Terms: Partners

Whale - Terms & Conditions/Strategic Partners

Last Modified: November 9th, 2022

HELLO! Welcome to our Whale Partner Community Program. We love to have you on board.

1. MISSION

Together with you, we want to help your local business community to excel and unlock their full potential.

2. CORE VALUES

These are our core partner values, which we look for in each of our members:

Grow … Together: we are humbly ambitious, and want to take that ride to the stars together with you.
Be Honest: we are all entrepreneurs, we make mistakes and learn from them. Share with us, and let’s become stronger together.
Client First: let us know how we can deliver a frictionless experience. A happy customer … is a happy you and a happy us.

3. THE PROGRAM

Our aim is to help local businesses grow, and the more organizations we can reach the bigger the impact we can realize together.

That is why our program and incentives are build on this vision:

Revenue Share: The more companies you help and convince to sign up to the Whale platform, the higher the revenue share you will earn. We have created 3 badges so that you can easily track your progress.
Badges: Every affiliate partner starts as a MEMBER with sales up to $5000.

An overview of the badges, corresponding total sales generated (excluding VAT) and the share of revenue you will be receiving.

Badge	Total Sales Generated	% Revenue share (commission)
Member	Max. USD5,000	10%
Changemaker	USD5,000 - 45,000	20%
Disruptor	> USD45,000	25%

You will be receiving your first badge (“member”) once your registration to the Community Program has been approved.

You can use the badge on your website, social media or any marketing communication.Once you enter a new sales tier, you will receive your new badge to replace the previous one.

“Doing a common thing uncommonly well brings success.”

HJ Heinz

4. STRATEGIC PARTNER AGREEMENT: Terms & Conditions

… and now the boring stuff, although it’s necessary to maintain a healthy and successful partnership. So, please read these partner program terms (“This Agreement”) carefully.

INTRODUCTION

By applying to or participating in the wordpress-716358-2736726.cloudwaysapps.com Partner Community Program (the “Program”) and/or by clicking a button and/or checking a box marked “confirm,” “I agree,” or something similar, you (as defined below) signify that you have read, understood, and agree to be bound by this agreement, including all terms incorporated herein by reference.

This Agreement applies to each individual or entity (“Affiliate”, “Client Referral”, “Partner”, “you” or “your”) participating in the Whale Partner Community Program, which is operated by Whale BV, a company established under Belgian law, having its registered offices at Bredestraat 22, 9600 Ronse, Belgium – registration number BE 0698.913.308. (“Whale”, “us”, “we”, or “our”).

This Agreement complements, and hereby incorporates by this reference, Whale’s Terms of Service, currently available at https://usewhale.io/terms-and-conditions/, as they may be updated from time to time (“Terms of Service”). In the event of any conflict or inconsistency between the Terms of Service and this Agreement, this Agreement will control to the extent of such conflict or inconsistency.

If you are a company, organization, or other entity, then (a) you are solely responsible for all acts and omissions of your employees, contractors, agents, and other representatives (collectively, “Partner Representatives”), and any act or omission by an Partner Representative that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you; and (b) you will make each Partner Representative aware of this Agreement’s provisions, as applicable to such Partner Representative, and you will cause each Partner Representative to comply with such provisions.

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms & Conditions the following terms shall have the following meanings:

“Business Day”

means any day other than Saturday or Sunday that is not a bank or public holiday;

“Cancellations Policy”

means our term and termination of the agreement policy which can be found at https://usewhale.io/terms-and-conditions/;

“Commencement Date”

means the date of your acceptance;

“Commission Rate”

means the percentage of commission paid on net sales revenue set out in Sub-clause 11.2;

“Confidential Information”

means all business, technical, financial or other information created or exchanged between the Parties in the course of fulfilling their obligations under the Agreement;

“Current Term”

means the Term that the Parties may be in at any given time;

“Direct Referral”

means a sale of a Service Package to a customer who has been led to our website through your website where that customer can be tracked directly from your site to ours without any further intermediaries;

“Intellectual Property Rights”

means any rights subsisting in a copyright work, trade mark, patent or design and shall be construed in accordance with the Copyright Designs and Patents Act 1988, Trade Marks Act 1994 and Patents Act 1977;

“Registered Email Address”

means the email address of the Company as provided in your Partners Dashboard or the email address of the Affiliate as provided in your Registration Data;

“Registration Data”

means the information provided by the Affiliate when registering for enrolment in the Program;

“Service Package”

means a particular set of services available from us through our website as defined in Clause 7; and

“Term”

means the term of the Agreement, as defined in Clause 17 of these Terms & Conditions, during which you shall participate in the Program under the terms and conditions set out in the Agreement.

2. ENROLMENT IN THE PROGRAM

2.1 By enrolling in the Program you agree that, at the time of registration, you will provide accurate and complete Registration Data and that you shall inform us of any changes in your Registration Data.

2.2 Upon your acceptance of these Terms & Conditions, subject to our approval and sub-clause 2.4 below, you will be granted access to the partner portal.

2.3 We may, at our sole discretion, review your website following your acceptance of these Terms & Conditions. You will be informed within 10 Business Days of the outcome of your application. Following your acceptance of these Terms & Conditions, you will receive further instructions and guidance to allow you to commence marketing our goods.

2.4 We may, in our sole discretion, choose to reject any application for any reason (and are under no obligation to disclose such reasons). Reasons for which an Application may be rejected include, but are not limited to, content on your website that:

2.4.1 is in any way unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable;

2.4.2 facilitates or promotes violence, terrorism, or any other criminal activity;

2.4.3 is sexually explicit; or

2.4.4 infringes or assists or encourages the infringement of any intellectual property rights belonging to any party.

3. COMPANY / PARTNER RELATIONSHIP

3.1 Nothing in these Terms & Conditions shall constitute, or be deemed to create, a partnership between the Parties except as expressly provided; nor, except as expressly provided, shall it designate, or be deemed to designate, any Party the agent of any other Party for any purpose.

3.2 Subject to any express provisions to the contrary in these Terms & Conditions, you shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on our behalf or bind us in any way.

4. WEBSITE LINKS

4.1 In your Partner Dashboard will be the requisite materials for a hyperlink to our website. These materials will include the HTML code for the link and/or a selection of graphic files to which the HTML code should be applied.

4.2 The HTML code as it appears in your Partner Dashboard must be copied exactly and not altered in any way. Failure to comply with this condition may result in you receiving no credit for sales of Service Packages that are generated through your website.

4.3 Under no circumstances may any of the graphic files provided by us be modified in any way without our prior written authorisation. You may not use graphic files of your own to link to our site.

4.4 All graphic files that we may provide for use as links may be displayed throughout your website as you deem appropriate, subject to our prior consent (which shall not be unreasonably withheld) which must be obtained in all cases. We reserve the right to request the alteration or removal of a link from your website.

4.5 You are required to assume full responsibility to maintain all links to our website from your website.

4.6 General restrictions

You represent and warrant that:

you will use your Partner Link without manipulation or modification of any kind;
you will not engage in any behaviors that are fraudulent, abusive, or harmful to Whale (including, without limitation, the Site) and/or the Program, as determined by us in our sole discretion;
no Partner Channel will in any way copy, resemble, or mirror the look and feel of Whale’s website, currently available at wordpress-716358-2736726.cloudwaysapps.com/ (including any successor and related sites, the “Site”), and you will not use any means to create the impression that any Partner Channel is the Site or any part of the Site, including by framing of the Site in any manner;
you will not engage in cookie stuffing or include pop-ups or false or misleading links on any Partner Channel, and you will not attempt to mask the referring URL information (i.e., the page from which the click is originating);
you will not use your Partner Link to purchase a Subscription (A) if you are an entity, for yourself or your parent, subsidiary, or Partner, or (B) if you are an individual, for yourself, your employer, or any other organization to which you provide services;
if you are an individual, you will not send your Partner Link or any marketing messages in connection with the Program to any third party via SMS or text message;
you will not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (also known as cloaking);
you have express permission and all necessary rights to use reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of (as applicable) any and all materials (such as text, images, graphics, illustrations, logos, trademarks, and service marks) that are owned by third parties and that you use in connection with the Program and/or the Partner Channel(s);
no Partner Channel, nor any advertising materials and/or other materials you create, author, and/or use in connection with the Program, does or will infringe on our or anyone else’s copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights (collectively, “Intellectual Property Rights”), publicity rights, privacy rights, or other rights;
you will not send unsolicited bulk-emails (spam) that contain your Partner Link or otherwise in connection with the Program;
you will not display your Partner Link on sites and/or apps that contain or reference, and no Partner Channel nor any advertising materials and/or other materials you create, author, and/or use in connection with the Program will contain or reference, nudity, pornography or other sexually explicit materials; weapons or graphic violence (including any violent video game images); alcohol, drugs, tragedy, transportation accidents, sensitive social issues, fake news, or gambling; or content that is offensive, obscene, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), that is solicitous of any unlawful or offensive behavior, or that may create a risk or threat of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to any person or animal, in each case as determined by us in our sole discretion;
you will not offer any discount, coupon, free trial, promo code, or other promotional offer in relation to the Program or any Subscription that is not expressly authorized by Whale in writing in advance;
no Partner Channel, nor any advertising materials and/or other materials you create, author, and/or use in connection with the Program, does or will contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to, or are likely to, damage, interfere with, surreptitiously intercept, or expropriate any system, data, or Personal Information (as defined below);
no Partner Channel, nor any advertising materials and/or other materials you create, author, and/or use in connection with the Program, does or will contain software, or use technology, that attempts to intercept, divert, or redirect Internet traffic to or from any other website, or that potentially enables the diversion of Partner payments from another website, including, without limitation, toolbars, browser plug-ins, extensions, and add-ons; and
unless otherwise agreed upon in writing by Whale, you will not promote any Whale products or services through a sub-affiliate network.

Pay-Per-Click (“PPC”) Restrictions.

“Restricted Terms” means the following terms: Whale, wordpress-716358-2736726.cloudwaysapps.com, any variations or alternative spellings of the foregoing, and any of the foregoing accompanied by “coupon,” “discount code,” “discount,” “promo code,” “promo,” “sale(s),” and/or “deal(s).”
You may not bid on any Restricted Terms, including any variations or alternative spellings thereof, for search or content-based campaigns on Google, Bing, MSN, Yahoo, Facebook, or any other network.
You may not use any Restricted Terms, including any variations or alternative spellings thereof, in sequence with any other keyword.
You may not use any Restricted Terms in your ad title, ad copy, or display name, or as the display URL of any Partner Channel.
You may not use any of our trademarked terms as part of the domain or sub-domain for any Partner Channel.
You may not direct link to the Site from any PPC ad, nor use redirects that yield the same result. Prospective Customers must be directed to an actual page on an Partner Channel.
We have a strict zero-tolerance policy on PPC trademark bidding. If you violate this Section 4.c, you will forfeit any and all Partner Fees attributable, directly or indirectly, to the violation; your Partner Fee balance may be set to $0 without warning; and we may terminate your participation in the Program, in our sole discretion, upon notice to you.

Social Media Guidelines.

You represent and warrant that, to the extent you advertise or promote Subscriptions on Facebook, Twitter, Instagram, YouTube, Pinterest, TikTok, and/or other social media platforms (collectively, “Social Media Platforms”):

you will NOT post your Partner Link on our or on any third party’s Social Media Platforms, nor on the Site;
you will NOT create any Social Media Platform accounts, forums, or groups (including, without limitation, Facebook Groups) that include any of our names, trademarks, service marks, or logos in the page/group/forum name and/or username; and

whenever you post your Partner Link or any content about Whale, the Program, and/or our products and services, including, without limitation, Subscriptions, on Social Media Platforms, you will include at least one of the following the following: “Sponsored,” “Ad,” “Paid Ad,” or “Advertisement,” with or without a hashtag symbol (e.g., “#sponsored”).

5. SITE MAINTENANCE AND CONTENT

5.1 Each Party shall be exclusively responsible for maintaining and updating its own website. Subject to the provisions of this Clause 5 and Clause 14 below, neither Party shall have any obligations to the other Party in relation to the maintenance or content of their website.

5.2 Subject to Sub-clause 5.3 of these Terms & Conditions, neither Party may host any content that:

5.2.1 is in any way unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable;

5.2.2 facilitates or promotes violence, terrorism, or any other criminal activity;

5.2.3 is sexually explicit; or

5.2.4 infringes or assists or encourages the infringement of any intellectual property rights belonging to any party.

5.3 Neither Party shall be under any obligation to pre-screen any content added to their website by third parties; however in the event that either Party receives from the other a written notification of any content that falls within that described in Sub-clause 5.2 of this Agreement, such content must be removed within 5 Business Days of receipt of such notice.

6. DISPLAY OF COMPANY INFORMATION

6.1 As an Partner, you are free to display pricing and other information relating to our Service Packages. It is your responsibility to keep such information up-to-date through your own efforts; we will not provide pricing information updates to you.

6.2 We reserve the right to alter pricing at any time in accordance with our own policies.

6.3 Your Responsibilities: As a Whale Partner you agree that:

6.3.1 You are responsible for providing us with full and accurate account information and for keeping that information up to date. Such information might include, but is not limited to: contact details, payment details, tax information and any other details we may require. We reserve the right to request additional data regarding all the websites where you promote Whale and the promotional practices you use. Failure to provide accurate information may result in exclusion from the Program, suspension or termination of your Partner account and forfeiture of any commissions.

6.3.2 You should not create more than one Partner account.

6.3.3 You should act in good faith to refer customers in good standing.

6.3.4 You cannot refer yourself, and you will not receive a commission on your own accounts. You should not use our Program to refer companies that you own or in which you have shares or other interests.

6.3.5 You should not take actions or make recommendations to your referrals that result in a potential revenue loss for Whale.

6.3.6 You should not engage in incentivized programs and business-opportunity sites, using marketing practices that might be unethical or likely to attract customers not in good standing.

6.3.7 You should not use on behalf of your referrals or encourage your referrals to use on their Whale accounts any copyrighted or third-party material without the proper licenses.

6.3.8 You should not copy, alter or modify any icons, buttons, banners, graphics, files or content contained in Whale’ Links, including but not limited to removing or altering any copyright or trademark notices, without prior written approval from us.

6.3.9 You should not engage in any blackhat seo/spam link building techniques in order to generate more referrals for Whale.

6.3.10 Post ads on offensive, illegal, hateful, pornographic, or otherwise distasteful websites.

6.3.11 You agree not to violate any applicable law.

6.3.12 If we detect a pattern in your Partner practices that in our reasonable opinion violates any aspect of the T&C, we reserve the right to suspend or terminate your Partner account and cancel all outstanding commission payments due.

6.4 Partner Advertising. Inappropriate ways of advertising include, but are not limited to:

6.4.1 Using any illegal or spam method of advertising, e.g. unsolicited email, unauthorized placing of the link in forums, newsgroups, message boards etc.;

6.4.2 Bidding on keywords and phrases containing the “Whale” trademark, or variations or misspellings of the trademarked term on Pay per Click or Pay per Impression campaigns on the search engines (Google, Yahoo, MSN, Ask, Bing or others) without our prior approval. You are not allowed to use the Whale Website(s) as display URL in PPC ads and to direct-link or redirect to the Whale Website(s);

6.4.3 Using non-unique copyright infringing content to promote Whale;

6.4.4 Using traffic generated by pay to read, pay to click, banner exchanges, click exchanges, PPV advertising, pop-up/under, or similar methods;

6.4.5 Providing cash backs, rewards or any other kind of incentives to obtain the sale without our prior approval;

6.4.6 Offering price savings methods, including coupon(s), voucher(s), discount codes, or added value offers without our prior approval;

6.4.7 Using our advertising and promotional materials, trademark or name in a way which negatively affects our image;

6.4.8 Using iframes or any other techniques or technology that places your Partner tracking cookie by any means other than an actual click-through;

6.4.9 Using link cloaking or masking techniques or technology with the goal to promote Whale on websites and/or networks not explicitly listed in your Partner profile and hiding that traffic source;

6.4.10 Your website(s) must NOT contain lewd, obscene, illegal or pornographic material, or any other material that is deemed to be objectionable. This includes, but is not limited to, bigotry, hatred, pornography, satanic materials, trademark and copyright materials, all content of an adult nature, etc. The designation of any materials as such is subject to our reasonable opinion;

6.4.11 Your domain name(s), company name, logo, trademark, product(s), project(s), service(s) must NOT contain keywords and phrases containing the “Whale” trademark or any other variations or misspellings confusingly similar to Whale trademark, name, logo or domain name, without our prior approval;

6.4.12 Your domain name(s), company name, logo, trademark, your product(s), project(s), service(s) must NOT contain keywords and phrases that contain or are confusingly similar to third-party trademarks, names, logos or domain names, unless you have been duly authorised by the trademark owner.

6.4.13 Whale shall have the sole right to decide if a promotional method you use is appropriate. The use of any advertising method that we consider inappropriate may result in warning, suspension or termination of your Partner account and cancellation of all outstanding commission payments due.

7. SERVICE PACKAGES

We provide services through our website in packaged form, each package setting out combinations and levels of service, available at different prices. Descriptions of such packages are available on our website at https://usewhale.io/pricing/.

8. CUSTOMER REFERRAL REQUIREMENTS

8.1 Terms & conditions relating to the referral of customers to us via links on your website can be found on our website at https://usewhale.io/Partners-terms-and-conditions.

8.2 We reserve the right to alter such terms & conditions at any time and will provide 10 Business Days’ written notice to you of any such alteration.

9. ORDERS

9.1 We undertake to use our best and reasonable endeavors to process and fulfill all orders for Service Packages placed by referred customers generated by Strategic Partners.

9.2 We reserve the right to reject any orders that do not comply with the customer referral requirements detailed in Clause 8 of these Terms & Conditions.

9.3 It shall be our full responsibility to ensure that all orders are completed and that the provision of services is undertaken in accordance with our Service Level Agreements. We shall be responsible for order entry, payment processing, cancellations and all subsequent customer service. You shall have no further involvement with the customer or the completion of the transaction and all customers will be made aware of the same.

10. PARTNER SALES REPORTING

10.1 We will track the following elements of all sales:

10.1.1 origin;

10.1.2 Service Package selected; and

10.1.3 revenue generated.

10.2 Full reports of all sales generated through the links on your website will be available in your Partner Dashboard. We reserve the right to alter the form and content of such reports without notice.

11. COMMISSION AND REFERRAL FEES

11.1 You will be paid commission at the rates set out in Sub-clause 11.2 on the net profits of sales generated through your website or social media.

11.2 Commission shall be calculated based on a Tiered Commission Structure:

11.2.1 All sales that result from Direct Referrals will attract a commission, based on the total amount of sales (excluding VAT) generated.

Badge	Total Sales Generated	% Revenue share (commission)
Member	Max. USD5,000	10%
Changemaker	USD5,000 - 45,000	20%
Disruptor	> USD45,000	25%

11.2.2 In the event that a customer resulting from a Direct Referral renews a Service Package upon the initial sale for which you earned Commission, such a renewal will also attract a commission as per the above mentioned tiers.. Where a customer does not renew a Service Package at the end of that package’s original term but reactivates that Service Package at a later time, no commission will apply.

11.3 In the event that a customer cannot be tracked, no commission will be paid.

11.4 Commission shall be calculated only once we have received payment in full from the customer. Only once payment has been received in full will sales be logged in your Partner Dashboard.

11.5 Commission payouts will be will be thirty (30) days after the commencement of such Customer’s Subscription (except that Partner Fees may not be initiated on holidays and weekends, in which case they will be initiated on or about the next business day), and will be made available in your Payment Method within several days after payment is initiated.

Partner Fees are up for processing according to a cadence that matches the applicable Customer’s payment terms. For example, if Customer A pays Whale for a monthly Subscription, you will be entitled to Partner Fees for each of the first twelve (12) consecutive months during which Customer A pays for such Subscription; if Customer B pays Whale for an annual Subscription, you will be entitled to one payment of Partner Fees (in each case, provided that all other conditions set forth in this Agreement regarding Partner Fees are met).

11.7 Commissions will be made available in your Payment Method within several days after payment is initiated. The foregoing timelines are estimates only, and Whale does not guarantee that Partner Fees will be initiated or available to you in accordance with such estimated timelines. You hereby release Whale from any and all claims, actions, demands, liabilities, losses, damages (whether direct, indirect, incidental, consequential, or otherwise), judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) of every kind and nature, known and unknown (collectively, “Losses”), arising out of or related to a payment (or pending payment) of Partner Fees that does not meet the foregoing estimated timelines.

11.8 If a refund is issued to a Customer (including, without limitation, due to such Customer’s cancellation of its Subscription), or a payment from a Customer is charged back or reversed, after the Partner Fee associated with such payment by Customer has already been made available in your Payment Method, then Whale will, at its option: (i) debit your Payment Method for an amount equal to such refund, chargeback, or reversal amount, (ii) reduce or set off against any future Partner Fees due to you hereunder by an amount equal to such refund, chargeback, or reversal amount, or (iii) invoice you for an amount equal to such refund, chargeback, or reversal.

11.9 Any and all commission paid to you shall be based on sales revenue less any tax due; however you may still be liable to pay tax on your commission. By accepting these Terms & Conditions you hereby acknowledge that you are solely responsible for the payment of tax on any income you may generate through your involvement in the Program.

11.10 We reserve the right to modify our Commission Rates at any time. You will be given 10 Business Days’ prior written notice (the “Notice Period”) of any such change. You will be given the option to opt out of the Program within the Notice Period and will, on the exercise of that option, be paid any Commission due to you, notwithstanding the total commission earnings requirement set out in Sub-clause 11.6 above.

12. TRADE MARKS

12.1 Upon your entry into the Program, we shall grant to you a non-exclusive, non-transferrable, royalty free licence to use our logos and trade marks (our “Trade Marks”).

12.2 You may use our Trade Marks only to the extent required to establish links and perform your obligations as an Partner under these Terms & Conditions.

12.3 In the event that you wish to use our Trade Marks for any purposes outside of these Terms & Conditions you must not do so without prior written consent, such consent not to be unreasonably withheld.

12.4 By accepting these Terms & Conditions you hereby agree that:

12.4.1 our Trade Marks shall remain the property of Whale BV, unless and until we assign those marks to a third party;

12.4.2 nothing in these Terms & Conditions shall be deemed to confer any ownership rights in our Trade Marks on you; and

12.4.3 you shall not contest the validity of our trade marks.

13. INTELLECTUAL PROPERTY

13.1 Unless otherwise expressly indicated we are the sole and exclusive owners of all Intellectual Property Rights (“IPRs”) in our website including, but not limited to: all code, text, sound, video, graphics, photographs and other images that form a part of the site. We shall also be the sole and exclusive owners of all IPRs which may subsist in any supporting documentation which shall include, but not be limited to, site plans, maps, design sketches and other preparatory material.

13.2 We shall be the sole and exclusive owners of all IPRs which may subsist in all future updates, additions and alterations to our website, such material including any supporting documentation.

14. PARTNER WARRANTIES AND INDEMNITY

You represent and warrant that, in connection with your participation in the Program, you, the Partner Channel(s), and any advertising materials and/or other materials you create, author, and/or use in connection with the Program do not and will not violate any applicable federal, state, local, international, or foreign law (including any law arising under common law), statute, regulation, rule, or guideline (including any guideline created and/or enforced by a self-regulatory organization), including, without limitation, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (together, “Privacy Laws”); the CAN-SPAM Act and the Telephone Consumer Protection Act; the U.S. Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf) and guidance on Cross-Device Tracking (available at https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-report-january-2017/ftc_cross-device_tracking_report_1-23-17.pdf); the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising, Principles of Transparency and Control to Data Used Across Devices, and Self-Regulatory Principles to the Mobile Environment (available at https://digitaladvertisingalliance.org/principles); and all applicable sanctions programs administered by, and restrictions imposed by, OFAC, in each case as may be amended or updated from time to time (collectively, “Applicable Law”). Without limiting the generality of the foregoing, if you choose to promote Subscriptions via e-mail campaigns, you represent and warrant that you will comply with the CAN-SPAM Act of 2003 (Public Law No. 108-187), including by, among other things, providing the option to unsubscribe from future emails in all email messages and making it clear that you are the sender of the email and not acting at the direction of Whale.

14.1 In accepting these Terms & Conditions you hereby warrant and acknowledge that:

14.1.1 Your website does not and will not contain any content that:

a) is in any way unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable;

b) facilitates or promotes violence, terrorism, or any other criminal activity;

c) is sexually explicit; or

d) infringes or assists or encourages the infringement of any intellectual property rights belonging to any party.

14.1.2 Your website is and shall remain functional and, subject to the provisions of Clause 19 of these Terms & Conditions, reasonable downtime for maintenance or third-party access restrictions, accessible to all users of the internet;

14.1.3 All necessary authorities, consents and approvals have been obtained in respect of your obligations under these Terms & Conditions and will remain valid and effective throughout the Term;

14.1.4 Your obligations under these Terms & Conditions shall constitute legal, valid and binding obligations on you. Such obligations shall be direct, unconditional and general obligations; and

14.1.5 You will not refer to us in any way in any unsolicited bulk email campaigns or other spamming practices that you may conduct.

14.2 By accepting these Terms & Conditions you agree that you shall indemnify us in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by us as a result of, or in connection with:

14.2.1 breach of any warranty given by you in relation to your website;

14.2.2 any claim that your website infringes the patent, copyright, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any terms stipulated by us; and

14.2.3 any act or omission by you or your employees, agents or sub-contractors in performing your obligations under these Terms & Conditions.

15. DISCLAIMERS

15.1 We make no warranty or representation that our website, the Program, or Service Packages sold through the Program will meet your requirements or those of your visitors, that they will be of satisfactory quality, that they will be fit for a particular purpose, that they will not infringe the rights of third parties, that they will be compatible with all systems, that they will be secure and that all information provided will be accurate.

15.2 We make no guarantee of any specific results from the use of our website or from enrollment in the Program.

15.3 We make no guarantee that our website shall remain functional and accessible to all users of the internet.

16. LIABILITY

6.1 We shall not be liable to you for any indirect or consequential loss that you may suffer even if such loss is reasonably foreseeable or if we have been advised of the possibility of such loss being incurred.

16.2 Our entire liability to you in respect of any breach of our contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with these Terms & Conditions or the Agreement shall be limited to €1.

17. TERM AND TERMINATION

17.1 These Terms & Conditions and The Agreement shall come into force and become binding on the Commencement Date and shall continue in force for a period of 12 months from that date (the “Initial Term”). Following the Initial Term, your enrolment in the Program shall be renewed automatically for successive periods of 12 months (each a “Renewal Term”) unless and until terminated in accordance with this Clause 17.

17.2 Either Party may terminate the Agreement by giving 10 Business Days’ prior written notice to the other:

17.2.1 at any time where the other Party has committed a material breach of these Terms & Conditions or the Agreement and such breach has remained unremedied 10 Business Days after receiving written notice of that breach; or

17.2.2 if the other Party enters into liquidation whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation with the prior written approval of the other Party), or compounds with or makes any arrangement with its creditors or makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets, or if it ceases or threatens to cease to carry on its business, or makes any material change in its business, or if it suffers any analogous process under any foreign law.

17.3 Either Party may request the termination of the Agreement at the end of the Current Term for any reason provided that written notice is given at least 10 Business Days before the end of the Current Term.

17.4 Upon the termination of the Agreement for any reason, you shall remove the links established under these Terms & Conditions.

17.5 Upon the termination of the Agreement for any reason, all licenses granted shall also terminate.

17.6 In the event that we terminate the Agreement in accordance with Sub-clause 17.2.1, any Commission owed to you at that time shall be forfeited.

18. CONFIDENTIALITY

18.1 Each Party (a “Receiving Party”) shall keep the Confidential Information belonging to the other Party (a “Supplying Party”) confidential and secret and shall not use or disclose or make the Confidential Information available, directly or indirectly, to any person other than its officers and employees who need the Confidential Information to enable the Receiving Party to perform its obligations under these Terms & Conditions and provided that such officers and employees are also obliged to keep such Confidential Information confidential and secret. The foregoing obligations shall not apply to any information acquired by the Receiving Party which:

18.1.1 at the time of its acquisition was in the public domain; or

18.1.2 at a later date comes into the public domain through no fault of the Receiving Party.

18.2 Each Party hereby agrees and undertakes:

18.2.1 that all Confidential Information shall be and shall remain at all times the sole and exclusive property of the Supplying Party;

18.2.2 that its right to use Confidential Information shall wholly cease upon the termination of the Agreement; and

18.2.3 to return to the Supplying Party on termination of the Agreement all material embodying Confidential Information (including information stored on digital media) or any part thereof and all copies thereof.

19. FORCE MAJEURE

Neither Party to these Terms & Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to, power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

20. SEVERANCE

The Parties agree that, in the event that one or more of the provisions of these Terms & Conditions is found to be unlawful, invalid, or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms & Conditions. The remainder of the Terms & Conditions shall be valid and enforceable.

21. NOTICE

Unless otherwise stated in these Terms & Conditions, the Parties agree that all notices to be served under the Agreement shall be in writing and may be sent by email to the other Party’s Registered Email Address with a hard copy of the same to be sent by first class post to the addresses detailed at the head of these Terms & Conditions or as provided by you during your registration for the Program within 10 Business Days of the email.

22. NOTICE

22.1 These Terms & Conditions shall embody and set forth the entire agreement and understanding between the Parties and shall supersede all prior oral or written agreements, understandings or arrangements relating to the Program or the relationship between the Parties. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in these Terms & Conditions, save for any representation made fraudulently.

22.2 Unless otherwise expressly provided elsewhere in these Terms & Conditions, the Agreement may be varied only by a document signed by both of the Parties.

23. GENERAL

23.1 No Waiver

The Parties shall agree that no failure by either Party to enforce the performance of any provision in these Terms & Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms & Conditions. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

23.2 Non-exclusivity

The relationship between the Parties shall be and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.

23.3 Non-assignment

You may not assign any or all of your rights or obligations under these Terms & Conditions or the Agreement without our prior written consent, such consent not to be unreasonably withheld.

24. GENERAL

24.1 These Terms & Conditions and the Agreement shall be governed by the laws of Belgium.

24.2 In case of a dispute, which cannot be amicably solved, the parties shall submit the matter to the competent courts of Oudenaarde.