Last updated August, 2020
THIS AGREEMENT (the “Agreement”)
is entered into by 5 Day Deal and the Viewer of these pages (the “Viewer” or the “Viewing Party”).
The Viewer hereto desires to participate in discussions regarding The Complete Photography Bundle II (the “Bundle Sale”). During these discussions, Disclosing Party may share certain proprietary information with the Viewer. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Definition of Confidential Information.
(a) For purposes of this Agreement, “Confidential Information” means any data or information that is proprietary to the Disclosing Party and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such party, its affiliates, subsidiaries and affiliated companies; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of the Disclosing Party. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information. The Viewing Party acknowledges that the Confidential Information is proprietary to the Disclosing Party, has been developed and obtained through great efforts by the Disclosing Party and that Disclosing Party regards all of its Confidential Information as trade secrets
(b) Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which: (i) was known by the Viewing Party prior to receiving the Confidential Information from the Disclosing Party; (b) becomes rightfully known to the Viewing Party from a third-party source not known (after diligent inquiry) by the Viewing Party to be under an obligation to Disclosing Party to maintain confidentiality; (c) is or becomes publicly available through no fault of or failure to act by the Viewing Party in breach of this Agreement; (d) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of paragraph 4 hereof shall apply prior to any disclosure being made; and (e) is or has been independently developed by employees, consultants or agents of the Viewing Party without violation of the terms of this Agreement or reference or access to any Confidential Information.
2. Disclosure of Confidential Information.
From time to time, the Disclosing Party may disclose Confidential Information to the Viewing Party. The Viewing Party will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives (collectively “Representatives”) who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the parties to which this Agreement relates, and only for that purpose; (b) advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential; (c) shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own confidential information; and (d) not disclose any Confidential Information received by it to any third parties (except as otherwise provided for herein).
Each party shall be responsible for any breach of this Agreement by any of their respective Representatives.
3. Use of Confidential Information.
The Viewing Party agrees to use the Confidential Information solely in connection with the current or contemplated business relationship between the parties and not for any purpose other than as authorized by this Agreement without the prior written consent of an authorized representative of the Disclosing Party. No other right or license, whether expressed or implied, in the Confidential Information is granted to the Viewing Party hereunder. Title to the Confidential Information will remain solely in the Disclosing Party. All use of Confidential Information by the Viewing Party shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Viewing Party shall be the sole property of the Disclosing Party. Nothing contained herein is intended to modify the parties’ existing agreement that their discussions in furtherance of a potential business relationship are governed by Federal Rule of Evidence 408.
4. Compelled Disclosure of Confidential Information.
Notwithstanding anything in the foregoing to the contrary, the Viewing Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Viewing Party promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided in the case of a broad regulatory request with respect to the Viewing Party’s business (not targeted at Disclosing Party), the Viewing Party may promptly comply with such request provided the Viewing Party give (if permitted by such regulator) the Disclosing Party prompt notice of such disclosure. The Viewing Party agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the Disclosing Party with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party is unable to obtain or does not seek a protective order and the Viewing Party is legally requested or required to disclose such Confidential Information, disclosure of such Confidential Information may be made without liability.
This Agreement shall remain in effect for a two-year term (subject to a one year extension if the parties are still discussing and considering the Bundle Sale at the end of the second year). Notwithstanding the foregoing, the parties’ duty to hold in confidence Confidential Information that was disclosed during term shall remain in effect indefinitely.
Both parties acknowledge that the Confidential Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Confidential Information would destroy or diminish the value of such information. The damages to Disclosing Party that would result from the unauthorized dissemination of the Confidential Information would be impossible to calculate. Therefore, both parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any Confidential Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
7. Return of Confidential Information.
Viewing Party shall immediately return and redeliver to the other all tangible material embodying the Confidential Information provided hereunder and all notes, summaries, memoranda, drawings, manuals, records, excerpts or derivative information deriving there from and all other documents or materials (“Notes”) (and all copies of any of the foregoing, including “copies” that have been converted to computerized media in the form of image, data or word processing files either manually or by image capture) based on or including any Confidential Information, in whatever form of storage or retrieval, upon the earlier of (i) the completion or termination of the dealings between the parties contemplated hereunder; (ii) the termination of this Agreement; or (iii) at such time as the Disclosing Party may so request; provided however that the Viewing Party may retain such of its documents as is necessary to enable it to comply with its document retention policies. Alternatively, the Viewing Party, with the written consent of the Disclosing Party may (or in the case of Notes, at the Viewing Party’s option) immediately destroy any of the foregoing embodying Confidential Information (or the reasonably nonrecoverable data erasure of computerized data) and, upon request, certify in writing such destruction by an authorized officer of the Viewing Party supervising the destruction).
8. Notice of Breach.
Viewing Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information by Viewing Party or its Representatives, or any other breach of this Agreement by Viewing Party or its Representatives, and will cooperate with efforts by the Disclosing Party to help the Disclosing Party regain possession of Confidential Information and prevent its further unauthorized use.
9. No Binding Agreement for Bundle Sale.
The parties agree that neither party will be under any legal obligation of any kind whatsoever with respect to a Bundle Sale by virtue of this Agreement, except for the matters specifically agreed to herein. The parties further acknowledge and agree that they each reserve the right, in their sole and absolute discretion, to reject any and all proposals and to terminate discussions and negotiations with respect to a Bundle Sale at any time. This Agreement does not create a joint venture or partnership between the parties. If a Bundle Sale goes forward, the non-disclosure provisions of any applicable Bundle Sale documents entered into between the parties (or their respective affiliates) for the Bundle Sale shall supersede this Agreement. In the event such provision is not provided for in said Bundle Sale documents, this Agreement shall control.
Each party warrants that it has the right to make the disclosures under this Agreement.
NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER. The parties acknowledge that although they shall each endeavor to include in the Confidential Information all information that they each believe relevant for the purpose of the evaluation of a Bundle Sale, the parties understand that no representation or warranty as to the accuracy or completeness of the Confidential Information is being made by either party as the Disclosing Party. Further, neither party is under any obligation under this Agreement to disclose any Confidential Information it chooses not to disclose. Neither Party hereto shall have any liability to the other party or to the other party’s Representatives resulting from any use of the Confidential Information except with respect to disclosure of such Confidential Information in violation of this Agreement.
(a) This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties, with respect to the subject matter hereof. This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
(b) The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of Colorado (state) applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof. The Federal and state courts located in Colorado (state) shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
(c) Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(d) Although the restrictions contained in this Agreement are considered by the parties to be reasonable for the purpose of protecting the Confidential Information, if any such restriction is found by a court of competent jurisdiction to be unenforceable, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
(e) Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.
(f) This Agreement is personal in nature, and neither party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of the other party, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
(g) The receipt of Confidential Information pursuant to this Agreement will not prevent or in any way limit either party from: (i) developing, making or marketing products or services that are or may be competitive with the products or services of the other; or (ii) providing products or services to others who compete with the other.
(h) Paragraph headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
By Clicking the button on the page this is linked from, you are agreeing to these confidentiality conditions regarding pre-sale disclosures up until October 15th, 2014 unless otherwise directed by the 5Day Deal Team via email communication. By Clicking the button on the page this is linked from, you are agreeing to all other terms and conditions on an ongoing basis unless otherwise directed by the 5Day Deal Team via email communication.
Affiliate Operating Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND 5DAYDEAL. BY JOINING OUR AFFILIATE PROGRAM, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in 5DayDeal’s Affiliate Program. The purpose of this Agreement is to allow you to make referrals from your website to the 5DayDeal website in the manner set forth herein. Please note that throughout this Agreement, “we,” “us,” and “our” will mean 5DayDeal, and “you,” “your,” and “yours” will mean you, the affiliate.
2. Enrollment in the Affiliate Program
(a) Completion of the Application: If you have not already done so, you need to complete an application to the Affiliate Program. You need to identify your website, describe how you plan to implement the program, provide certain contact information. The application can be found at www.5DayDeal.com/affiliate.
(b) Acceptance of Your Application. You understand that we may accept or reject your application at our sole discretion. Your application will be rejected if any of the information you provide is incorrect or incomplete, or if your website promotes materials of a sexual, pornographic, violent, or defamatory nature, or if you or your website discriminate, violate any applicable law, violate any person’s intellectual property rights.
(c) Non-Defamation. Affiliate partners shall not, during the course of their partnership with 5DayDeal, nor at any time thereafter, directly or indirectly, in public or private, in any manner or in any medium whatsoever, deprecate, impugn or otherwise make any comments, writings, remarks or other expressions that would, or could be construed to, defame the Company, 5DayDeal or either of their reputations. Nor shall the partner assist any other person, firm or company in so doing.
(d) You Will Be Given a Password to Access Specific Affiliate Information: You will be given a password so that you may enter our secure Affiliate Center. From this website you will be able to download the affiliate material and receive your reports that will describe our calculation of the Referral Fees due to you. It is your responsibility to keep your username and password information secure.
3. As an Affiliate: What You Have to Do:
(a) Link to Our Site:
(i) As a member of 5DayDeal’s Affiliate Program, you will implement the links, widgets, ads and other means of linking your website to our website pursuant to the Specifications set forth at 5DayDeal.com/affiliate-area. At this site you will be able to download certain technical materials, including without limitations, links, HTML code, other software or applications, widgets, pixels, associated banner ads, copy and other content, and any documentation for the foregoing (collectively, “Referral Materials”).
(ii) We have the right to monitor your website as we feel necessary to make sure that you have used the Referral Materials and implemented and maintained the specifications properly. We will notify you of any changes that we feel should be made. Any failure by you to use the Referral Materials properly or to implement changes that we request will be a violation of this Agreement and grounds for termination.
(b) Give Us Your Full Cooperation: You agree to cooperate with us fully to establish and maintain any links between the our website and your website.
(c) Maintain Your Site: The maintenance and the updating of your website will be your responsibility. Because you are a member of our Affiliate Program and our information is updated often, it will be necessary for you to update the Referral Materials on your website on a regular basis to maintain consistency and accuracy between the our website and the specifications. We may monitor your website as we feel necessary to make sure it is up-to-date and to notify you of any changes we feel should be made, which changes you will promptly implement.
(d) Follow All Copyright Laws: It is entirely your responsibility to follow all applicable copyright and other laws that pertain to your website. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible if you use another person’s copyrighted material in violation of the law.
4. As an Affiliate: What You Need to Know and Understand
(a) We Can Monitor Your Site: You give us the right to monitor your website at any time to determine if you are following the terms and conditions of this Agreement, and to notify you of any changes we feel you should make to remain in compliance. Failure to comply is a violation of this Agreement and grounds for termination.
(b) We Determine the Policies for the Purchases: Customers who purchase products through referrals made in the Affiliate Program will be considered our customers. All our rules, policies, and operating procedures concerning customer orders and customer service will apply to those customers. We may change our policies and operating procedures at any time.
(c) You Cannot Send Out Publicity Without Our Consent: You may not create, publish, distribute, or permit any written or electronically transmitted publicity material that makes reference to us without first submitting the material to us and receiving our consent.
(d) Starting Date of this Agreement: This Agreement will begin upon our acceptance of your Affiliate application.
(e) How this Agreement can be Ended: Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax.
(f) You agree to not ask us to change commissions for a sale.: Our affiliate program is run on the industry-standard last click cookie system. We also have an experienced tech team who are ensuring everything will run smoothly. This is why it is important for you to agree upfront that you won’t ask us to change affiliate commissions even if you think someone meant to sign up under your link (and they ended up signing up under someone else’s instead).
(g) If the customer requests a change, we reserve the right to adjust associated commissions if necessary.: If a customer unknowingly makes an error and requests to be assigned to another partner, we reserve the right to make changes to a referrer when the customer writes in requesting such a change. We’ll only make changes when the customer emails us requesting the change. We won’t make changes to a referrer otherwise. Referral changes may be limited to a reasonable amount.
(h) We Can Modify this Agreement: We may modify any of the terms and conditions in this Agreement, at any time in our sole discretion. Modifications may include, but are not limited to, changes in the scope of Referral Fees, payment procedures, and Affiliate Program rules, or to specifications or Referral Materials. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the Affiliate Program following the posting of the change notice or new agreement on our site will indicate your agreement to the changes. The most up to date version will be available via this link here.
5. As an Affiliate: What You Receive
(a) You Earn Referral Fees: Except in states in which such a transaction is not permitted, you are eligible to earn Referral Fees during the term of this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. The exact amount of Referral Fees due to you in any given quarter will be calculated in the following manner:
(i) The Referral Fee shall be an agreed upon percentage of the amount actually received by us from a Referral that makes a purchase on our website during the sale, less returns, credits, and shipping. A “Referral” is a person that you refer from your website to our website using the Referral Materials in accordance with the specifications. Final determination as to whether to accept a Referral as a customer is at our sole determination. You will receive the appropriate tax form for the fees paid to you.
(ii) Payment of Referral Fees will be made as soon as it has been determined that no charge-backs, returns, refunds, or other fees should be deducted from your payment amount. Referral Fees are based on amounts we actually receive from Referral customers during the sale.
(iii) If we determine that payment of Referral Fees to you in any jurisdiction is illegal under any laws, then we may reserve the right to not pay Referral Fees for any sales made in that jurisdiction.
6. Grant of Licenses
(a) Subject to all the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferable, revocable right to: (i) grant your end-users access to our website solely through the Referral Materials used in accordance with the specifications and (ii) solely in connection with such activities, to use the Referral Materials and specifications. You may not alter, modify, or change the Link Referral Materials and specifications in any way. You are only entitled to use the Referral Materials and specifications to the extent that you are a member in good standing of our Affiliate Program.
(b) You grant to us a non-exclusive, non-transferable, revocable right to use your names, titles, and logos in the advertising, marketing, promoting, and publicizing in any manner of our rights under this Agreement. However, we are under no obligation to so advertise, market, promote, or publicize.
(c) Each party agrees not to use the other’s proprietary materials in any manner that is disparaging or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Either party may revoke this license at any time by giving the other party written notice. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
7. As An Affiliate: More Things You Need To Know and Understand
(a) Disclaimer: WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING 5DayDeal. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
(b) Representations and Warranties: You represent and warrant to us that:
(i) This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
(ii) You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
(iii) You have sufficient right, title, and interest in and to the rights granted to us in this Agreement; and,
(c) Limitations of Liability: WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL REFERRAL FEES PAID TO YOU UNDER THIS AGREEMENT.
(d) Indemnification: You agree to indemnify and hold harmless 5DayDeal and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding.
(i) Each party shall be deemed to be independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship.
(ii) You may not assign your rights or obligations under this Agreement to any party, and any attempt to do so will be void and without effect. We are free to assign this Agreement.
(iii) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Nebraska without regard to the conflicts of laws and principles thereof.
(iv) You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
(v) This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
(vi) The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
(vii) If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
(viii) We may change this agreement at any time without notification or warning. For example, we may add, delete or amend terms or services.
(ix) YOU HAVE READ AND TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIM PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT.