment to No High for the value of goods received and shipping.
Revenue Share Commission shall mean, as applicable, that percentage of: (a) No High Gross Revenue less Expenses in any calendar month as-is from time-to-time published on the relevant page(s) of the No High Group Affiliate Program Site.
Threshold Commission shall mean, for each of Our Site(s) on a per-Site basis:
- (i) $100 USD (one hundred US dollars); or,
- (ii) 100 EUR in the event that you request to be paid in Euros.
4.2 Right to Commission. Subject to your compliance with these TAC and in particular to Clause 4.3 below, we will pay you a Commission which shall be Revenue Share Commission (the “Commission”). You agree that if the form of Commission that you receive from us is Revenue Share Commission, you will generate a minimum of one (1) Qualified Purchase for each of Our Site(s) which you market pursuant to these TAC for each consecutive period of ninety (90) days commencing on the date upon which we confirmed our acceptance of your Application Form to join the No High Group Affiliate Program. Please note the provisions of Clause 8.9 below which makes clear that your right to receive Commission ceases when these TAC are terminated and come to an end.
4.3 IMPORTANT: Duration of your right to be paid Commission. Your Commission:
4.3.1 will only start to be paid to you in relation to anyone (1) of Our Site(s) until such time as the Commission generated in respect of that individual Site equals or exceeds the Threshold Commission applicable to that individual Site; and4.3.2 will be payable in respect of each Qualified Customer only on purchases made directly through your Tracker. Should a Qualified Customer make additional purchases, and not through your Tracker, you shall not be entitled to a commission on such Qualified Purchases
4.4 Existing Users. You will not be entitled to receive any Commission for a new User Account opened through a personal computer or mobile device (including, without limitation, a desktop computer, portable computer, cellular phone, PDA, tablet, or any other type of cellular device now existing or devised in future) (each, a “Device”), if a User Account has previously been opened through use of that Device (unless such new User Account was on a Group Site and the existing User Account was on a different Group Site or vice versa) regardless of whether you are entitled to receive Commission for the User Account opened previously using that Device.
4.5 Wholesale Customers. In the event that anyone (1) or more Qualified Customers becomes a Wholesale Customer, you acknowledge and agree that with effect from the first day of the calendar month falling immediately after the date of such determination, the relevant Qualified Customer(s) shall cease to be tracked by us as having been referred by you and you will no longer be entitled to receive any Commission in respect of such Qualified Customer.
4.6 Non-qualifying customers. You acknowledge and agree that:
4.6.1 the following individuals may not and will not qualify as Qualified Customers:
- (i) close family members of yours and other members of the same household as you; and/or
- (ii) employees of and consultants contracted on a permanent basis to you; and
4.6.2 may not and will not sign up for a User Account using the Link(s) or Marketing Codes and may not in your personal capacity qualify as a Qualified Customer.
4.8 Calculation and payment of Commission. The Commission will be calculated and paid as follows:
4.8.1 Use of Trackers & Marketing Codes. In order to calculate the Commission due to you, we will use the Trackers and/or Marketing Codes provided by us and as used by you. You must use these correctly and in accordance with any instructions that we give you and we will have no obligation to pay you any Commission if you fail to use the Trackers and/or Marketing Codes, or use them incorrectly or in a manner contrary to our instructions from time-to-time.4.8.2 Our calculations are final. You agree that our measurements and calculations in relation to the calculation and payment of Commission shall be final and not subject to review or appeal, save in the case of manifest error.
4.8.3 Accounting periods. We will account to you for the Commission due to you on a per calendar month basis and pay you the Commission due in respect of any calendar month no later than thirty-one (31) days after the end of the calendar month in which the Commission arose. For example, the Commission due to you in relation to the calendar month of June 2016 will be paid to you no later than 31st July 2016.
4.8.4 Method of payment. Subject to the TAC set out in Clause 4.6 above, you must open a PayPal account in order to receive your Commission from us. Commission due to you will be paid into your PayPal account except if you are generating over $5,000 per month in Commissions, whereby you can make a request to receive your Commission in the form of a wire transfer into that other account that we will have requested from you and that you will have detailed by you in the Application Form that you submitted to us. You may only receive Commissions into (1) PayPal account for the purposes of paying out your Commission.
4.9 Fraud. We retain the right to review all Commission for possible fraud on your part or on the part of any Qualified Player. In the event that we reasonably consider that fraud has occurred in relation to the generation of any Commission, we shall be entitled to withhold such Commission or set-off an appropriate amount from future payments of Commission. For the purpose of these TAC the term “fraud” shall include, but shall not be limited to, actual or attempted: (i) chargeback by a Qualified Customer in relation to their initial Qualified Purchase, (ii) collusion on the part of the Qualified Customer with any Affiliate on Our Site(s); (iii) you or any third party offering or providing any unauthorized incentive (financial or otherwise) to potential Qualified Customers (including, without limitation, the sharing by you of any Commission earned by you through your promotion of Home Games); (iv) the creation by Qualified Customers of multiple User Accounts in order to abuse promotions or bonuses on offer to customers; or the unauthorized sharing by you of any discount or coupon codes.
5. Your Representations and Warranties
5.1 You represent, warrant and undertake to us and to the other entities comprising our Group as follows:
5.1.1 that you have the ability, experience, expertise, and resources to perform all of your obligations as set out in these TAC;5.1.2 that at no time will any of Your Site(s) contain, or link to, content that is: (i) obscene or indecent, including for these purposes both so-called ‘hard’ and ‘soft’ adult content; (ii) discriminatory, including on the basis of gender, race, religion, disability or sexual orientation; (iii) hostile or offensive, including so-called ‘hate speech’ and threats or incitements to violence; (iv) fails to respect the legal rights of others, including infringements of the intellectual property rights of others such as file-sharing or other forms of piracy; (iv) defamatory of others; (v) infringing upon the rights of our intellectual property; (vi) or sharing our unique coupon code offers without our prior, written consent.
5.1.3 that there is no legal, commercial, contractual or other restriction, which precludes or might preclude you from fully performing your obligations as set out in these TAC and that if there should, at any time occur anything to prevent you from wholly fulfilling your obligations hereunder, you will notify us immediately and we shall be entitled to terminate these TAC by immediate notice, without advance warning and without the requirement to make any further payments to you following such termination; and
5.1.4 that you have evaluated the laws (and in particular all laws relating to the promotion of selling hemp-derived cannabidiol (CBD) in your target jurisdiction(s)) relating to your activities and obligations as envisaged and set out in these TAC and have concluded that you can enter into these TAC and fulfill your obligation as set out in them without violating any applicable rule of law.
6. Intellectual Property Rights
6.1 For the sole purpose of the exercise of your rights and the performance of your obligations set out in these TAC hereunder and for the term set out in Clause 7.1 below, we grant you a limited, non-exclusive, non-transferable and revocable license to use: (i) the Trade Marks solely in connection with the placing of the Link(s) and Marketing Codes on the Your Site(s); and (ii) the Images on Your Site(s) for the purpose of promoting our Site(s). You are not authorized to modify or amend any of these Licensed Materials but you may re-size the Licensed Materials if you maintain the original ratios. This license may not be sub-licensed, assigned or otherwise transferred by you in any manner.
6.2 You undertake not to make use of the Licensed Materials or any of our Trade Secrets in any manner not explicitly set out in these TAC without our prior written consent. In particular, you may not:
6.2.1 register or apply to register a domain name; or6.2.2 bid on any internet search engine for a search term; or
6.2.3 use any sub-domain name; or
6.2.4 open or operate any social media account which uses any name, logo or trademark; or
6.2.5 register or apply to register any trademark in any jurisdiction; which includes, incorporates or consists of, or is confusingly similar to, the Trade Marks.
6.3 In respect of any matter to which Clause 6.2 above applies, you will inform us:
6.3.1 at the commencement of these TAC of any such matters which have arisen prior to the commencement of these TAC; and6.3.2 immediately of any such matters which arise after the commencement of these TAC.
In all cases, you will be required and you agree to transfer the domain name, search term, sub-domain name or Trade Mark (as the case may be) or the benefit of any application for them, free of charge, to any company we nominate. Until the relevant domain name, search term, sub-domain name or Trade Mark or application for the same is transferred to our nominated company, you will hold that asset for and on behalf of us (or any nominated company in our sole discretion) wholly and exclusively and you will not allow the relevant registration (or application) to lapse but will instead maintain it in accordance with our directions. YOUR OBLIGATION TO TRANSFER INTELLECTUAL PROPERTY ASSETS REGISTERED OR APPLIED TO BE REGISTERED AS ENVISAGED IN CLAUSE 6.2 EXTENDS TO INTELLECTUAL PROPERTY ASSETS REGISTERED OR APPLIED TO BE REGISTERED PRIOR TO THE DATE UPON WHICH THESE TAC TAKE LEGAL EFFECT BETWEEN US. We may, in our sole discretion, withhold all Commission payments that may be due to you until the relevant intellectual property is vested in our nominated company to our satisfaction.
6.4 You hereby acknowledge that all information relating to all of the Qualified Customers (including all personal data, as that term is defined in Section 1 of the Data Protection Act 1998) is our exclusive and sole property and that you have and shall have no rights therein whatsoever to collect, harvest, or use such data in any way shape or form.
6.5 We and each and every one of our Group entities reserve all of our intellectual property rights in the Licensed Materials and Trade Secrets. You will not assert the invalidity, unenforceability or contest the ownership of the Licensed Materials or Trade Secrets in any action or proceeding whatsoever and shall not take any action that may prejudice any Group entity’s rights in the Licensed Materials or in the Trade Secrets.
6.6 Nothing herein shall be considered or understood to be a transfer by us or any Group entity of ours to you of any rights whatsoever in the Licensed Materials or Trade Secrets or any other of our or their intellectual property rights whatsoever. All goodwill in the Licensed Materials generated as a result of your use of the Licensed Materials (and in particular the Trade Marks) under these TAC shall belong to us and you agree to execute any document necessary to transfer such goodwill to us.
7. Term and Termination
7.1 These TAC shall commence and come into effect from the date of your submission of your Application Form and, subject always to our acceptance of your Application Form and confirmation of your membership of the No High Group Affiliate Program, shall continue in full force until they are terminated in accordance with the provisions for termination set out in these TAC.
7.2 You may terminate these TAC at any time, with or without cause subject to provide us with prior written notice. We may terminate these TAC at any time subject to providing you with no fewer than seven (7) days’ prior written notice.
7.3 In the event of the occurrence of any of the following:
7.3.1 any breach by you of these TAC; or7.3.2 your player account opened with us for receipt of your Commission is closed by us or our Group entities for any reason whatsoever; or
7.3.3 you use any materials, including graphics, icons, logos, branding or artwork, which are not obtained from our approved web resources or direct from your affiliate manager. we may: (i) terminate these TAC immediately; and/or (ii) at our option indefinitely withhold from you any Commission accrued to your benefit.
7.4 In the event that you make any assignment for the benefit of your creditors or make any composition with creditors; or have appointed, or shall be the subject of any notice of a receiver or holding company; or shall be the subject of a voluntary or compulsory liquidation (other than for the purpose of a solvent reconstruction or amalgamation); or are made the subject of any administration order or insolvency procedure or such analogous event; or cease to carry on business or (being a natural person) are deemed either unable to pay your debts or as having no reasonable prospect of so doing we may terminate these TAC immediately.
7.5 Without limiting any other of our rights and remedies, we may terminate these TAC immediately if we determine in our sole discretion that you have become a competitor of yours and/or any other entity within our Group.8.6 We shall further have the right to terminate these TAC with immediate effect on the provision of written notice to you:
7.6.1 if you carry out any action which we believe might prejudice our or any Group entity’s relationship with any partner, affiliate, or any of the Group’s contractual or prospective relationships; or7.6.2 if we or any other entity within the Group is ordered or required by any Authority to terminate its relationship with you or cease to operate any of Our Site(s) or any services or to sell any of the products available on any of Our Site(s), or any part thereof, with immediate effect.
7.7 Termination of these TAC shall not extinguish either of the parties’ obligations under these TAC which by their intention or context are intended to survive the termination of these TAC.
7.8 Notwithstanding Clauses 7.7 above and for the avoidance of doubt, you agree that we shall not be liable to pay any Commission for Qualified Customers where such Qualified Customers are generated by the Link(s) and/or Marketing Codes following the termination of these TAC.
7.9 Following the termination of these TAC and the payment to you of monies due to you as at the time of termination, we shall have no obligation to make any further Commission payments to you. For the avoidance of doubt, this means that if the agreement between us represented by these TAC is terminated, you will receive no Commission for Qualified Customers in respect of the period after termination: you will only receive Commission due to you up to the date of termination and not afterward.
7.10 Upon termination:
7.10.1 you must immediately remove from Your Site(s) and cease to use all Link(s), Marketing Codes, Trade Marks and any other materials of any form provided by or on behalf of us to you pursuant to these TAC which contain any of our Trade Marks or other intellectual property and you will either permanently and securely delete all such materials and documents, or return them all to us; and7.10.2 you must promptly return to us any confidential information in your control or possession in whatever form; and
7.10.3 all licenses and rights granted hereunder to you shall immediately terminate; provided that the above shall not prevent you linking to the homepage of Our Site(s) to the extent that you do so for your own personal, non-commercial use.
8. Disclaimer and Limitation of Liability
8.1 You acknowledged that neither Our Site(s) or the associated products will be error-free and that neither we nor any of our Group entities will be liable for the consequences of any errors. Further, neither we nor any of our Group Entities makes any representation or warranty, express or implied to you as to any matter contemplated by these TAC including the quality, merchantability, fitness for a particular use or suitability of Our Site(s) or the associated products.
8.2 Under no circumstances shall either party be liable to the other for indirect, incidental, consequential, special or exemplary damages (including any loss of revenue, profits or data) arising from any provision of these TAC or matters related to these TAC. Our aggregate maximum liability arising with respect to these TAC for any reason will not exceed the total Commissions paid or payable to you pursuant to these TAC. The term “indirect, incidental, consequential, special or exemplary damages” as used in this Clause 8.2 does not include any additional or increased direct costs incurred by No High and/or any of our Group entities caused by your breaches of these TAC.
8.3 You represent and warrant that you have independently evaluated the desirability of acting as an affiliate of No High and, other than as set forth herein, are not relying on any representation, guarantee or statement made by us.
You will defend, indemnify and hold No High and our Group entities and our shareholders, directors, officers, employees, agents and representatives, agents, successors and assigns harmless from and against any and all liabilities, losses, damages, and costs, including attorney’s fees and costs, resulting from, arising out of, or in any way connected with (a) any actual or alleged breach by you of any warranty, representation or undertaking by you contained in these TAC; (b) the performance of your duties and obligations under these TAC; (c) your negligence in performing your duties and obligations under these TAC; and/or (d) any injury directly or indirectly caused by your negligence or intentional acts or omissions or the unauthorized use of the Link(s). You shall also indemnify and hold No High and our Group Entities and our officers, shareholders, employees, directors, agents, successors and assigns harmless at all times from any and all third party claims, actions, suits, demands, damages, losses, liability and all costs and expenses (including, but not limited to, attorneys’ fees) relating to the development, operation, maintenance and content of Your Site(s).
All Trade Secrets and all information concerning the No High and our Group entities’ operations, structure, personnel, principals, or any other data that can reasonably be considered internal-only information shall be kept in strict confidence by you. This includes (but is not limited to) any correspondence between us and you and any information regarding the number of customers you are sending or have sent to Our Site(s), Commission amounts and any other financial, statistical or other information that is provided by us to you, whether or not such information includes a mark affirming its confidentiality. All this information shall remain confidential after the expiry of these TAC until such times as the information ceases to be confidential, other than by breach of these TAC or any additional confidentiality agreement that we have required you to sign. We may require you to sign a confidentiality agreement if, in our sole discretion, we determine that the information to be conveyed to you warrants such additional covenants of confidentiality.
11. Independent Investigation
You confirm that you have read these TAC, have consulted with your own legal advisors, and understand and agree to all the terms and conditions set out in these TAC. You confirm that you have independently evaluated the desirability of participating in the No High Group Affiliate Program and you are not relying on any representations, guarantee or statement other than as set forth in these TAC.
12. Changes to TAC
We reserve the right to change any provision of these TAC at any time in our sole discretion and acting unilaterally without reference to you or your consent and without incurring any liability to you. Except in the case of emergencies, such as cheating, fraud, piracy, mistakes in these TAC or other events of an urgent nature, or beyond our control, we will use our reasonable endeavors to provide you with an email notifying you of the changes at least fourteen (14) days prior to the date on which we intend them to take effect, but where we do not do so any such changes will take effect upon the posting of the amended TAC. You should monitor these TAC frequently to ensure that you are aware of and agree to the latest version. YOU WILL BE BOUND BY ALL SUCH CHANGES AND IF YOU DO NOT AGREE TO BE BOUND YOU SHOULD TERMINATE YOUR MEMBERSHIP OF THE NO HIGH GROUP AFFILIATE PROGRAM IN ACCORDANCE WITH YOUR RIGHT TO DO SO SET OUT IN CLAUSE 7 OF THESE TAC. THIS TERMINATION RIGHT IS YOUR ONLY REMEDY IN RELATION TO ANY CHANGES MADE BY US TO THESE TAC.
13.1 All notices, requests, demands and all other communications (unless specified otherwise in these TAC) under these TAC shall be in writing and shall be deemed received 72 hours after being posted by registered mail, or if delivered in person or sent by email, at the time of delivery to the parties. Notices from you to us in connection with these TAC or the No High Group Affiliate Program generally shall be sent via email to email@example.com.
13.2 These TAC shall, upon execution, constitute the entire agreement between the parties with respect to the subject matter hereof and they cancel and supersede all previous understandings and agreements, both oral and written, between the parties in respect of the subject matter of these TAC.
13.3 It is hereby agreed that you are an independent contractor and neither these TAC nor any term or condition contained in them, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise between the parties. THE RELATIONSHIP BETWEEN THE PARTIES IS THAT OF AN AFFILIATE RELATIONSHIP ONLY.
13.4 If any provision of these TAC shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
13.5 No waiver of any breach of any provisions of these TAC shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision of these TAC and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
13.6 These TAC and any matters relating hereto to them be governed by, and construed in accordance with, the laws of the State of Nevada, United States. You irrevocably agree that, subject as provided below, the courts of the Nevada shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning these TAC and any matter arising in relation to them and irrevocably waive any right that you may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Nothing in this Clause shall limit our right to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
13.7 For the avoidance of doubt you agree that under no circumstances will you have the authority to bind, obligate or commit in any way whatsoever or to assume debts or obligations on our behalf, nor will you represent us as having such authority at any time.
13.8 The English language version of these TAC shall be the prevailing version in the event of any discrepancy between any translated versions of these TAC.
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