Wayzn Affiliate Marketing Partner Agreement

 

By clicking on “I agree” (or a similar box or button) when you sign up for an Affiliate Marketing Partner Account, you agree to be bound by the applicable sections of the following Affiliate Marketing Partner Agreement (the “Agreement”). The Agreement is between you (the “Affiliate”), and Wayzn Incorporated, a California corporation (the “Company”). You can review the current version of the Agreement at any time at LINK HERE. Company reserves the right to update and change the Agreement by posting updates and changes. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

 

You must read, agree with and accept all of the terms and conditions contained in this Agreement, including Wayzn’s Privacy Policy. For the avoidance of doubt, Wayzn’s Privacy Policy forms part of this Agreement and is incorporated by reference.

 

 

1. Definitions

 

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

 

Company” means Wayzn, Inc.

 

“Creative” means any and all trademarks, servicemarks, copyrighted materials, or any other assets owned by Wayzn and any marketing materials provided by Wayzn to affiliate for promotional purposes. 

 

“Customer” means any individual that visits or transacts via the Wayzn website.

 

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

 

“Affiliate” or “You” means an individual or entity that has agreed to the terms of this Agreement and is approved by Wayzn to participate in the Affiliate Marketing Partner Program.

 

“Affiliate Account” means an Affiliate Marketing Partner Program account.

 

“Affiliate Dashboard” means the internal administrative page available at: https://wayzn.com/affiliate-area/ that allows Affiliates to manage their Affiliate Account.

 

“Websites” means any websites that are owned, operated or managed by an Affiliate and that relate to Affiliate’s activities pursuant to this Agreement.

 

“Qualifying Product” means any product eligible to generate affiliate commission, as determined by Wayzn.

 

 

 

2. Affiliate Responsibilities

 

Affiliate will use their best efforts to promote and market Wayzn responsibly and within the guidelines set forth. 

 

2.1 FTC Guidelines 

 

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 Wayzn, Affiliate receives compensation for the Referred Customer  referrals made to Wayzn. This may establish a “material connection” according to FTC rules, which creates an obligation for Affiliate to provide disclosure to consumers.

 

  1. Full compliance with these guidelines requires, among other things, that (a) Affiliate clearly and conspicuously disclose that Affiliate is being compensated for referring Referred Customers to Wayzn, and (b) Affiliate not engage in misleading or deceptive advertising. For further information Affiliate should refer to the statement released by the FTC regarding these guidelines.

 

2.2 Unauthorized and Prohibited Activities

 

  1. An Affiliate will not:
    1. promote or advertise Wayzn or Wayzn Related Entities 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. use its Affiliate Link directly in any pay-per-click advertising;
    3. offer Wayzn products for sale directly or list prices that differ from the prices published on Wayzn.com;
    4. purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Wayzn Trademarks or the names or trademarks of any Wayzn Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Wayzn Trademarks or the names or trademarks of any Wayzn Related Entity;
    5. create or participate in any third networks or sub-affiliate networks without the express written permission of Wayzn;
    6. 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;
    7. use direct linking to any page on any Wayzn website, without prior written permission from Wayzn; or
    8. mask its referral sites or use deceptive redirecting links.

 

2.3. Marketing Activities

 

  1. Affiliate will bear all costs and expenses related to Affiliate’s marketing or promotion of Wayzn or any Wayzn Related Entity, and, as applicable, Affiliate’s Applications, Websites, Storefronts, Channel Platform, or Affiliate’s other products or services associated with Affiliate’s participation in the Affiliate Marketing Partner Program (collectively, “Affiliate Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Wayzn in its sole discretion.
  2. In no event will Affiliate engage in any Affiliate Marketing Activities except as expressly set forth in this Agreement. Email marketing is expressly disallowed except as follows. In the event that Affiliate has a list of emails where the individuals on the list have expressly elected to receive emails from Affiliate (“Opt-in List”), Affiliate may make a written request to Wayzn to send emails regarding the offering of Wayzn and Wayzn Related Entities to the individuals on the Opt-in List (and Wayzn may, in its sole discretion, allow Affiliate to send such emails). 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 2.3.2, Affiliate will (i) not send any email regarding Wayzn or Wayzn Related Entities 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 Wayzn, Wayzn Related Entities; and (iii) not imply that such emails are being sent on behalf of Wayzn or Wayzn Related Entities. Any violation of this clause will result in immediate termination of the Agreement and revocation of Affiliate link.
  4. An affiliate will not (i) engage in any fax, broadcast, telemarketing or any other offline broadcast marketing methods with respect to Wayzn or Wayzn Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Wayzn or Wayzn Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Wayzn or Wayzn Related Entities; (iv) copy, resemble or mirror the look and feel of Wayzn’s websites, Wayzn Trademarks or Services or otherwise misrepresent Affiliate’s affiliation with Wayzn or Wayzn Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Wayzn or Wayzn Related Entities, 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 Wayzn or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third .

 

2.4. 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.

 

2.5. Affiliate Duty to Inform

 

Affiliate will promptly inform Wayzn of any information known to Affiliate that could reasonably lead to a claim, demand or liability of or against Wayzn or the Wayzn Related Entities by any third party .

 

2.6. Other Affiliate Terms

 

  1. If the Affiliate is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Affiliate activities.
  2. You confirm that you are becoming an Affiliate for the purposes of carrying on a business activity and not for any personal, household or family purpose.
  3. To become an Affiliate, Affiliate must request an Affiliate Account by providing all information indicated as required on the registration form at https://wayzn.com/affiliate-area/. Wayzn may reject an application for an Affiliate Account for any reason, in its sole discretion. Affiliate acknowledges that Wayzn  will use the email address provided by Affiliate as the main method for communication. Affiliate is responsible for keeping its Affiliate Account password secure. Wayzn cannot and will not be liable for any loss or damage arising from Affiliate’s failure to maintain the security of the Affiliate Account and password.
  4. If you sign up for an Affiliate Account on behalf of your employer, your employer will be deemed to be the Affiliate for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Affiliate is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by Affiliater’s employees, agents or subcontractors.
  5. Affiliate acknowledges and agrees that Affiliate will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third , including but not limited to any affiliates or subsidiaries of Affiliate.
  6. Affiliate acknowledges and agrees that Wayzn may amend this Agreement at any time by posting the relevant amended and restated Affiliate Program Agreement on Wayzn’s website, and such amendments to the Agreement are effective as of the date of posting. Affiliate’s continued participation in the Affiliate Partner Program after the amended Affiliate Program Agreement is posted to Wayzn’s website constitutes Affiliate’s agreement to, and acceptance of, the amended Agreement. If Affiliate does not agree to any changes to the Agreement, Affiliate must terminate the Agreement by discontinuing its participation in the Affiliate Partner Program.
  7. Affiliate acknowledges and agrees that Affiliate’s participation in the Wayzn Affiliate Program, including information transmitted to or stored by Wayzn, is governed by the Wayzn Privacy Policy found at https://wayzn.com/privacy/.

 

3. Fees and Payments

 

3.1. Payment

 

  1. Wayzn shall pay the Affiliate a commission on any Paid Order for a Qualifying Product made by the Affiliate Customers that the Affiliate refers to the Company through the custom Affiliate Link during the term of this agreement. “Paid Order” means an order for which the Company has received and processed final full customer payment, less the cost of returns and chargebacks the Company incurs on any of the Affiliate’s referred customer orders.   If the Affiliate Customer places a deposit or other form of partial payment toward a purchase, the Affiliate commission is to be paid upon completed customer payment of the full purchase price + shipping and not before.
  2. Affiliates are responsible for all applicable Taxes that arise from or as a result of any activities under this Agreement. 
  3. Calculation of Commission. The Company shall pay the Affiliate 15% of net revenue generated by Fully Paid Orders for the purchase of a Company product by Affiliate Customers, less transaction fees associated with the commission payment, which are the financial responsibility of the Affiliate. Net revenue is calculated by subtracting processing charges and fees, plus any taxes or shipping and handling amounts, from the amount charged.
  4. Timing of Commissions. Commissions will be computed monthly as of the last day of each calendar month and shall be paid within 30 days following the end of the month. Any returns, refunds, chargebacks, and fraudulent payments of Paid Orders will be deducted or withheld from the commission payment. Initial deposits (refundable) made by customer for product ‘Reservations’ of Wayzn are excluded in the monthly calculation, but included at the time customer makes full payment.
  5. Wayzn, the Company shall deliver a statement detailing its computations of the commission. Any discrepancies between the Company’s records and a commission paid to the Affiliate shall be corrected by the Company within 30 days of receiving written notification of that discrepancy from the Affiliate. 
  6. Wayzn reserves the right to modify the payment terms at any time upon reasonable advance notice to Affiliate. Such notice will be provided by email or in the Affiliate Dashboard. In the event of any disputes over Fees, Wayzn’s determination will be final and binding. 

 

 

 

4. Termination

 

4.1. Termination

 

  1. Unless otherwise specified in the Agreement, any party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another .
  2. Fraudulent or other unacceptable behaviour by Affiliate, including the improper use of Company’s name, logo, or graphics (other than the proper use of the Company Marks provided under this agreement) or any form of unsolicited communication such as spam, as determined by Wayzn in its sole discretion, may result in one or more of the following actions being taken by Wayzn: (a) suspension of some or all Affiliate privileges under the Affiliate Program; and (b) termination of the Affiliate Account entirely without notice to, or recourse for, Affiliate.
  3. Wayzn reserves the right to cancel or modify the Affiliate Program Agreement in its entirety, at any time. 

 

4.2 Effects of Termination

 

Upon termination of this Agreement: (a) each Party will return to the other Party, or destroy all property of the other Party in its possession or control (including all Wayzn Creative and all Confidential Information); (b) Affiliate will immediately stop displaying any Wayzn Creative or any Wayzn Trademarks on any Website or otherwise; (c) all rights granted to Affiliate under this Agreement will immediately cease, including but not limited to the right of Affiliate to access the Affiliate Account and Affiliate Dashboard and (d) The Company shall promptly pay the Affiliate any outstanding commissions owed to the Affiliate for services rendered before the effective date of the termination.

 

 

 

5. Intellectual Property Rights

 

5.1. Wayzn Creative

 

  1. All Wayzn Creative will be solely created and provided by Wayzn unless otherwise agreed to by Wayzn in writing in advance. Wayzn will provide Affiliate with copies of or access to Wayzn Creative. The Wayzn Creative is accessible from the Affiliate Dashboard. By using the Wayzn Creative, you indicate your acceptance of our Wayzn Trademark Usage Guidelines 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 Wayzn Creative. The Wayzn Creative is provided “as is” and without warranty of any kind.
  2. Affiliate may display Wayzn Creative on the Websites solely for the purpose of marketing and promoting Company permitted by Wayzn during the term of this Agreement, or until such time as Wayzn may, upon reasonable prior notice, instruct Affiliate to cease displaying the Wayzn Creative. Affiliate may not alter, amend, adapt or translate the Wayzn Creative without Wayzn’s prior written consent. Nothing contained in any Wayzn Creative will in any way be deemed a representation or warranty of Wayzn. The Wayzn Creative will at all times be the sole and exclusive property of Wayzn and no rights of ownership will at any time vest with Affiliate even in such instances where Affiliate has been authorized by Wayzn to make changes or modifications to the Wayzn Creative.

 

5.2. Wayzn Trademarks

 

During the term of this Agreement, Wayzn hereby grants to Affiliate a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Wayzn Trademarks solely as necessary to perform Affiliate’s obligations under this Agreement. Affiliate acknowledges and agrees that: (a) it will use Wayz’s Trademarks only as permitted under this Agreement; (b) it will use the Wayzn Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Wayzn in writing from time to time; (c) the Wayzn Trademarks are and will remain the sole property of Wayzn; (d) nothing in this Agreement will confer in Affiliate any right of ownership in the Wayzn Trademarks and all use thereof by Affiliate will inure to the benefit of Wayzn; (e) Affiliate will not, now or in the future, apply for or contest the validity of any Wayzn Trademarks; and (f) Affiliate will not, now or in the future, apply for or use any term or mark confusingly similar to any Wayzn Trademarks.

 

5.3. Restrictions on Affiliate’s Use of the Wayzn Trademarks

 

Notwithstanding Section 5.2, Affiliates will not:

 

  1. use the Wayzn Trademarks or variations or misspellings thereof in Affiliate’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services, unless granted express written permission by Wayzn 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 Wayzn Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Wayzn Trademarks. 

 

5.4. Proprietary Rights of Wayzn

 

As between Affiliate and Wayzn, the Wayzn Creative, Wayzn Trademarks, prospective Affiliates, the services, 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 Wayzn or Wayzn Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Wayzn Property”) will be and remain the sole and exclusive property of Wayzn. To the extent, if any, that ownership of any Wayzn Property does not automatically vest in Wayzn by virtue of this Agreement, or otherwise, and vests in Affiliate, Affiliate hereby transfers and assigns to Wayzn, upon the creation thereof, all rights, title and interest Affiliate may have in and to such Wayzen Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

 

 

6. Confidentiality

 

    1. “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 specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans 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 Wayzn and Affiliate, Customer Data is the Confidential Information of Wayzn.
    2. Each party agrees to use the other party’s/ies’ 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 6. 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  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/ies’ 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

 

7. Disclaimer of Warranty

 

The Wayzn Affiliate Program, the Wayzn Trademarks, the Wayzn Creative, and Ads (including delivery and related reporting) are provided “as-is”. Wayzn makes no warranties under this Agreement, and Wayzn expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, Wayzn further disclaims all representations and warranties, express or implied, that the products and services, the Wayzn Trademarks, or the Wayzn Creative, satisfy all of Affiliate’s requirements and or will be uninterrupted, error-free or free from harmful components.

 

 

8. Limitation of Liability and Indemnification

 

8.1. Limitation of Liability

 

Wayzn, and the Wayzn Related Entities, will have no liability with respect to the Wayzn Affiliate Program, the Wayzn Trademarks, the Wayzn Creative or Wayzn’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 products and services, the Wayzn Trademarks, the Wayzn Creative, or Affiliate’s participation or inability to participate in the Wayzn Affiliate Marketing Partner Program, even if Wayzn has been advised of the possibility of such damages. In any event, Wayzn’s, and the Wayzn Related Entities’, liability to Affiliate under this Agreement for any reason will be limited to the Fees paid to Affiliate by Wayzn 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.

 

8.2. Indemnification

 

Affiliate agrees to indemnify, defend and hold harmless Wayzn and any Wayzn Related Entities and the directors, officers, 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 gross negligence or wilful misconduct; (c) any third claim that Affiliate’s products or services infringes the intellectual property or other rights of a third ; (d) the performance, non-performance or improper performance of the Affiliate’s products or services.

 

 

 

8.3. Notice of Indemnification

 

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Affiliate with written notice of any claim which 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.

 

8.4. Non-exclusive remedies

 

In the event of any breach or threatened breach by Affiliate of any provision of Sections 2, 5 or 6 above, in addition to all other rights and remedies available to Wayzn under this Agreement and under applicable law, Wayzn will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Affiliate’s access to the Affiliate Program, (c) receive a prompt refund of all amounts paid to Affiliate under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by Wayzn in connection with such violation, in accordance with the provisions of this Section 8.

 

 

9. General provisions

 

9.1. Force Majeure

 

If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that party, the party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.

 

9.2. Independent Contractors

 

The Parties to this Agreement are independent contractors. Neither Wayzn or any Wayzn Related Entity is an agent, representative or related entity of the Affiliate. Neither Wayzn 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, except where the Affiliate expressly authorizes Wayzn to act on its behalf in this Agreement. 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.

 

 

 

9.3. 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.

 

 

9.4. 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 listed in the Affiliate Account, and to affiliates@wayzn.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 address provided in the Affiliate Account, and to Wayzn at 1669 Hollenbeck Ave STE 2-273, Sunnyvale, CA 94087, Attention: Legal Department.

 

 

 

9.5. 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.

 

 

 

9.6. Entire Agreement

 

This Agreement, including 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 Wayzn 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.

 

 

 

9.7. 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. Wayzn will be permitted to assign this agreement without notice to or consent from Affiliate. 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 without Wayzn’s prior written consent, to be given or withheld in Wayzn’s sole discretion.

 

 

 

9.8. Applicable Laws

 

This Agreement will be governed by and interpreted in accordance with the laws of the State of California and the laws applicable therein, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.

 

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of California with respect to any dispute or claim arising out of or in connection with this Agreement.

 

 

 

9.9. Patent Non-Assertion

 

Affiliate and its affiliates covenant not to assert patent infringement claims against Wayzn, Wayzn Related Entities, or Wayzn products and services. 

 

 

 

9.10. Competitive or Similar Materials

 

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

 

 

 

9.11. Feedback

 

If Affiliate provides any feedback (including identifying potential errors and improvements) to Wayzn concerning the Affiliate Program, the Wayzn Creative or any aspects of the Service (“Feedback”), Affiliate hereby assigns to Wayzn all right, title, and interest in and to the Feedback, and Wayzn is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Affiliate Program, the Wayzn Creative or the service and to create other products and services. Wayzn will treat any Feedback as non-confidential and non-proprietary. Affiliate will not submit any Feedback that it considers confidential or proprietary.

 

 

 

9.12. Beta Services

 

From time to time, Wayzn may, in its sole discretion, invite Affiliate to use, on a trial basis, potential new products, services or features that are in development and not yet available to all Affiliates (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Wayzn will provide to Affiliate prior to Affiliate’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of Wayzn and subject to the confidentiality provisions of this Agreement. Wayzn makes no representations or warranties that the Beta Services will function. Wayzn may discontinue the Beta Services at any time in its sole discretion. Wayzn will have no liability for any harm or damage arising out of or in connection with a Beta Service.

 

 

 

9.13. Service Providers

 

Affiliate may work with service providers as necessary to facilitate Affiliate’s performance under this Agreement. Affiliate acknowledges and agrees that Affiliate is responsible for all of its service providers’ acts or omissions in relation to Affiliate’s performance of the Agreement, and any act or omission by Affiliate’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Affiliate.

 

 

 

9.14. Industry Standards

 

Affiliate’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Affiliate System”) must be properly configured to Internet industry standards so as to securely operate Affiliate’s Website, as applicable. If Affiliate does not completely control some aspect of the Affiliate System, Affiliate will use all influence that Affiliate has over the Affiliate System to do so. Affiliate must diligently correct any security deficiency and disconnect immediately any known or suspected intrusions or intruder.

 

 

 

9.15. Severability

 

If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.

 

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