This page explains the terms by which you may participate as an Affiliate of the Laughingbird Software. Please read carefully. They create an agreement between you and us.
We may revise and update this agreement from time to time in our sole discretion. All changes are effective immediately when we provide notice of them to you by posting the revised and updated agreement here. It is your responsibility to regularly check this agreement for any changes. As a courtesy, we may also provide you with a notice via your Account Dashboard or email. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction and Arbitration will not apply to any disputes for which the parties have actual notice prior to the date the change is posted on our website at www.laughingbirdsoftware.com. Your continued participation in the Affiliate Program following notice of changes means that you accept and agree to the changes.
“Laughingbird Software” and “Laughingbird” means a company or companies owned, operated, or controlled by Laughingbird Software.
“Affiliate Dashboard” means the browser-based platform that we make available to you upon your acceptance into the Affiliate Program, through which you will be provided your Affiliate Link and be able to track analytics.
“Affiliate Program” means our affiliate program as described in this agreement.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Commission” means an amount described in this agreement.
“Customer” means the authorized actual user of the Laughingbird Software who has purchased the Laughingbird Software product after being a Lead.
“Laughingbird Software” means the proprietary application provided by Laughingbird Software via its website or websites, including but not limited to www.laughingbirdsoftware.com and www.webgraphicscreator.com.
“Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Dashboard.
“We”, “us”, “our”, “Company”, and “Laughingbird Software” means Laughingbird Software, LLC.
“You” and “Affiliate” means the party, other than Laughingbird Software, entering into this agreement and participating in the Affiliate Program.
Non-Exclusivity; Relationship of Parties
This agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
Further, nothing in this agreement will create any partnership, joint venture, agency, franchise, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.
You may apply to enroll in our Affiliate Program by submitting an online application here. If we do not respond to your application within 30 calendar days of receipt, then your application is deemed rejected. If and once your application is approved, you will be assigned an Account with a user name (of your choosing or assigned by us) and a password. The Account will give you access to the Affiliate Dashboard.
Failing to activate your Account within 30 calendar days of being assigned one will result in termination of your Account and your participation in the Affiliate Program. Upon activation of your Account, you will be deemed an Affiliate, and the present agreement shall enter into full force and effect.
Leads and Customers
As an Affiliate, you will be given certain marketing or promotional content in the form of embedded links, banners, text links, GIFs, videos, and/or other material (“Promotional Material”) which contain a unique tracking link tied to your Account which you can place on your website, application, social media platforms, and/or other channels in order to promote Laughingbird Software and drive your visitors and users to our website, www.laughingbirdsoftware.com, to purchase and/or subscribe to Laughingbird Software. You hereby agree to implement good faith and reasonable best efforts to implement such promotional activity.
Persons who click on the Affiliate Link will be taken to the respective webpage of www.laughingbirdsoftware.com to purchase and/or subscribe to Laughingbird Software, and such persons shall be deemed a prospect customer, or Lead, from the moment of clicking on the Affiliate Link. In order to track a Lead to becoming a Customer, the Affiliate Link relies on cookies, so the Lead cannot have cleared their cookies prior to becoming a Customer.
A Lead may then proceed to purchase a downloadable product, download a free product, and/or subscribe to Laughingbird Software, at one of the available plans, including any available free plans. Upon doing any of the above, a Lead becomes a Customer, and any Revenue actually received by us from the Customer shall be subject to Commission provided that all eligibility requirements are met as provided below.
For the avoidance of doubt, a Lead who subscribes to a free plan or downloads a free product shall also be deemed a Customer, and in case said Customer later subscribes to a paid plan. or purchases a downloadable product, any Revenue then actually received by us from the Customer shall be subject to Commission provided that all eligibility requirements are met as provided below.
Finally, sometimes, the same customer may have clicked on the affiliate links of two different affiliates. In such cases, that customer shall be deemed the lead of the affiliate whose affiliate link that customer has clicked last, determined at our sole discretion.
In order for Revenue actually received by us from a Customer to be subject to Commission, the following eligibility requirements shall be met.
Eligibility requirements for Affiliates
Eligibility requirements for Leads and Customers
The Lead must satisfy the following eligibility requirements: (i) the Lead made the purchase of Laughingbird Software as a result of clicking on the Affiliate Link provided to you through the Affiliate Dashboard; (ii) the Lead made the purchase of Laughingbird Software on our official website, www.laughingbirdsoftware.com; (iii) the period of time lapsed from becoming a Lead by first clicking on the Affiliate Link and making the first purchase of Laughingbird Software, even through a free plan, shall not exceed 90 calendar days; (iv) the Lead is a new customer of Laughingbird Software, defined as not being a current customer of Laughingbird Software upon or within 60 calendar days of becoming a Lead and not being involved in our active sales process upon becoming a Lead; (v) the Lead first clicked on the Affiliate Link after this agreement had expired or terminated.
In addition to the foregoing, if a subscription is involved, the Customer shall be subscribed to Laughingbird Software continually for Revenue actually and unconditionally received by us from the Customer to be subject to Commission, if applicable. For the avoidance of doubt, if the Customer purchases Laughingbird Software, and then cancels the subscription, and then re-subscribes, Commission shall be paid on revenues actually received for the Laughingbird Software subscription prior to cancellation, but not on those received for the Laughingbird Software subscription after cancellation and re-subscription. The same applies regardless of whether the Lead had or has subscribed to a free or paid plan(s).
If a Lead is not valid or if a Customer terminates its purchase of Laughingbird Software, then we may choose to maintain the same in our database and we may choose to engage with such Lead or Customer. Any engagement between us and a Lead or Customer will be at our discretion.
Eligibility requirements for Revenue
Notwithstanding anything contrary herein, the Revenue shall not be subject to Commission and a Commission shall not be paid to you if (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; or (ii) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any term of this agreement, misuse of the Affiliate Dashboard or by any other means that we deem to breach the spirit of the Affiliate Program.
Revenue and Commission
Commission shall be a percentage of the Revenue actually received from all Customers, in accordance with the terms hereunder. The respective percentages shall be provided on your Affiliate Dashboard or otherwise established by our notice to you, and may be changed effective as of the first day of the next month. Commission, when due, shall be paid on eligible Revenue actually received within 15 calendar days after the end of such month during which such Revenue was received. Commission shall be paid by means of a deposit on the payment collection method provided on your Affiliate Dashboard.
You are responsible for all taxes and other third party payments applicable to the Commission. Further, all monies payable by us to you are subject to set-off by us against any monies owed by you to us.
For the purposes of this agreement, “Revenue” shall mean the net income (exclusive of sales tax and after applying any discounts, credits, deductions, withholdings, rebates, other reductions or adjustments) generated by us from Customers’ purchases and/or subscription payments for the use of Laughingbird Software, such income being unconditionally paid to and actually received by us, without the possibility of refund, in compliance with the eligibility requirements provided herein. For purposes of clarification, Revenue does not include: (a) the value of any items that may be furnished by us to a Customer without cost to the latter (for example, free trials or other free services furnished as part of any advertising or promotions program) and (b) any reimbursement that may be received by us from Customers for taxes, customs, duties, costs and expenses, additional charges, other monies unrelated to product purchase or subscription payments, and the like, if applicable.
All amounts of Revenue and Commission shall be calculated and determined in good faith by us as provided herein, at our sole discretion.
Affiliate Representations and Warranties
Without limiting any other obligation, representation, or warranty provided hereunder, you hereby represent and warrant that: (a) you have all rights and permissions to participate in the Affiliate Program and perform your obligations hereunder; (b) your participation in the Affiliate Program and performance of the terms hereunder do not violate your obligations toward any third parties; (c) you own or have sufficient rights to use and to grant to us the rights provided hereunder, including toward your intellectual property assets; (d) no third party has brought or threatened an action claiming intellectual property infringement, nor do you have any reason to believe that any third party will bring or threaten such claim in the future.
You further represent and warrant that: (e) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program; (f) you will use the Promotional Material that we have provided for purposes of implementing your promotional activity provided hereunder, in accordance with this agreement and in compliance with applicable laws; (g) you will not participate in cookie stuffing or pop-ups and shall not use false or misleading links; (h) you will not attempt to mask the referring URL information (i) you will not use your own Affiliate Link to purchase Laughingbird Software for yourself; and (j) you will not deceive potential Leads in any way and shall not utilize email spam mechanisms.
You further represent and warrant that your website and marketing activities (w) do not violate any law or regulation and are in compliance with generally accepted approaches to advertising; (x) do not contain any harmful piece of code, including but not limited to worms, viruses, Trojans and such; (y) do not advertise to people who are younger than 18 and not eligible to use our products; (z) do not contain any materials that in their nature are obscene or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); graphically violent; or solicitous of any unlawful behavior.
Violation of these representations and warranties or other terms hereunder may result in termination of your Account and your participation in the Affiliate Program.
Intellectual Property Rights
You acknowledge and agree that all rights toward our products, including Laughingbird Software, belong to us and our licensors, if any, and that our products are protected by intellectual property laws. Nothing herein shall be construed to mean the transfer of any rights to you other than as expressly provided in this agreement. No license to any software is granted hereunder. The License Restrictions provided in our End User License Agreement apply in relevant part to your use of products, on the understanding that no license is hereby granted to you as an Affiliate unless expressly provided in this agreement.
During the term of this agreement, we may provide you with Promotional Materials and may make available to you our trademark(s). You may use the Promotional Material and our trademarks in good faith, provided that you comply with the following usage requirements. You must: (i) only use the images of our trademark and the Promotional Material that we make available to you, without altering them in any way; (ii) only use our trademarks and Promotional Material in connection with the Affiliate Program and this agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark or Promotional Material in a misleading or disparaging way; (ii) use our trademark or Promotional Material in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark or Promotional Material in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material. You acknowledge and agree that we own and retain all rights toward our trademarks, and that the same cannot be used in any way by you other than as expressly authorized hereunder or by other express writing by us to you.
Additionally, you acknowledge and agree that we own all intellectual property rights developed by you as a result of your participation in the Affiliate Program related to or in connection with our products and/or intellectual property rights. This includes any suggestions, comments, or feedback you may provide us. All such intellectual property rights shall be assigned and transferred to us without payment to you.
Finally, you grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos in connection with the Affiliate Program and this agreement.
For the purpose of this agreement, “Confidential Information” means all confidential, proprietary, or sensitive information disclosed by us (“Disclosing Party”) to you (“Receiving Party”), whether orally or in writing, such that a reasonable person will acknowledge the confidential nature thereof, regardless of whether the same is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents who have a “need to know” and who are bound by confidentiality obligations toward the Receiving Party no less strict than as provided herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process. Notwithstanding the foregoing, the affiliate relationship established hereunder shall not be deemed Confidential Information.
Term and Termination
This agreement will remain in force for as long as you participate in the Affiliate Program, until terminated or expired.
Each party may terminate this agreement with or without cause by giving 15 days’ advance written notice to the other party. Provided, however, that the agreement may be terminated immediately upon notice by us in case of material breach of this agreement by you (as determined in our sole discretion) or if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
This agreement may also terminate automatically in case the Affiliate Dashboard provides, or we and you have otherwise agreed, that your participation in the Affiliate Program shall remain in effect until a set number of Customers has been achieved.
Any and all Commission payments, including those accrued but yet unpaid, shall be deemed forfeited and not subject to payment upon any termination or expiration of this agreement, and our obligation to pay Commission to you shall terminate immediately upon the date of such termination or expiration, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. You are not eligible to receive a Commission payment after expiration or termination of this Agreement.
Upon termination or expiration, you will discontinue all use of and delete the Affiliate Dashboard that we make available to you for your participation in the Affiliate Program. You will also immediately discontinue all use of our trademarks and Promotional Material as well as remove any other reference on your website or other channels to the Affiliate Program. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.
The following sections shall survive the expiration or termination of this Agreement: “Revenue and Commission”, “Intellectual Property Rights”, “Confidentiality”, the last two paragraphs of “Term and Termination”, “Disclaimer of Warranties”, “Limitation of Liability”, “Indemnification”, and “Other Terms”.
DISCLAIMERS OF WARRANTIES
You understand that we cannot and do not guarantee or warrant that Laughingbird Software, our website, our products and services, the Affiliate Dashboard and any material, content, functionality, service, or feature thereof (collectively, our “Assets”) will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE, DEVICE PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OUR ASSETS OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR ASSETS OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY LINKS, APPLICATION OR WEBSITE (EACH, A “PAGE”) LINKED TO IT.
YOUR USE OF OUR ASSETS, ITS CONTENT, FEATURES, FUNCTIONALITY, AND ANY SERVICES OR ITEMS OBTAINED THROUGH OUR ASSETS IS AT YOUR OWN RISK. OUR ASSETS, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH OUR ASSETS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF THE KRISP COMPANIES AND ITS AND THEIR RESPECTIVE OWNERS, SHAREHOLDERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, AND ASSIGNS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO OUR ASSETS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF OUR ASSETS, ITS CONTENT, FEATURES, FUNCTIONALITY, AND SERVICES, AND ITEMS OBTAINED THROUGH OUR ASSETS, OR THAT THE SAME ARE ACCURATE, RELIABLE, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT OUR ASSETS OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT OUR ASSETS OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR ASSETS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS KRISP COMPANIES, OR ANY OF ITS OR THEIR RESPECTIVE OWNERS, SHAREHOLDERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, OUR ASSETS, ANY SITES LINKED TO IT, ANY CONTENT ON OUR ASSETS OR SUCH OTHER SITES OR SUCH OTHER PAGES OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR ASSETS OR SUCH OTHER SITES OR SUCH OTHER PAGES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, PROPERTY DAMAGE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. YOUR SOLE AND EXCLUSIVE REMEDY IN CASE OF ANY GRIEVANCE, ACTION, OR COMPLAINT IN REGARDS TO OUR ASSETS OR BREACH BY US OF THESE TERMS IS TO DISCONTINUE YOUR USE OF OUR ASSETS AND TO TERMINATE YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. NOTWITHSTANDING ANYTHING CONTRARY IN THESE TERMS, OUR (AND OUR KRISP COMPANIES’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (UNDER ANY LEGAL THEORY, CAUSE, OR GROUND, WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL AT ALL TIMES BE LIMITED TO THE AGGREGATE AMOUNT THAT WE HAVE ACTUALLY RECEIVED FROM YOU (AND NOT FROM YOUR CUSTOMERS) DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVES RIGHT TO YOUR DAMAGE, OR FIFTY US DOLLARS ($50), WHICHEVER IS GREATER; NOTWITHSTANDING THE FOREGOING, THE COMPANY MAY, AT ITS OPTION, INSTEAD DECIDE TO RE-PERFORM THE SERVICES WHICH ARE PERFORMED THROUGH OUR ASSETS. THIS LIMIT SHALL REMAIN IN EFFECT EVEN IF THERE IS MORE THAN ONE CLAIM.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the Company, its Laughingbird Software, licensors and service providers, and its and their respective officers, directors, shareholders, partners, owners, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable costs and attorneys’ fees) arising out of or relating to a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this agreement, (d) your use of the Affiliate Dashboard, or (e) our use of your trademarks.
We will notify you in writing within 30 days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Governing Law and Jurisdiction
All matters relating to this agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, this agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Ventura, State of California, although we retain the right to bring any suit, action or proceeding against you for breach of this agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Waiver of Trial by Jury
You also acknowledge and agree that any controversy that may arise under this agreement is likely to involve complicated and difficult issues and, therefore, you and we irrevocably and unconditionally waive any right you or we may have to a trial by jury in respect of any legal action arising out of or relating to these Terms.
At the Company’s sole discretion, it may require you to submit any disputes arising from this agreement, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the arbitration rules of the American Arbitration Association applying California law, such arbitration to be held in English in the County of Ventura, State of California.
In case of any claim, action, or proceeding arising hereunder, the prevailing party in such dispute shall be entitled to reasonable attorney’s fees and costs to be paid by the non-prevailing party.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree that a breach of this agreement will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
Waiver and Severability
If any provision of this agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this agreement will continue in full force and effect.
This agreement constitutes the sole and entire agreement between you and Laughingbird Software with respect to the Affiliate Program and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to said subject matter.
Compliance with Applicable Laws
You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to our products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer our products to prohibited countries or individuals or permit use of our products by prohibited countries or individuals.
We may give notice to you via the Affiliate Dashboard, the electronic mail address we have on file for you, or by written communication sent by first class mail or pre-paid post. Notices provided via the Affiliate Dashboard or electronic mail shall be deemed to have been given 12 hours after sending (or when received by you, if earlier), and noticed provided via first class mail shall be deemed to have been given upon the expiration of 48 hours after mailing or posting.
You may give notice to us (such notice shall be deemed given when received by us) at any time by sending an email to firstname.lastname@example.org. Please specify the reason for the email in the subject line so it can be forwarded to the proper person or department.
Consent to Receive Electronic Communications
You (a) consent to receive communications from us in an electronic form via the email address we have on file or via the Affiliate Dashboard; and (b) agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. We may also use your email address or Affiliate Dashboard to send you other messages, including information about Laughingbird Software and special offers. You may opt out of such emails.
This agreement will inure to the benefit of and will be binding upon each party’s successors and assigns. This agreement and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company, which may be withheld at the Company’s sole and absolute discretion. Any attempt by you to assign this agreement without the written consent of the Company shall be null and void. This agreement is not intended to and shall not be construed to give any third party any interest or right (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained herein or contemplated hereby. The headings and captions contained herein will not be considered to be part of this agreement but are for convenience only.
Last Updated: May 4, 2020