PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY. IT IS A LEGAL CONTRACT AND ITS TERMS ARE BINDING ON YOU.
This agreement (the “Agreement”) is a contract between you (the “Affiliate”) and us (“Arkham”) (each a “Party”and together the “Parties”). It describes how we will work together and other aspects of our business relationship.
The Affiliate Program Agreement applies to your participation in Arkham’s Affiliate Program as described in this Agreement (the “Affiliate Program”). These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them. If you disagree with these terms at any time, you must immediately cease participation in our Affiliate Program and notify us of your intention to terminate.
We periodically update this Agreement and Arkham’s Terms ofService, found at arkhamintelligence.com/terms-of-service (the “Terms of Service”), which are expressly incorporated into this Agreement by reference and form part of this Agreement. We might also choose to amend or replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. We may also update or amend these terms at any time, with or without notice to you. If we update or replace the terms we or the Affiliate Tool will let you know via electronic means, which may include updating this web-page, an in-app notification or by email. Any changes to this Agreement or the Terms of Service will take effect and be binding on you immediately when posted, so you should check this page and the Terms of Service regularly to ensure you consent to the terms of the Affiliate Program. If you don’t agree to the update or amend mentor replacement of this Agreement including the Terms of Service, you must choose to terminate your participation in the Affiliate Program as we describe below.
1. Definitions
“Affiliate Lead” means a User prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Tool.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Tool” means the tool, application, and/or interfaces that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
"Agreement" means this Affiliate Program Agreement and all materials referred or linked to in here including Arkham’s Terms of Service.
“Commission” means an amount described in the Affiliate Tool (or if applicable, in the Program Policies) for each User Transaction. Commissions may include money, Arkham points, or other rewards as designated in the Affiliate Tool.
“User” means the authorized actual user of the Arkham Products who has purchased or signed up for the Arkham Products after being an Affiliate Lead.
“User Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the “User Transactions” section of this Agreement. User Transactions may include user purchases or user signups, as further described in the Affiliate Tool.
"Arkham Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services or our Users post to our services.
“Arkham Products” means offerings fromArkham for which Affiliate Program offerings are integrated into the Affiliate Tool.
“Program Policies” means the policies set out at the landing page: arkhamintelligence.com/affiliates, where we will provide all the up-to-date guidelines and policies for the Affiliate Program.
“Other Products” means those products and services that we offer which are not eligible for Commissions and/or are not included in the Affiliate Tool.
“Subscription Service” means any paid service offered by us.
"We", "us", “our”,and “Arkham” means Arkham Intelligence, Inc.
“You” and “Affiliate” means the Party, other than Arkham, entering into this Agreement and participating in the Affiliate Program.
2. Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of our own, or third parties, and to work with other parties in connection with the marketing and use of similar services and products of third parties.
3. Affiliate Acceptance
Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty(30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrollment criteria set out in the Program Policies Page, if applicable. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.
You will comply with the terms and conditions of this Agreement, and Arkham’s Terms of Service, at all times, including any applicable Program Policies.
4. User Transactions
a. Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the AffiliateTool from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission as described in the Affiliate Tool (or if applicable, in any written Program Policies) for each new User who completes an applicable User Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The date of any applicable User Transaction is the date on which any action is taken by User and accepted by us or, in the case of a Paid Service, by the date of the first purchase or sign up (as applicable) of the Paid Service by the User. You will receive a Commission payment only for the User Transactions which are handled by the Affiliate Tool, regardless of any additional transactions or purchases made by that User with or from Arkham or on Arkham platforms including any Subscription Service.
b. Eligibility. To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section of this Agreement, (ii) a User Transaction must have occurred, (iii) a User must remain a User during the locking period in the Affiliate Tool (or if applicable, in any Program Policies),and (iv) the User must be a bona fide, genuine user of the Arkham platform, to be determined in Arkham’s sole and absolute discretion. You are not eligible to receive Commission or any other compensation from us based on transactions forOther Products or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable User objects to or prohibits such compensation or excludes such compensation from its payments to us or Affiliates; (iii) the User has paid or will pay such commissions, referral fees, or other compensation directly to you, or (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem, in our sole and absolute discretion, to breach the terms or spirit of the AffiliateProgram. In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our sole discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
c. Acceptance and Validity. You will only be eligible for a Commission payment for any User Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by us. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential User, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing registered users or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our sole discretion. Where an Affiliate Lead relates to a Subscription Service, if the Affiliate Lead does not purchase the Subscription Service within the time period described on the Affiliate Tool (or if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
d. Engagement with Prospects. Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between us and an Affiliate Lead will be at Arkham’s discretion.
5. Commission and Payment.
In order to receive payment under this Agreement, you must have: (i)agreed to the terms of this Agreement (generally completed through theAffiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that maybe owed to you.
6. Requirements for Payment; Forfeiture.
Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in Section 4 (above) remain outstanding for ninety (90) days immediately following the close of a UserTransaction, then your right to receive Commission arising from any and allUser Transactions with the associated User will be forever forfeited (each, a“Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in Section 4 (above) then you will be eligible to receive Commission on User Transactions for Users who are not associated with any Forfeited Transaction. We or the Affiliate Tool will determine the currency, cryptocurrency, or reward points scheme in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given User Transaction (unless we choose to in our discretion).
7. Taxes
You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
8. Commission Amounts
We reserve the right to alter or change the Commission amount as per the Affiliate Tool.
9. Training and Support
We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.
10. Trademarks
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”), if any, in connection with the Affiliate Program and this Agreement. During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you on the Affiliate page, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with our Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in away that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
11. Proprietary Rights
No license to any software is granted by this Agreement. The Arkham Products and Other Products (the “Products”)are protected by U.S. and international intellectual property laws. The Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Products. You agree not to copy, rent, lease, sell, distribute, reverse engineer or decompile, or create derivative works based on the Arkham Content, or the Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use Arkham Content, you must comply with our Terms of Service. “Arkham,” our logo, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement. We encourage all Users, customers, affiliates and partners to comment on the Products and provide suggestions for improving them.You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Products, without payment to you.
12. Confidentiality
As used herein, “Confidential Information” means all confidential information disclosed by a Party ("Disclosing Party") to the other Party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Arkham User, customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
13. Opt Out and Unsubscribing
You will comply promptly with all opt out, unsubscribe, "do not call" and "do not send"requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests. You will not violate the Terms of Service of any online service in carrying out your obligations under the Affiliate Program.
14. Term and termination
a. Term and termination. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated. Both you and we may terminate this Agreement immediately, for any reason or no reason, on written notice. We may terminate this Agreement with or without notice: (i) within fifteen days of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iii) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (iv) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, our users, or any other person.
b. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us, (ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the User Transaction is recognized by us within thirty (30) days after the date of such termination or expiration and provided that in no event shall you be entitled to payment of Commission under this Agreement if you are eligible to receive a revenue share payment under the Solutions Partner Program Agreement. We will not pay you fees on User Transactions recognized by us thirty (30) days after the date of such termination or expiration set out above provided, however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, anAffiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a User’s subscription agreement to be terminated.
15. Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks. You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a participant in the Affiliate Program on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads;(iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Arkham’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups; (v) you will not post false or misleading links, which are strictly prohibited; (vi) you will not attempt to mask the referring URL information; (vii) you will not use your own Affiliate Link to purchase Arkham products for yourself or any person working in concert with you; and (viii) you will not use any mechanisms to deliver leads other than through posting of an unmasked Affiliate Link on the websites disclosed in the Affiliate Tool for intended consumers to use. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups.
16. Indemnification
To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Arkham Intelligence Inc., its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Arkham Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of the terms of this Agreement including the Terms ofService, or your violation of any rights of another. Arkham will provide notice to you of any such claim, suit, or proceeding. Arkham reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Arkham’s defense of such matter. You may not settle or compromise any claim against the Company Parties without Company’s written consent.
17. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE ARKHAM PRODUCTS, ARKHAM CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BYLAW, THE ARKHAM PRODUCTS AND AFFILIATE TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE ARKHAM PRODUCTS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED USER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d. Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE, WHICH IS AT YOUR SOLE RISK. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR SOLE AND ABSOLUTE DISCRETION.
e. Cookie Duration. COOKIES AND CACHED INFORMATION USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL USER CLEARS THEIR COOKIES DURING THIS PERIOD, ARKHAM SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
18. General
a. Relationship between the Parties; no partnership. This Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, or partnership between theParties or to impose any partnership obligation or partnership liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or bean agent or representative for, or to otherwise bind, the other Party.
b. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version at www.arkhamintelligence.com/affiliate-program-agreement. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. Your continued participation in the Affiliate Program will constitute agreement with its terms at that time including any amendments we have made. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
c. Terms of Service. The Terms of Service, located at arkhamintelligence.com/terms-of-service, are expressly incorporated into this Agreement by reference including, but not limited to, terms regarding governing law, choice of law and dispute resolution. In the event of any conflict between the terms of the Terms of Service and the other terms of thisAgreement, the terms of the Agreement shall prevail.