Affiliate Samples Agreement
Updated: May 12, 2021
AFFILIATE SAMPLES AGREEMENT
This Affiliate Samples Agreement (the “Agreement”) is made and entered into the date samples are sent (the “Effective Date”) by and between Riddlic, Inc., DBA RECOUP (“RECOUP”), a Delaware corporation, and Company providing free samples to Recoup or Recoup Creators. (“The Sample Provider”). The Sample Provider and RECOUP are each also referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, The Sample Provider desires to provide to RECOUP free samples of The Sample Provider’s products or services, and RECOUP desires to create review videos of such products or services, all in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is expressly acknowledged, the Parties agree as follows:
Responsibilities of the Parties.
The Sample Provider:
The Sample Provider will provide to Recoup samples of their product or service
The Sample Provider will make the above described quantity of products or services available to Recoup through promo codes, gift cards, or by sending the product or service to names and addresses that Recoup designates.
RECOUP is responsible for selecting which reviewers will receive The Sample Provider’s free products or services, distributing free samples to various customers and creators in order to have written or video reviews of the products or services, and encouraging the creation of the written or video reviews. Recoup does not guarantee each Creator will produce a review video. Recoup does not guarantee that Creator review videos will be positive.
No value shall be exchanged for products or services regardless of the quantity, content, or quality of reviews.
There is no obligation for Recoup or its reviewers to continue paying for products or services after receipt of the free sample.
Intellectual Property. Each Party hereby acknowledges that, as between the Parties, the other Party and its licensors own all rights, title and interest in and to their respective websites or mobile applications and other Intellectual Property Rights (defined below) used in their respective businesses, including, without limitation, any query information or data resulting from User use of their respective websites, or the provision of any data to a party and any Intellectual Property Rights therein and/or related thereto. Each Party’s name(s) and logo(s) are trademarks of such Party, and no right or license is granted to the other Party or to any User herein to use such trademarks, except as expressly set forth in this Agreement. “Intellectual Property Rights”, as used herein, also means all intellectual property rights worldwide, including (i) trade names, registered and unregistered trademarks, service marks, logos and any applications therefor; (ii) all patents, patent applications and invention disclosures, including the inventions and improvements described and claimed therein; (iii) all registered and unregistered copyrights in both published works and unpublished works; (iv) all rights in mask works; (v) all rights in such Party’s know-how, trade secrets, ideas, confidential or proprietary information, software, both object and source code, technical information, data, process technology, plans, drawings, inventions and discoveries, whether or not patentable, and (vi) all rights in internet web sites, internet domain names, keywords, key word values and attributes, key word clusters and clustering techniques, advertisement creative and account organization on search engines. For the avoidance of doubt, RECOUP shall own all right, title and interest in and to all information collected from users of the RECOUP’s websites or mobile application, including without limitation information related to such users’ behavior while on such sites. The Sample Provider shall own all right, title and interest in and to all information collected from users of any websites and mobile applications owned, operated or controlled by The Sample Provider. The Sample Provider has no intellectual property rights to resulting reviews or review videos.
The Parties, along with their representatives and agents, agree to maintain perpetually the confidential nature of this Agreement as well as all other Confidential and Proprietary Information, non-public information that the Parties hereto may exchange during the course of the Agreement contemplated herein. For purposes of this Agreement, ‘Confidential and Proprietary Information’ shall mean all information, whether written, oral or in any other medium disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) including, without limitation, data, technology, know-how, inventions, discoveries, designs, processes, formulations, models, equipment, algorithms, software programs, interfaces, documents, specifications, information concerning research and development work, and/or trade and business secrets. Confidential and Proprietary Information will also include information disclosed by ether Party which relates to current, planned or proposed products, marketing and business plans, forecasts, projections and analyses, financial information, third-party information that the Disclosing Party is obligated to keep confidential, and any Customer Account Information including, but not limited to, Non-Public Information as defined by the Gramm-Leach-Bliley Act of 1999. Neither Party may issue any press release or other public statement regarding this Agreement or the Parties’ activities without the prior written or email consent of the other.
Confidential Information shall not, however, include any information which the Receiving Party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Receiving Party; (ii) becomes publicly known and made generally available after disclosure to Receiving Party through no action or inaction of Receiving Party; (iii) is in the possession of Receiving Party, without confidentiality restrictions, at the time of disclosure as shown by Receiving Party's files and records immediately prior to the time of disclosure; or (iv) is or has been independently developed by the Receiving Party without use of Disclosing Party’s Confidential Information.
Except for the specific rights granted by this Agreement, neither Party shall use or disclose any of the other's Confidential Information without its prior written consent. The Receiving Party shall use reasonable care to protect Confidential Information of the Disclosing Party. Each Party shall be responsible for any breach of confidentiality by its employees and contractors, if any. If required by law, the Receiving Party may disclose Confidential Information of the Disclosing Party, but will give adequate prior notice of such disclosure to permit the Disclosing Party to intervene and request protective orders or other confidential treatment therefor. Both Parties agree that no ownership of the Disclosing Party’s Confidential Information is conveyed to the Receiving Party.
Upon the termination or expiration of this Agreement, or upon Discloser’s earlier request, Receiving Party will immediately (1) destroy, and provide evidence of such destruction, or (2) return to Disclosing Party, and not keep in their possession, recreate, or deliver to anyone else, any and all of Disclosing Party’s property, including, but not limited to, Confidential Information including any records maintained and any reproductions that Receiving Party may have in its possession or control. Both Parties agree that their obligations under this Section 5 will continue after the termination of this Agreement related to any Confidential Information that remains in Receiving Party’s possession.
Representations and Warranties.
Each Party represents, warrants and covenants that:
it is duly organized, validly existing, in good standing, and is duly licensed and registered in any jurisdiction as required to carry out its obligations under this Agreement;
it has the full corporate authority to execute this Agreement and perform its obligations hereunder,
the delivery under, or the execution or performance of, this Agreement will not (1) violate or be considered a breach of any law or regulation or obligation to any third-party; and (2) does not infringe any patent, copyright, trademark, right of privacy or publicity or other proprietary right of any third party; or (3) does not misappropriate any trade secret of any third party;
The Sample Provider Represents, Warrants and Covenants that:
it will perform or support the Review Services in accordance with applicable federal, state, local and foreign laws, ordinances and regulations, and with all applicable laws and regulations, including, but not limited to, the CAN SPAM Act and any state and federal laws related to unfair and deceptive acts or practices;
it has the qualifications and the ability to provide samples in a professional manner without the advice, control or supervision of RECOUP and Referral Services will be performed in a professional and workmanlike manner in accordance with the applicable industry standards;
RECOUP Represents, Warrants and Covenants that:
any software, links, or other technology used in the delivery of the Review Services (1) does not contain any: (a) viruses, worms, trojan horses, other harmful code or any other code that replicates, transmits or activates itself without the control of the person operating the equipment on which such code resides; (b) hidden files; (c) key, node lock, timeout or other function, whether implemented by electronic, mechanical or other means, that restricts or may restrict use or access to any programs or data based on the residency on a specific hardware configuration, frequency or duration of use, or other limiting criteria; or (d) features or capabilities that attempt to access systems that such services is not otherwise intended by RECOUP to access; and (2) does not contain software that may be considered “Free and Open Source Software”, or “FOSS” where “FOSS” means any software that users are allowed to run, study, copy modify and redistribute without restriction, and for which access to source code is a prerequisite to its use, and for which users may or may not be required to pay a fee for use of the software.
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Warranty Notification. If either Party becomes aware that it may be out of compliance with any of its warranty obligations it will notify the other Party, as soon as reasonably practicable, of the exact nature of the warranty it believes to be in violation and its plan to correct the noncompliance.
Indemnification. Each Party (the “Indemnifying Party”) hereby agrees to defend, indemnify and hold harmless the other Party, and its respective officers, directors, shareholders, affiliates, and employees (each, an “Indemnified Party”) from and against any losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and expert witness fees, if applicable) (collectively, “Losses”) arising directly or indirectly out of a claim or action brought against an Indemnified Party by a third party (collectively, the "Claims") resulting from a breach of this Agreement by the Indemnifying Party, including, without limitation, (i) the breach of any representation, warranty, covenant, intellectual property obligation or confidentiality obligation, (ii) any grossly negligent, reckless or intentionally wrongful act of such Party or it’s assistants, employees, contractors or agents, (iii) any failure of such Party or its assistants, employees, contractors or agents to comply with all applicable laws, rules and regulations; or (iv) any unauthorized acts and/or omissions in connection with this Agreement. In addition, Each Party (the “Indemnifying Party”) hereby agrees to defend, indemnify and hold harmless the other Party, and its respective officers, directors, shareholders, affiliates, and employees (each, an “Indemnified Party”) from and against any Losses, arising directly or indirectly from or in connection with any violation or claimed violation of a third-party’s rights resulting in whole or in part from a Party’s use of the other parties Marks or Intellectual Property or the Review Services under this Agreement. The indemnification obligations set forth in this Section 9 are contingent on (i) prompt written notice by the Indemnified Party to the Indemnifying Party of any third party Claim for which indemnity may be sought under this section (provided, however, that any failure or delay in providing such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the failure or delay actually and materially prejudices the Indemnifying Party’s defense of such third party Claim), and (ii) reasonable cooperation of Indemnified Party, at the Indemnifying Party’s expense, to facilitate such defense or settlement. The Indemnifying Party will not consent to the entry of any judgment or enter into any compromise or settlement with respect to a third party Claim for which it is defending an Indemnified Party hereunder without the prior written consent of such Indemnified Party unless such judgment, compromise or settlement (i) provides for the payment by the Indemnifying Party of money as sole relief for the party making a claim, (ii) results in the full and general release of the Indemnified Party from all liabilities arising or relating to, or in connection with, such third party Claim and (iii) involves no finding or admission of any violation of law, regulation or the rights of any person and no effect on any other claims that may be made against the Indemnified Party.
Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; (B) ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (C) THIRD PARTY CLAIMS THAT ARE SUBJECT TO THE INDEMINCIATION OF THE AGREEMENT; TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SHALL HAVE NO LIABILITY (WHETHER ARISING IN CONTRACT, TORT, WARRANTY OR OTHERWISE) TO EACH OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR REVENUE, COVER, FAILURE OF THE INTERNET, OR LOSS FROM ANY BUSINESS DISRUPTIONS), ARISING OUT OF THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER.
Remedies. No remedy or election shall be deemed exclusive but shall, wherever The Sample Provider, be cumulative with all other remedies at law or in equity.
Authority. Each Party represents and warrants to the other Party as to itself only that it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
Compliance with Applicable Laws. Each Party agrees that it will comply with all federal, state and local laws and regulations applicable to its business and to the subject matter of this Agreement, including, without limitation, all applicable Privacy Regulations.
Conflicting Obligations. Neither Party will have any agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement or their ability to fulfill their obligations under this Agreement. Neither Party will enter into any such conflicting agreement during the term of this Agreement.
Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
Insurance. RECOUP will maintain in full force and effect with reputable insurance companies during the Term insurance coverage necessary and reasonable to protect and indemnify The Sample Provider from and against any claims for which RECOUP may be liable pursuant to this Agreement. RECOUP will provide evidence of such insurance upon request in the form of a certificate issued by its insurance carrier(s).
No Exclusivity. Nothing in this Agreement will preclude either Party from providing or receiving similar or same services with any other party in any territory.
Relationships of Parties. The relationships of the Parties shall be solely that of independent business entities, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the Parties shall be construed to create a relationship of employer and employee, agency, joint venturers or clients between the parties. Neither Party shall have the right, power or authority to enter into agreements of any kind on behalf of the other Party, or to create any obligation or responsibility, express or implied, on behalf of the other Party and neither Party shall do anything to suggest to third parties that the relationship between the Parties is anything other than that of independent contractors.
Use of Name. With prior written approval, either Party may grant to the other Party the limited right to use that Party’s name, logo and/or other marks. After such approval is granted, both Parties agree to discontinue such use within seven (7) days of the other Party’s written request.
Notices. All notices to the other Party under this Agreement must be sent via email or regular U.S. mail.
Arbitration and Equitable Relief. Both Parties agree that any and all controversies, claims, or disputes with anyone whether brought on an individual, group, or class basis, arising out of, relating to, or resulting from the relationship between the Parties, including any termination of or breach of this Agreement, will be subject to binding arbitration under the arbitration rules set forth in the Code of Civil Procedure (the “Act”) and pursuant to Delaware law. The Federal Arbitration Act will continue to apply with full force and effect notwithstanding the application of procedural rules set forth in the Act. Disputes which both Parties agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under local, state, or federal law. Both Parties agree that:
any arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) pursuant to its employment arbitration rules & procedures (the “JAMS Rules”), and
the arbitrator will have the power to award any remedies available under applicable law, and
the arbitrator will award attorneys’ fees and costs to the prevailing party, except as prohibited by law, and
the decree or award rendered by the arbitrator may be entered as a final and binding judgment in any court having jurisdiction thereof, and
To the extent that the JAMS rules conflict with Delaware law, Delaware law will take precedence. Except as provided by the Act and this Agreement, arbitration will be the sole, exclusive, and final remedy for any dispute between the Parties. Either Party may also petition the court for injunctive relief where either Party alleges or claims a violation of any agreement regarding intellectual property, confidential information or noninterference. In the event either Party seeks injunctive relief, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
Disputes. Except for a breach of the confidentiality provisions of this Agreement, prior to either Party commencing any legal action under this Agreement, the Parties agree to try, in good faith, to settle the dispute amicably between executives of the respective Parties who have sufficient authority to sign a binding settlement agreement.
Choice of Law. This Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of Delaware without reference to its Choice of Law principles. In any court action at law or equity that is brought by one of the Parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.
Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), terrorists acts, fires, flood, earthquakes, explosions, and other acts of God (a “Force Majeure Event”). If any such Force Majeure Event occurs, the affected party will give the other party prompt notice of such Force Majeure Event and the expected duration of any resulting delay or inability to perform, and will use commercially reasonable efforts to minimize the impact of any such event.
Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The Parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in a writing signed by the Parties. The waiver of any breach of any provision under this Agreement by a Party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that either Party may assign its rights without such consent to an entity that acquires all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise and The Sample Provider may assign this Agreement to its Affiliates without consent. Any attempted assignment or delegation in violation of this section will be of no effect. Subject to the preceding sentence, the rights and liabilities of the Parties under this Agreement will bind and inure to the benefit of the Parties’ respective successors and permitted assigns and delegates.
Cooperation. RECOUP agrees to reasonably cooperate with The Sample Provider with respect to any inquiries from a The Sample Provider regulator.
Entire Agreement. This Agreement contains the entire understanding and agreement of the Parties regarding the subject matter hereof and supersedes all oral and prior written negotiations, understandings, and agreements with respect thereto. The Parties understand and acknowledge that there have been no promises, representations, agreements, warranties or undertakings by either of the Parties, either written or oral, except as stated in this Agreement. This Agreement may only be altered, amended or modified by a written instrument signed by both Parties, and the Parties understand and acknowledge that emails are not recognized as signed writings for the purpose of amending the terms and conditions of this Agreement.