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Terms and Conditions – Affiliate Program

Last Updated: July 7, 2021

Thank you for your interest in the affiliate program (the “Program”) of Portland Earthquake Kits, LLC. (“Portland Earthquake Kits,” “we” or “us”)! This Portland Earthquake Kits Affiliate Program Agreement (“Agreement”) governs your participation in the Program. By participating in the Program, you agree to the terms of this Agreement. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Portland Earthquake Kits, for products, services or otherwise.

  1. Program Overview
  2. Enrollment
  3. Program Portal
  4. Payment
  5. Limited License
  6. Legal Compliance
  7. Prohibited Content
  8. Prohibited Activities
  9. Indemnification
  10. Disclaimers
  11. Limitation of Liability
  12. Termination
  13. Amendments
  14. Other Terms

1. Program Overview. The Program permits you to receive compensation (“Marketing Fees”) in exchange for referring customers that purchase Portland Earthquake Kits products and services. If we accept your Program application, we will provide you with an affiliate hyperlink (“Link”) for display on websites and online services operated by you that are approved by Portland Earthquake Kits for use in connection with the Program (“Your Services”).

2. Enrollment. To be eligible to participate in the Program, you must accurately complete our Program application. We reserve the right to reject your application for any reason. If you are entering into this Agreement on behalf of an entity: (a) you represent and warrant that you are authorized to bind such entity to this Agreement and that such entity will be responsible for your and any other of its employees or agents activities in connection with the Program; and (b) references to “you” in this Agreement will refer to you and such entity, collectively. You may only participate in the Program if permitted by the laws of the U.S., your jurisdiction, and the terms of any agreements you may have entered into with third parties. 

3. Program Portal. To participate in the Program, you will need to access Portland Earthquake Kits’ online Program portal (“Portal”), which is accessible through a URL that Portland Earthquake Kits will provide to you. You must comply with Portland Earthquake Kits’ Terms and Conditions in connection with your access and use of the Portal. Use of the Portal is also subject to Portland Earthquake Kits’ Privacy Policy. The Portal is considered part of the Portland Earthquake Kits Services.

4. Payment.

  1. Calculation. Subject to the terms of this Agreement, we will pay you a Marketing Fee of 6%, unless agreed otherwise, of all amounts actually received by Portland Earthquake Kits from new users that click on your Link and purchase qualifying Portland Earthquake Kits Products (as may be updated from time-to-time) within 30 days of clicking on your Link. 
  2. Limitations. Marketing Fees will not be payable to you for any purchase of Portland Earthquake Kits Products: (i) if the purchase does not occur within 30 days of when the user clicks on your Link; (ii) if, before making the purchase, the user has more recently clicked on the Link of another Program participant or has clicked on an advertisement at any time regardless of click order; (iii) that is later cancelled, refunded, charged back, or for which Portland Earthquake Kits does not receive payment; (iv) on which you already receive a revenue share or similar payment from Portland Earthquake Kits; (v) that occurred as a result of your breach of this Agreement, or while you were in breach of this Agreement; or (vi) that occurs after termination of this Agreement (collectively, an “Ineligible Transaction”). If we discover that we have paid you any Marketing Fees for an Ineligible Transaction, we may either require you to promptly repay the applicable amount, or we may offset such amount from future amounts payable to you under this Agreement. Program participants must cooperate with any investigation of their accounts or transactions. Portland Earthquake Kits may make adjustments to any Marketing Fees, in its sole discretion, that it deems as fraudulent, abusive, unethical, suspicious, or otherwise inconsistent with this Agreement or any other applicable law or regulation.
  3. Deductions. The Marketing Fees payable to you will be exclusive of taxes, refunds, and chargebacks, and we may offset such amounts against any Marketing Fees owed to you. You are responsible for any taxes payable in connection with the Marketing Fee, other than taxes payable in connection with our gross receipts or income.
  4. Payout. We will pay Marketing Fees to the payment method designated by you via the Portal no sooner than 45 days from the end of the calendar month in which the Marketing Fees accrued. If your Program account becomes inactive, any unpaid and accrued Marketing Fees may be subject to escheatment under applicable state law.

5. Limited License. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to display the Link and any Portland Earthquake Kits Marks on Your Services, and in other marketing communications that you may send, solely for the purpose of referring users to the Portland Earthquake Kits Products. “Portland Earthquake Kits Marks” means any of Portland Earthquake Kits’ trade names, trademarks, service marks, logos or other similar indicia of identity or source provided by Portland Earthquake Kits to you in connection with this Agreement. All goodwill arising from your use of the Portland Earthquake Kits Marks will inure to the benefit of us. Other than the limited license set forth in this Agreement, Portland Earthquake Kits reserves all right, title, and interest not expressly granted to you. You will use the Portland Earthquake Kits Marks in accordance with any written guidelines Portland Earthquake Kits provides to you. Upon request by Portland Earthquake Kits, you will provide samples of any marketing materials you have used, or plan to use, that incorporate the Portland Earthquake Kits Marks or the Link.

6. Legal Compliance. You must comply with all laws that apply to Your Services and your participation in the Program, including the FTC’s rules regarding sponsored endorsements (see the FTC website for more details), all privacy laws that apply to the collection, use and disclosure of personal information via Your Services, and all marketing laws that apply to any messages you send in connection with this Agreement. You are solely responsible for Your Services and your participation in the Program.

7. Prohibited Content. Your Services must not contain any content that: (i) is violent or sexually explicit; (ii) violates any applicable law or infringes or misappropriates any intellectual property right; (iii) is in any way harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; or (iv) includes malware, viruses, or other harmful code.

8. Prohibited Activities. You will not:

    1. Mislead users regarding the purpose or nature of Your Services;
    2. Engage in any fraudulent or unlawful activities;
    3. State or imply that you or Your Services are part of or endorsed by Portland Earthquake Kits;
    4. Use any Portland Earthquake Kits Marks, or any similar variations, other than as permitted under this Agreement. This includes not using the Portland Earthquake Kits Marks in website meta tags, bids for paid advertising, search engine optimization, or press releases;
    5. Use, or register for, any domain name containing any Portland Earthquake Kits Mark or any similar variations;
    6. Attempt to artificially or fraudulently increase your Marketing Fees in any way, such as by generating transactions that are intended to be canceled;
    7. Bypass, circumvent, or avoid any restrictions employed by the Portland Earthquake Kits Services;
    8. Use or add any UTM tags to the affiliate links;
    9. Take any action that may burden any Portland Earthquake Kits Services, including by using automated scraping, crawling or monitoring tools not authorized by Portland Earthquake Kits; or
    10. Request or collect any account information from our users, including any Portland Earthquake Kits usernames or passwords.
    11. Offer cash back, rewards or other incentives to drive traffic/sales via their affiliate links.
    12. Use traffic that is generated by pay to click, pay to read, banner exchanges, click exchanges, CPV advertising, pop-up/under, SPAM, purchased traffic or similar methods.
    13. Engage in “stacking” of affiliate programs such as using an affiliate link to refer to your own extension which you receive a commission for;
    14. Use cookie stuffing techniques that set the tracking cookie without the user actually clicking on the affiliate link (for example a 1×1 pixel iframe).
    15. Bid on or use Portland Earthquake Kits trademark, trademark +, or misspelled keywords for the purpose of PPC on Internet search engines (Google, Yahoo, MSN, Ask etc.)
    16. Use Portland Earthquake Kits trademark, trademark +, or misspelled keywords in their domain names.

9. Indemnification. You will indemnify and hold us and our affiliates and subsidiaries, and our and their respective directors, officers, employees, agents, and shareholders, (collectively, the “Portland Earthquake Kits Parties”) harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ or other professionals’ fees) that arise out of or relate to: (a) your participation in the Program, (b) your breach of this Agreement, or (c) Your Services.

10. Disclaimers. PORTLAND EARTHQUAKE KITS DOES NOT MAKE ANY WARRANTIES UNDER THIS AGREEMENT. THE PROGRAM, THE PORTLAND EARTHQUAKE KITS SERVICES, THE LINK AND THE PORTLAND EARTHQUAKE KITS MARKS ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PORTLAND EARTHQUAKE KITS DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

11. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA) RELATED TO THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (I) THE TOTAL MARKETING FEES PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE MOST RECENT EVENT GIVING RISE TO THE CLAIM OCCURRED, OR (II) US $100. THE LIMITATIONS IN THIS SECTION WILL NOT APPLY TO ANY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF PORTLAND EARTHQUAKE KITS.

12. Termination. You or we may, for any reason, terminate your participation in this Agreement at any time upon notice. Following termination, we will pay you any unpaid Marketing Fees, if valid, that you earned prior to the date of termination. Immediately upon termination, all licenses granted to you under this Agreement will be terminated, and you must remove any Link or any Portland Earthquake Kits Marks from Your Services. Sections 9-13 of this Agreement will survive termination of the Agreement.

13. Amendments. We reserve the right to modify the terms of this Agreement upon notice to you. We will provide notice of amendments by posting the revised Agreement to the Portal and updating the “Last Updated” date at the top of this Agreement, and in some cases, we may provide additional notice (such as via email). Your continued participation in the Program will confirm your acceptance of any amended terms of this Agreement. If you do not agree to any amendments, you must terminate your participation in the Program.

14. Other Terms. This Agreement constitutes the entire agreement between Portland Earthquake Kits and you concerning the subject matter hereof. You must ensure that your account information remains accurate and complete all times during your participation in the Program. Except as otherwise stated in this Agreement, any notices required under this Agreement will be sent to you at the email address maintained in your account, and to Portland Earthquake Kits at legal@portlandearthquakekits.com, with “Attention Affiliate Program” in the subject line. Except to the extent applicable law, if any, provides otherwise, this Agreement will be governed by the laws of the state of Oregon, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Multnomah County, Oregon. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Seattle, Washington, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may not assign your rights under this Agreement to any party without the consent of Portland Earthquake Kits; Portland Earthquake Kits may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

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