Terms and Conditions

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. AFFILIATES: THESE AFFILIATE TERMS AND CONDITIONS CONTAIN AN ARBITRATION PROVISION AND WAIVERS OF ANY RIGHT TO A JURY TRIAL OR TO BRING A CLAIM ON A CLASS BASIS. PLEASE REVIEW SECTION 8 “ARBITRATION AGREEMENT & WAIVER OF CERTAIN RIGHTS” FOR DETAILS. 

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These Spotter Studio Partner Terms and Condition (this “Agreement”) govern your participation in Spotter’s affiliate program activities (the “Affiliate Program”) in connection with Spotter Studio (“Studio”).      Spotter Memberships, LLC (“Spotter,” “we” or “us”) provides the Affiliate Program and uses a third party platform to administer the Affiliate Program (the “Affiliate Platform”), and “you” or “Affiliate” refers to you as a user of the Services.  Spotter and Affiliate are also referred to herein each as a “Party”, or collectively as the “Parties”.

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BY JOINING THE AFFILIATE PROGRAM, YOU AGREE WITH AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, AND SPOTTER’S OTHER POLICIES, INCLUDING BUT NOT LIMITED TO OUR TERMS OF SERVICE AND PRIVACY POLICY (THE “SPOTTER POLICIES”), ALL OF WHICH IS HEREBY INCORPORATED INTO THIS AGREEMENT BY REFERENCE. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU MAY NOT BECOME AN AFFILIATE PARTNER OF SPOTTER.

1.  Affiliate Responsibilities

1.1. Affiliate Services

During the Term Affiliate shall offer Spotter product feedback and co-market with Spotter as thought leaders in Affiliate’s given area(s) of expertise to improve outcomes for Affiliate’s content creator clients and followers.  

1.2. Marketing Activities

1. Affiliate will bear all costs and expenses related to Affiliate’s marketing or promotion of Studio (collectively, “Affiliate Marketing Activities”) in any area, location, territory or jurisdiction, including, without limitation, the cost of a subscription to Studio.      
2. In no event will Affiliate engage in any Affiliate Marketing Activities that are prohibited in this Agreement. In conducting all Affiliate Marketing Activities, Affiliate will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
3. Without limiting the generality of Section 1.2.2, Affiliate will (i) not send any email regarding Spotter and/or Studio to any individual or entity that has not requested such information; (ii) always include Affiliate’s contact information and “unsubscribe” information in any email regarding Spotter; and (iii) not imply that such emails are being sent on behalf of Spotter.
4. Affiliate will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Spotter and/or Studio; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Spotter and/or Studio; (iii) make any false, misleading or disparaging representations or statements with respect to Spotter and/or Studio; (iv) solicit any of Spotter’s customers to leave Spotter; (v) copy, resemble or mirror the look and feel of Spotter’s websites (including, without limitation, Studio), Spotter’s Trademarks (as defined below) or Spotter’s services or otherwise misrepresent Affiliate’s affiliation with Spotter; or (vi) engage in any other practices that may adversely affect the credibility or reputation of Spotter, including but not limited to, sending email communications or using any website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Spotter or the Affiliate Marketing Activities; (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities; (c) violates any intellectual property or other proprietary rights of any third party; or (d) otherwise violates Spotter’s Policies, including but not limited to our Acceptable Use Policy.
5. Anything Affiliate communicates in marketing or advertising of Studio must be true and accurate. Claims that relate to Studio that are untrue or fraudulent are strictly prohibited. Affiliate may not claim that any government, person, or entity endorses or supports Spotter. Affiliate may not use the intellectual property of any other person or entity in advertising any Spotter product, service or opportunity unless the third party has granted all legally necessary rights and licenses to Affiliate to use their intellectual property for such purpose. 
6. In no event will Affiliate market or promote any product or service of Spotter other than Studio without Spotter’s prior written approval.
7. Affiliate shall abide by any Spotter guidelines for any co-marketing activities performed by Affiliate hereunder.
8. Affiliate shall abide by and only promote and offer the latest Studio pricing and/or discounting requirements provided to Affiliate by Spotter from time to time. Any additional offers (including, without limitation, any bundles) that include Studio are subject to Spotter’s prior written approval.      

1.3. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Affiliate will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

1.4. Unauthorized and Prohibited Activities; Other Affiliate Terms

1. Affiliate will not promote or advertise Spotter and/or Studio on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code.
2. Affiliate will not use its links directly in any pay-per-click advertising.
3. Affiliate will not purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Spotter Trademarks (as defined below) or any variations or misspellings thereof that may be deceptively or confusingly similar to the Spotter Trademarks.
4. Affiliate will not create or participate in any third-party networks or sub-affiliate networks without the express written permission of Spotter.
5. Affiliate will not use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links.
6. Affiliate will only use specified URLs as provided by Spotter to promote Studio and to link to the Studio website and/or landing pages.  
7. Affiliate will not mask its referral sites or use deceptive redirecting links.
8. Affiliate will not disparage the products or services of any other person or entity, including without limitation the products or services of a competitor of Spotter, any other customer or partner of Spotter, or Spotter itself.

Affiliate is solely responsible for ensuring that it:

9. does not violate any local, state, national or international law, statute, regulation, rule or treaty;
10. obtains all licensing required of it by law in order to satisfy its obligations under this Agreement, including any state insurance producer licenses, if applicable;
11. protects the confidentiality of consumer information;
12. does not act in an inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful manner;
13. does not violate or infringe upon the intellectual property, industrial and other proprietary rights of any third party; and
14. does not damage Spotter’s (including its subsidiaries, officers, directors, and/or employees) reputation or goodwill.

1.5. FTC Guidelines

1. The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Affiliate Program with Spotter, Affiliate receives compensation for referrals made to Spotter. This may establish a “material connection” according to FTC rules, which creates an obligation for Affiliate to provide disclosure to consumers.
2. Full compliance with these guidelines requires, among other things, that (a) Affiliate clearly and conspicuously disclose that Affiliate is being compensated for referring customers to Spotter in all communications that include your Affiliate Link (as defined below), including on your website, social media, or emails; and (b) Affiliate is not engaged in misleading or deceptive advertising. For further information Affiliate should refer to the statement released by the FTC regarding these guidelines.

2. Affiliate Fee

2.1. Payment of Fees

1. Subject to Affiliate’s compliance with this Agreement, you will be entitled to a referral fee for each paid subscription to access Studio that generates a payment to Spotter monthly or annually (“Paid Subscription”) and which can be directly attributable to a lead (“Affiliate Lead”) who last clicked your Spotter-provided Affiliate link (“Affiliate Link”) within 90 days before entering into a free trial of Studio or directly purchasing a Paid Subscription without a free trial (“Attribution Window”). For the avoidance of doubt, attribution of an Affiliate Lead is performed on a “last click” basis; Spotter assigns full credit for a sale or conversion to the last affiliate that referred the subscriber to Studio. The referral fee amount is 30% of any revenue actually received and retained by Spotter from each Paid Subscription that is directly attributable to the Affiliate Link during the Attribution Window (the “Affiliate Fee” and collectively, “Affiliate Fees”). Provided that you remain eligible to receive Affiliate Fees pursuant to the terms of this Agreement, (i) you will receive the Affiliate Fee for the life of each respective Paid Subscription that is directly attributable to your Affiliate Link during the Attribution Window (i.e., for as long as the Paid Subscription has not been canceled or terminated by the Affiliate Lead or Spotter). You will receive your Affiliate Fee for a monthly Paid Subscription on a monthly basis (one month in arrears) and you will receive your Affiliate Fee for a yearly Paid Subscription on an annual basis (one month in arrears).      
2. We will determine the currency in which we pay the Affiliate Fee, as well as the applicable conversion rate.      
3. You will only be eligible for an Affiliate Fee payment for any Paid Subscription that is derived from an Affiliate Link that we make available to you. A Paid Subscription will be considered eligible for an Affiliate Fee if, in our reasonable determination: (i) it is a new subscriber to Studio, and (ii) is not, at the time of submission or ninety (90) days prior, one of our pre-existing subscribers or free trialists. If an Affiliate Lead does not purchase a Paid Subscription within the Attribution Window, you will not be eligible for an Affiliate Fee payment, even if the Affiliate Lead decides to purchase after the Attribution Window has expired.  An Affiliate Lead is not considered valid if their first click on the Affiliate Link is after this Agreement has expired or terminated.
4. We reserve the right to alter or change the Affiliate Fee amount. Notwithstanding the foregoing, Spotter shall not modify the Affiliate Fee amount for any Paid Subscription where the subscriber initiated their Paid Subscription (i.e., made their first subscription payment) before Spotter provided notice of a change to the Affiliate Fee. 
5. For the avoidance of doubt, no Affiliate Fee is owed for a free trial of Studio that does not convert into a Paid Subscription.
6. If an Affiliate Lead receives a refund for all or part of their Paid Subscription to which you are otherwise entitled to an Affiliate Fee hereunder, the amount of the refund will be debited by Spotter from future Affiliate Fee payments to which you may be entitled. 
7. If a subscriber of a Paid Subscription for which you are entitled to an Affiliate Fee upgrades their Paid Subscription to a higher price plan or purchases additional products and/or services beyond the Paid Subscription, you will be entitled only to receive an Affiliate Fee for the monthly or annual amount of the initial Paid Subscription of that subscriber. 
8. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; (ii) completed all steps necessary to create your account on the Affiliate Platform in accordance with our directions; (iii) have a valid and up-to-date payment method on the Affiliate Platform with such account; and (iv) completed any and all required tax documentation in order for the Affiliate Platform to process any payments that may be owed to you.

2.2. Affiliate Representations; Taxes

1. Affiliate hereby represents and warrants to Company that Affiliate is engaged in an independent business enterprise, and that Affiliate has complied with all business requirements necessary to operate Affiliate's business, if any, such as licensing, tax and other business operation requirements.
2. Affiliate is solely responsible for any and all tax liabilities, including without limitation income tax liabilities that arise from or in any way relate to any Affiliate Fee you receive from Spotter. If you are not a resident of the United States, Spotter may withhold tax (including without limitation VAT) where required to by applicable law. Where Spotter is required to withhold tax, Spotter will document such withholding.

2.3. Inventory Loading/Rebates

Affiliate is not permitted to open a Studio account under any name merely for the purpose of obtaining an Affiliate Fee or any other compensation, including without limitation incentives or prizes that may be offered from time to time. Affiliate is not permitted to refer itself or any affiliated business. Affiliate is not permitted to offer cash rebates or other monetary incentives to actual or potential Studio subscribers without Spotter’s prior written approval. Violation of this paragraph shall constitute a material breach of this Agreement, and Affiliate agrees to repay to Spotter all Affiliate Fees earned as a result of any such violation.     

‍3. Term; Termination

3.1. Term; Termination

1. The term of this Agreement (the “Term”) shall commence upon Affiliate’s acceptance of these Terms and continue until terminated in accordance with these Terms.       
2. We reserve the right to not provide Studio to any person or entity.
3. Fraudulent or other unacceptable behavior by Affiliate, including breach of this Agreement or any Spotter Policies, as determined by Spotter in its sole discretion, may result in one or more of the following actions being taken by Spotter: (a) termination of your affiliation with Spotter in its entirety and termination of all services provided to you, including, without limitation, Affiliate Marketing Activities; (b) suspension of some or all of your privileges under the Affiliate Program; and/or (c) termination of your Affiliate account entirely without notice to, or recourse for, you, in which case you shall forfeit all Affiliate Fees owed to you, either as of the date of termination or thereafter accruing.
4. Either Party may terminate this Agreement for convenience by providing written notice to the other Party. 

3.2. Results of Termination; Survival

1. Upon termination of this Agreement: (a) Affiliate will immediately cease displaying any Spotter Materials (as defined below) or any Spotter Trademarks (as defined below) on any website, email or other media and/or means of communication; and (b) all rights granted to Affiliate under this Agreement will immediately cease.      
2. This Section 3.2 and the following Sections will survive any termination or expiration of this Agreement: Section 4 (Intellectual Property Rights), Section 5 (Confidentiality), Section 6 (Disclaimer of Warranty), Section 7 (Limitation of Liability and Indemnification), and Section 8 (General Provisions). In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.‍
3. If this Agreement is terminated by Spotter for any reason other than breach of this Agreement by Affiliate, then Affiliate shall continue to receive the Affiliate Fee (set forth in Section 2 above) for the duration of each respective Paid Subscription that is directly attributable to Affiliate (i.e., until such Paid Subscription is cancelled by the subscriber or otherwise terminated). 
4. If this Agreement is terminated by Affiliate, then Affiliate shall continue to receive Affiliate Fees until the end of the calendar month in which Affiliate terminates this Agreement; thereafter Affiliate shall no longer be entitled to or paid an Affiliate Fee. 
5. If this Agreement is terminated by Spotter for breach of this Agreement by Affiliate, then Affiliate’s right to receive the Affiliate Fees shall terminate immediately upon Spotter’s termination of this Agreement.

4. Intellectual Property Rights

4.1. Spotter Materials

1. All Spotter Materials will be solely created and provided by Spotter unless otherwise agreed to by Spotter in writing in advance. Spotter will provide Affiliate with copies of, or access to, Spotter Materials. By using the Spotter Materials, you indicate your acceptance of our usage guidelines set forth in this Agreement and you understand that a violation of these guidelines or this Agreement will result in the termination of your license or permission to use the Spotter Materials. The Spotter Materials are provided “as is” and without warranty of any kind.
2. Affiliate may display Spotter Materials on its websites and/or social media channels solely for the purpose of marketing and promoting Studio during the Term of this Agreement, or until such time as Spotter may, upon reasonable prior notice, instruct Affiliate to cease displaying the Spotter Materials. Affiliate may not alter, amend, adapt or translate the Spotter Materials without Spotter’s prior written consent. Nothing contained in any Spotter Materials will in any way be deemed a representation or warranty of Spotter. The Spotter Materials will at all times be the sole and exclusive property of Spotter and no rights of ownership will at any time vest with Affiliate even in such instances where Affiliate has been authorized by Spotter to make changes or modifications to the Spotter Materials.      
3. “Spotter Materials” means any marketing or promotional materials relating to Studio, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Spotter Trademarks.      

4.2. Spotter Trademarks

1. During the Term of this Agreement, Spotter hereby grants to Affiliate a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Spotter Trademarks on Affiliate’s websites, newsletters, emails and/or social media channels for the sole purpose of marketing and promoting Studio. Affiliate acknowledges and agrees that: (a) it will use Spotter’s Trademarks only as permitted under this Agreement; (b) it will use the Spotter Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Spotter in writing from time to time; (c) the Spotter Trademarks are and will remain the sole property of Spotter; (d) nothing in this Agreement will confer in Affiliate any right of ownership in the Spotter Trademarks and all use thereof by Affiliate will inure to the benefit of Spotter; (e) Affiliate will not, now or in the future, apply for or contest the validity of any Spotter Trademarks; and (f) Affiliate will not, now or in the future, apply for or use any term or mark confusingly similar to any Spotter Trademarks. 
2. “Spotter Trademarks” means the trademarks, logos, service marks and trade names of Spotter, Inc. and Spotter Memberships, LLC, whether registered or unregistered, including but not limited to the word marks SPOTTER and SPOTTER STUDIO. 

4.3. Trademark Usage Guidelines

Affiliate shall only use and visually present the Spotter Trademarks as follows. Affiliate agrees that your use of the Spotter Trademarks in violation of these guidelines will result in automatic termination of your participation in the Affiliate Program, this Agreement, and the license and/or permission to use the Spotter Trademarks.

1. Your use must not mislead consumers as to our sponsorship of, affiliation with or endorsement of your company or your products or services.
2. The Spotter Trademarks are our exclusive property. All goodwill that results from your use of the Spotter Trademarks will be solely to our benefit. You will not take any action that is at odds with our rights or ownership of the Spotter Trademarks.
3. The Spotter Trademarks must be used in a respectful manner. The Spotter Trademarks may not be used in a way that harms us, our products or services, or in a manner which, in our opinion, lessens or otherwise damages our reputation or the goodwill in our brand assets. You may not associate the Spotter Trademarks or any other of our brand assets with any illicit or illegal activities or use them in a way that is deceptive or harmful.
4. Any time you use the Spotter Trademarks you must do so in a way that is not likely to confuse the audience or cause them to think that you are speaking for Spotter. 

4.4. Restrictions on Affiliate’s Use of the Spotter Trademarks

Notwithstanding Section 4.1, Affiliate will not:

1. except as expressly authorized herein, use the Spotter Trademarks or variations or misspellings thereof in Affiliate’s business name, logo, branding or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services (including without limitation, in the name or design of any application or theme), unless granted express written permission by Spotter in advance of each use; or
2. purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks, email addresses or domain names that use the Spotter Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Spotter Trademarks.

4.5. Proprietary Rights of Spotter

As between Affiliate and Spotter, the Spotter Materials, Spotter Trademarks, all information relating to Spotter’s products and services (including, without limitation, Studio), and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Spotter or otherwise related to Spotter’s services, the Affiliate Program, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Spotter Property”) will be and remain the sole and exclusive property of Spotter. To the extent, if any, that ownership of any Spotter Property does not automatically vest in Spotter by virtue of this Agreement, or otherwise, and vests in Affiliate, Affiliate hereby irrevocably transfers and assigns to Spotter, upon the creation thereof, all rights, title and interest Affiliate may have in and to such Spotter Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

5. Confidentiality

5.1. Definition

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including, without limitation, specific business information, technical processes and formulas, unreleased products and features, future promotions and/or updates to pricing, performance metrics (including, without limitation, the number of subscribers attributed to Affiliate and revenue generated by Affiliate hereunder), and other unpublished financial information, business plans, technology plans or updates and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between Spotter and Affiliate, any information related to a Spotter customer or other partner is the Confidential Information of Spotter.

5.2. Covenants

Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 5. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

‍6. DISCLAIMER OF WARRANTY

YOUR PARTICIPATION IN THE AFFILIATE PROGRAM AND THE USE OF ANY SERVICES PROVIDED BY OR VIA SPOTTER ARE AT YOUR OWN RISK.  THE AFFILIATE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPOTTER AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“SPOTTER AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.      

IN PARTICULAR, SPOTTER AND THE SPOTTER AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY PLATORM OR THE CONTENT OF ANY THIRD PARTY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH STUDIO (“THIRD PARTY SERVICES”), INCLUDING, WITHOUT LIMITATION, THE AFFILIATE PLATFORM. SPOTTER AND THE SPOTTER AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THIRD PARTY SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THOSE RELEVANT SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THIRD PARTY SERVICES     ; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THIRD PARTY SERVICES; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THIRD PARTY SERVICES. YOUR USE OF ANY THIRD PARTY SERVICES IS AT YOUR OWN RISK.

YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY THIRD PARTY SERVICES OR IN CONNECTION WITH THE AFFILIATE PROGRAM IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE ANY THIRD PARTY SERVICES OR OTHERWISE IN CONNECTION WITH THE AFFILIATE PROGRAM  WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.

7. LIMITATION OF LIABILITY AND INDEMNIFICATION

7.1. LIMITATION OF LIABILITY

SPOTTER WILL HAVE NO LIABILITY WITH RESPECT TO THE SPOTTER AFFILIATE PROGRAM, THE SPOTTER TRADEMARKS, THE SPOTTER MATERIALS OR SPOTTER’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSSES OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING IN ANY WAY FROM THE SPOTTER TRADEMARKS, THE SPOTTER MATERIALS OR AFFILIATE’S PARTICIPATION OR INABILITY TO PARTICIPATE IN THE SPOTTER AFFILIATE PROGRAM, EVEN IF SPOTTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, SPOTTER’S LIABILITY TO AFFILIATE UNDER THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE AFFILIATE FEES PAID TO AFFILIATE BY SPOTTER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FOREGOING LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

7.2. Affiliate Indemnification‍

Affiliate agrees to indemnify, defend and hold harmless Spotter and the directors, managers, member, officers, owners, shareholders, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Affiliate’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Affiliate’s negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Spotter granted by Affiliate to any third party; (d) Affiliate’s breach of any term of this Agreement or the Spotter Policies (including any documents it incorporates by reference); (e) any third party claim that Affiliate’s products or services infringes the intellectual property or other rights of a third party; (f) Affiliate’s taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Affiliate’s products or services; and (h) Affiliate’s non-compliance or violation of any applicable laws, rules or regulations, including the FTC guidelines.

7.3. Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Affiliate with written notice of any claim that the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Affiliate will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Affiliate will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.‍

8. General provisions

8.1. ARBITRATION AGREEMENT & WAIVER OF CERTAIN RIGHTS

1. Mandatory Arbitration of Disputes. The Parties agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Affiliate Platform (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Spotter agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Spotter are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
2. Exceptions. As limited exceptions to Section 8.1.1 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement, misappropriation or other unauthorized use of our intellectual property rights and/or the breach of the confidentiality obligations hereunder.
3. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at https://www.adr.org/Rules or by calling 1-800-778-7879. A Party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other Party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration athttps://www.adr.org/Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The Parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
4. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
5. Injunctive and Declaratory Relief. Except as provided in Section 8.1.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either Party and may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration.  The Parties agree that litigation of any issues of public injunctive relief (other than those issues set forth in Section 8.1.2. above) shall be stayed pending the outcome of the merits of any individual claims in arbitration.
6. Class Action Waiver. AFFILIATE AND SPOTTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 8 shall be null and void.
7. Severability. With the exception of any of the provisions in Section 8.1.6 of this Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.

8.2. Third Party Programs

Spotter may require you to use third party platforms for the administration of the Affiliate Program, including, without limitation, for payment of the Affiliate Fees. This includes the Affiliate Platform and certain payment processing services. You may be required to enter into a separate agreement with such third party platform(s) to use their service in connection with the Affiliate Program (the “Third Party Program Agreement”). Spotter is not a party to any Third Party Program Agreement and shall have no liability, responsibility, or obligation whatsoever relating to any such agreement.

8.3.  Force Majeure

Spotter will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control including acts of God, labor disputes or other industrial disturbances, pandemics, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

8.4. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, employee, representative or related entity of the other Party. Neither Spotter nor the Affiliate will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

8.5. Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

8.6. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Affiliate’s email address provided to Spotter by Affiliate, and to support@spotterstudio.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice will be sent to the Affiliate at the email address provided to Spotter by Affiliate, or to 160 Varick St, 3rd Floor New York, NY 10013.

8.7. No Waiver

The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.

8.8. Entire Agreement

This Agreement, any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Spotter nor the Affiliate will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

8.9. Assignment

All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Spotter will be permitted to assign this Agreement without notice to or consent from Affiliate. This Agreement is personal to Affiliate and Affiliate will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without Spotter’s prior written consent, to be given or withheld in Spotter’s sole discretion.

8.10. Applicable Laws

This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 8.1 above, the exclusive jurisdiction for all disputes, claims or other controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or your participation in the Affiliate Program will be the state and federal courts located in the County of Los Angeles, and you and Spotter each waive any objection to jurisdiction and venue in such courts.

8.11. Competitive or Similar Materials

Spotter is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for or by third parties, as well as marketing and distributing materials, products or services that are competitive with Affiliate’s products or services, provided that Spotter does not use Affiliate’s Confidential Information in so doing.

8.12. Modifications to this Agreement

Spotter may modify this Agreement and the terms and conditions herein (including but not limited to any Spotter Policies) at any time by posting a revised version on the Spotter website or by otherwise notifying Affiliate in accordance with Section 8.6. By continuing to participate in the Affiliate Program after the effective date of any modifications to this Agreement, Affiliate agrees to be bound by the modified terms. It is your responsibility to check the Spotter website regularly for modifications to this Agreement.  We last modified this Agreement on the date listed on the end of this Agreement.  

8.13. Spotter’s Right to Monitor‍

Spotter has the right, but not the obligation, to monitor or investigate any Affiliate website or social media channel and your use of Spotter’s products or services at any time for compliance with this Agreement or the Spotter Policies.  Our determination of whether a violation of any of these terms has occurred will be final and binding and any action taken with respect to enforcing this Agreement or any other terms, including taking no action at all, will be at our sole discretion.

8.14. Contact Us

In order to resolve a complaint regarding this Agreement, including, without limitation, with respect to the Affiliate Program, or if you have any questions regarding the Affiliate Program please contact us at:

Spotter Memberships

160 Varick St, 3rd Floor

New York, NY 10013 

support@spotterstudio.com

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