Contributing Photographer and Affiliate Program Operating Agreement
CONTRIBUTING PHOTOGRAPHER AND AFFILIATE PROGRAM OPERATING AGREEMENT
Contributing Photographer and Affiliate Program Operating Agreement (SUMMARY)
Welcome to Whole Lotta Bugs! Thank you for deciding to become a member of our Contributing Photographer and/or Affiliate Program.
The following Operating Agreement Summary outlines the general terms and conditions of the Contributing Photographer and Affiliate Program and applies to anyone accessing or using the Program, whether as a merchant (“we” or “merchant”), as a Contributing Photographer (“you”, "user", "contributing photographer, or "affiliate") who collects royalties and/or referral commissions on eligible sales of the merchant's Products or Services, or as an Affiliate (“you”, "user", or "affiliate") who collects referral commissions on eligible sales of the merchant's Products or Services.
The Whole Lotta Bugs Contributing Photographer and Affiliate Program Operating Agreement consists of all the information found in the “Summary” section, the “Complete” section which is found immediately following the Summary section, and in any documents that have a hot link within the Summary and Complete sections (e.g., the Contributing Photographer and Affiliate Program Commissions Schedule).
By joining this program, Contributing Photographers and Affiliates accept to use the Program in the manner stated in this Operating Agreement and are bound by them. You are not authorized to register as a Contributing Photographer or as an Affiliate, or participate in the Program in any way if you do not agree to this Operating Agreement in its entirety.
Approve & Deny the Registration
In our sole and absolute discretion, we reserve the right to approve or deny ANY Contributing Photographer and Affiliate Program Registration. For the denial of your Registration, you will have no legal recourse against us.
Affiliate Links & Coupon
Although an Affiliate Link is generated automatically, you can also create one for a single product or collection. If customers click on someone else's Affiliate Links and afterwards click on yours, it's yours that counts.
On the dashboard, Affiliates may or may not be assigned to one discount code, with specifics and usage clarified. You will not receive a double commission if a customer clicks on the Affiliate Link and then uses the coupon code. If you have not been assigned a branded coupon, you aren't authorized to advertise it.
Affiliates may also promote the Whole Lotta Bugs website on social media platforms such as Facebook and Instagram, as well as in print publications such as magazines and newspapers.
Commission & Payouts
Royalty Commissions: You will receive a royalty commission on any product featuring your User Content (e.g., your photography) that is sold in our store. The commission amount is determined by a percentage of the Qualified Purchase value as defined in the Contributing Photographer and Affiliate Program Commissions Schedule.
Referral Commissions: When you refer a consumer to our website and they place an order, you will be paid a commission based on the Commission Structure. The commission amount is determined by a percentage of the Qualified Purchase value as defined in the Contributing Photographer and Affiliate Program Commissions Schedule.
You must set payment details in your Account dashboard settings to get the commission.
Payments will be made only for transactions that have been completed successfully. The Contributing Photographer and Affiliate Program is regulated by a fair usage policy which allows Whole Lotta Bugs to examine each and every conversion. Status of the commission is displayed in the Conversions Tab and any paid commission will be listed on the Payouts Tab. Transactions that result in chargebacks or refunds are not eligible for payment.
Through the Marketing Resources Tab, we may share promotional media with you, such as a banner, logo, or a specific collection promotion. To distribute on affiliate channels, you may either download the media or acquire the HTML embed code.
If the Network Tab is enabled, Affiliates can ask others to become their Downline Affiliates. If a Downline Affiliate successfully refers an order for Whole Lotta Bugs, the Upline Affiliate will receive a Network Commission based on the our settings.
Share the Network Link with other Affiliates to invite them to join the network, and each Affiliate who clicks on the link and registers will become a Downline Affiliate.
We track customers who click on your link using cookies, thus, they must be using cookies so we can track them.
We cannot track a user who does not allow cookies or clears their cookies, so we cannot pay rewards on that person's activity.
Cookie duration is specified as 30 days from the beginning of the tracking period. When a customer clicks on the Affiliate's Link or apply the coupon, the tracking period begins. During the cookie tracking period, every purchase made by this customer on the Whole Lotta Bugs Marketplace will result in commissions to the Affiliate (the customer will not be required to click on the Affiliate Link again) unless the customer clicks on another Affiliate's Link or applies another Affiliate's coupon code before completing their purchase.
Exclusion from Affiliate Program
If a you would like to be dismissed from our program, you can send an email to: email@example.com.
We're delighted you've made it this far through this important information.
You can come back to this Contributing Photographer and Affiliate Program Operating Agreement at any time, and if you have any questions, send an email to firstname.lastname@example.org for assistance.
Contributing Photographer and Affiliate Program Operating Agreement (COMPLETE)
Thank you for your interest in becoming a Contributing Photographer and/or Affiliate with Whole Lotta Bugs.
Below you will find some important details about the terms and conditions that govern our Program. For example, some of the topics covered in this agreement include the responsibilities and obligations of both parties, ownership of intellectual property (Section 7A & 7B), and terms of payment.
Please read this agreement carefully as it outlines the legal details of our relationship with you through the parameters of this program, should you be invited and/or accepted to become a Contributing Photographer and/or Affiliate.
By taking part in our program, you agree to the Contributing Photographer and Affiliate Program Operating Agreement in its entirety.
This is a Contributing Photographer and Affiliate Program Operating Agreement (the “Agreement”) between the merchant (“Whole Lotta Bugs”, “WLB”, “we”, “us”, “our”), and the Contributing Photographer and/or Affiliate (“you”, “Affiliate”, "Contributing Photographer", or “User”), the party signing up to become a Whole Lotta Bugs Contributing Photographer and/or Affiliate. The terms and conditions contained in this Agreement apply to your participation as a Contributing Photographer and/or Affiliate with the Whole Lotta Bugs Contributing Photographer and Affiliate Program (“Affiliate Program”). By signing up, you expressly consent to all the terms and conditions of this Agreement, so please read this Agreement carefully.
2. Enrollment in Affiliate Program
To enroll in our Affiliate Program, you must successfully sign up. After you successfully sign up, you will be notified by email when you are successfully enrolled in our Affiliate Program. We may reject your enrollment at our sole discretion for any reason.
If we reject your enrollment, you are welcome to sign up again at any time. However, if we accept your enrollment and we later determine that you are unsuitable for our Affiliate Program, we may terminate this Operating Agreement. For the denial of your Affiliate Program Registration, you will have no legal recourse against us.
3. Our Obligations & Responsibilities
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, Whole Lotta Bugs agrees as follows:
- We will make available to you via the Affiliate Program graphic and/or textual links to wholelottabugs.com (the “Program Website”) and/or other creative materials (collectively, the “Links”) which you may display on websites owned or controlled by you, social media accounts owned or controlled by you, in emails sent by you and clearly identified as coming from you, in online advertisements on social media, as well as print materials (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Website.
- We will pay Contributing Photographers royalty commissions on all Qualified Sales that were made on any of our products containing your User Content (e.g., photos). A “Qualified Sale” means a sale that has been completed successfully and has not been charged back or refunded.
- We will pay Contributing Photographers and/or Affiliates referral commissions for each Qualified Action. A “Qualified Action” means an individual person who (i) accesses the Program Website via the Link, where the Link is the last link to the Program Website, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields, (iv) completes all of the information required for such action within the time period allowed by us and (v) is not later determined by us to be fraudulent, incomplete, unqualified or a duplicate (“Customer” or “Customers”).
- We will pay you any Commissions earned approximately seven (07) days after each Qualified Sale and/or Qualified Action, provided that your account is currently greater than $10. Accounts with a balance of less than $10 will not be paid until an account balance of at least $10 is reached. If you decide to be dismissed from the Whole Lotta Bugs Affiliate Program, the $10 minimum balance will not necessary to collect your final payment and we will pay you any Commissions you are owed, provided that your account is currently greater than $0.
- We reserve the right to charge back to your account any previously paid Qualified Sales and/or Qualified Actions that are later determined to be fraudulent or have not met the requirements to be a Qualified Action.
- We will pay your Commissions via PayPal, Venmo, or CashApp. You will let us know which of those payment methods you prefer. We will not cover or pay for any associated transaction fees.
- Payment for Commissions is dependent upon Customers providing such funds to us, and therefore, you agree that Whole Lotta Bugs shall only be liable to you for Commissions to the extent that we have received such funds from Customers. You hereby release Whole Lotta Bugs from any claim for Commissions if Whole Lotta Bugs has not received such funds from Customers.
- We will automatically generate an invoice on your behalf for all Commissions payable under this Agreement and shall remit payment to you based upon that invoice. All tracking of Links and determinations of Qualified Actions & royalty and/or referral Commissions shall be made by us in our sole discretion. In the event that you dispute in good faith any portion of an invoice, you must submit that dispute to us in writing and in sufficient detail within thirty (30) days of the date on the invoice. If you do not dispute the invoice as set forth herein, you agree that you irrevocably waive any claims based upon that invoice. In the event that you also track Qualified Actions and you claim a discrepancy, you must provide us with your reports within three (3) days after last day of the calendar month. If Whole Lotta Bugs' and Affiliate’s reported statistics vary by more than 10% and we reasonably determine that you have used generally accepted industry methods to track Qualified Actions & royalty and/or referral Commissions, then Whole Lotta Bugs and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then our numbers shall govern.
- If you have an outstanding balance due to us under this Agreement or any other agreement between you and Whole Lotta Bugs, whether or not related to the Contributing Photographer and Affiliate Program, you agree that we may offset any such amounts due to us from amounts payable to you under this Agreement.
- For additional information about Commissions, please read the Contributing Photographer and Affiliate Program Commissions Schedule.
4. Your Obligations & Responsibilities
Subject to our acceptance of you as a Contributing Photographer and/or Affiliate and your continued compliance with the terms and conditions of this Agreement, you agree to:
- Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
- Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or person rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on gender, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains material that we inform you that we consider objectionable (“Objectionable Content”).
- Not make any representations, warranties or other statements concerning Whole Lotta Bugs or Customers or any of their respective products or services, except as expressly authorized herein.
- Ensure that your Media does not copy or resemble the look and feel of the Program Website or create the impression that your Media is endorsed by Whole Lotta Bugs or is a part of the Program Website, without prior written permission from us.
- Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
- Comply with the terms, conditions, guidelines and policies of any third party services you use in connection with the Affiliate Program, including but not limited to email providers, social networking services, and ad networks.
- Always prominently post and make available to Customers any terms and conditions in connection with the Affiliate Program, or as required by applicable laws.
- Ensure that you do not place Whole Lotta Bugs ads on any online auction platform, (e.g., eBay, Amazon, etc.)
5. Program-Specific Terms
- Email Campaigns — For all email campaigns, you must download the “Suppression List” from us, if it is available. You shall filter your email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on your email list. We will regularly update the Suppression List. You agree to download the updated Suppression List and filter your email list prior to sending any email containing the Links. We will provide an opt-out method in all Links, however, if any opt out requests come directly to you, you shall immediately forward them to us at email@example.com. Your emails containing the Links may not include any content other than the Links, except as required by law.
- You agree that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to us pursuant to this Agreement or otherwise.
- The Suppression List may not be used by Affiliate for any purpose other than to comply with applicable laws regulating the e-mail transmissions. You may not send emails containing the Links or otherwise market the Links to addresses contained in the Suppression List. You understand that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other legal rights or remedies available to us pursuant to this Agreement or otherwise.
- Advertising Campaigns — No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed to in writing by us. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by you shall only have been installed on an end user’s computer if the function of the software is clearly disclosed to end users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software can be easily removed according to generally accepted methods.
- Affiliate Network Campaigns — If you maintain your own affiliate network, you agree to place the Links in your affiliate network (“Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). You agree to expressly forbid any Third Party Affiliate to modify the Links in any way. You agree to maintain your Network according to the highest industry standards. You shall not permit any party to be a Third Party Affiliate whose website or business model involves Objectionable Content. All Third Party Affiliates must be in good standing with you. You must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. You shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects wrongdoing by a Third Party Affiliate with respect to the Links, you shall promptly disclose to us the identity and contact information for such Third Party Affiliate. You shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Links upon written notice from us. Unless we have been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by Whole Lotta Bugs, you shall remain liable for all acts or omissions of any Third Party Affiliate.
Except as otherwise provided in this Agreement or with the express written consent of Whole Lotta Bugs, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Contributing Photographer and Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. You shall not use any information obtained from the Contributing Photographer and Affiliate Program to develop, enhance or operate a service that competes with the Contributing Photographer and Affiliate Program, or assist another party to do the same.
7A. Limited License & Intellectual Property
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our website through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Contributing Photographer and Affiliate Program and assisting in increasing sales through the Program Website. You may not alter, modify, manipulate or create derivative works of the Links or any Whole Lotta Bugs graphics, design, copy or other materials owned by, or licensed to, us in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Contributing Photographer and Affiliate Program. We may revoke your license at any time by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of Whole Lotta Bugs' trademarks, service marks, copyrights, patents or trade secrets. You agree that we may use any suggestion, comment or recommendation you choose to provide to us without compensation. All rights not expressly granted by this Agreement are reserved by us.
You agree that you will not use any of the contents of Whole Lotta Bugs, our Website, or any other related material owned by us to create, publish, or otherwise develop your own product.
7B. More Intellectual Property & Content Rights, Request For Removal, Developments, and Applicable Definitions
- Agreement means the agreement between you and Whole Lotta Bugs in relation to your use of the Services as governed by these Terms.
- Customers means the customers who purchase Products through the Whole Lotta Bugs Marketplace.
- Design(s) means the design created by Whole Lotta Bugs using User Content, which is to be uploaded to the Whole Lotta Bugs website and printed on the Merchandise to create the Products sold in our Marketplace.
- Developments means any information you provide (excluding your Intellectual Property and User Content) to Whole Lotta Bugs. This includes but is not limited to notes, messages, e-mails, postings, letters, ideas, suggestions, concepts, feedback or other written materials which you submit or communicate to Whole Lotta Bugs in relation to the Services and or User Content (excluding your Intellectual Property and User Content itself).
- Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Marketplace means any website or physical location where Whole Lotta Bugs sells Products.
- Media means any posts you make anywhere on the internet (e.g., social media accounts) or any printed media (e.g., flyers) that includes any content that is directly related to the Whole Lotta Bugs Contributing Photographer and Affiliate Program and / or Marketplace.
- Merchandise means t-shirts, clothing and other items to which the Design is added to make the Products.
- Products means the product comprising of the Merchandise and the Design and is sold through the Whole Lotta Bugs Marketplace.
- Request For Removal means any written request a User sends to firstname.lastname@example.org which states their request for the removal of some or all of that User’s Intellectual Property and User Content from the Whole Lotta Bugs Marketplace.
- Services means the use of the Whole Lotta Bugs Marketplace during the Term.
- Term means the date you accept these Terms until the date the Agreement is terminated in accordance with these Terms.
- User means any person including but not limited to a Contributing Photographer and/or Affiliate who uses our Services.
- User Content means any content which is uploaded to or made visible in the Whole Lotta Bugs Marketplace including but not limited to literary works, artworks, images, slogans, background images, descriptions, animations, videos, audio files, fonts, logos, illustrations, compositions, interfaces, tags, URLs, names, business trade names, trademarks and logos.
- User Information means information Whole Lotta Bugs requires from you to enable you to use the Services.
Intellectual Property, Content Rights, and Request For Removal
All Intellectual Property Rights relating to the User Information, User Content, and Designs whether registered or unregistered, made available by you to Whole Lotta Bugs shall remain your sole and exclusive property.
When providing your Intellectual Property and User Content to Whole Lotta Bugs, you grant Whole Lotta Bugs a perpetual, worldwide, non-exclusive, transferable and sub-licensable right and license to copy, reproduce, modify, display, translate, transfer, implement, exploit, sell, distribute, communicate to the public and otherwise use such User Content and Designs (in whole or in part and including associated information such as tags) as needed by Whole Lotta Bugs to: (a) perform the Services (including but not limited to selling Products), and (b) conduct any promotional activity or adverts, on social media or public displays to promote the Whole Lotta Bugs Marketplace, our Products and / or Whole Lotta Bugs in general.
A Request For Removal is utilized if a User no longer desires to grant some or all of their previously granted Intellectual Property and User Content to the Whole Lotta Bugs Marketplace, our Products and / or Whole Lotta Bugs in general. You have the right at any time to initiate a Request For Removal of some or all of your Intellectual Property and User Content from the Whole Lotta Bugs Marketplace, our Products, and / or Whole Lotta Bugs in general.
Whole Lotta Bugs has the right to not remove any prior content or posts, including but not limited to blog posts and social media posts which mention or feature the Intellectual Property and User Content that is subject to an applicable Request For Removal if the content and posts were present online or publicly displayed before the date of an applicable Request For Removal.
To begin the process of a Request For Removal, Users need to send a written request to email@example.com. Once your request is received, we will determine the validity of your request (e.g., you are requesting the removal of your Intellectual Property and User Content, and not that of another User). Upon approval, you will receive an email stating the approval verification of your Request For Removal and we will begin the process of removing the applicable Intellectual Property and User Content from the Whole Lotta Bugs Marketplace, our Products, and / or Whole Lotta Bugs in general. In most cases, the process of removing the applicable Intellectual Property and User Content will be completed within three business days, but in some cases it may take longer. Whole Lotta Bugs has the right to take up to fourteen business days from the timestamp on the approval verification email response to a Request For Removal in order to completely remove the approved Intellectual Property and User Content that was clearly stated in the applicable Request For Removal.
Whole Lotta Bugs maintains the rights originally granted to them by the User to sell all of the Products manufactured with the Intellectual Property and User Content that is subject to a Request For Removal until all of the requested Intellectual Property and User Content is removed from the Marketplace, or until fourteen business days have completed since the timestamp of the approval verification email for an applicable Request For Removal. All formerly performed Services, (including but not limited to selling Products), promotional activity or adverts, on social media or public displays remain protected by the rights originally granted by the User to Whole Lotta Bugs prior to a Request For Removal, as defined by this Operating Agreement.
An approved Request For Removal restricts Whole Lotta Bugs from using the Intellectual Property and User Content that is subject to an applicable Request For Removal in any future ways including but not limited to: (a) performing the Services (including but not limited to selling Products), and (b) conducting any promotional activity or adverts, on social media or public displays to promote the Whole Lotta Bugs Marketplace, our Products, and / or Whole Lotta Bugs in general.
Developments, as defined previously in this Operating Agreement shall be the sole and exclusive property of Whole Lotta Bugs and you hereby assign to Whole Lotta Bugs, with full title guarantee by way of present assignment of future rights and free from all third party rights, all such Intellectual Property Rights contained in any Developments and explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Developments.
In providing Developments, you will not use a false e-mail address, pretend to be someone other than yourself or otherwise attempt to mislead Whole Lotta Bugs or third parties as to the origin of any Development. You warrant that such information is accurate, complete, and does not infringe on any third party rights. Whole Lotta Bugs may, but shall not be obligated to, remove or edit any Developments (including comments or reviews) for any reason.
This Agreement shall commence on the date of our approval of your Contributing Photographer and Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Contributing Photographer and Affiliate Program at any time by removing all Links from your Media and deleting all copies of the Links. We may terminate your participation in the Contributing Photographer and Affiliate Program or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in the Contributing Photographer and Affiliate Program or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Whole Lotta Bugs intellectual property, and will cease representing yourself as a Whole Lotta Bugs Contributing Photographer and/or Affiliate. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to use under this Agreement, we reserve the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) we determine that you have violated this Agreement, (ii) we receive any complaints about your participation in the Affiliate Program which we reasonably believe to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such commissions were earned as a result of such breach. In the event of a material breach of this Agreement, we reserve the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
10. Anti-Spam Policy
You must strictly comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended (the “Act”) and any and all Federal Trade Commission implementing regulations. All emails sent in connection with the Contributing Photographer and Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing Links or referencing the Contributing Photographer and Affiliate Program – that you submit the final version of your email to us for approval by sending it to firstname.lastname@example.org. Upon receiving written approval from us of your email, the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon our approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon our approval. Your violation of the Anti-Spam Policy shall be grounds for immediate termination of this Agreement.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Contributing Photographer and/or Affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Contributing Photographer and Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. We shall make all determinations about fraudulent activity in our sole discretion.
12. Representations & Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, we represent and warrant that we shall not knowingly violate any law, rule or regulation which is applicable to our business operations, proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty within such ten (10) business day period. Your continued participation in this Contributing Photographer and Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, we may change, suspend or discontinue any aspect of a Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. You agree to promptly implement any request from us to remove, alter or modify any Link, graphic or banner ad that you are using as part of the Contributing Photographer and Affiliate Program.
Contributing Photographer and/or Affiliate hereby agrees to indemnify, defend and hold harmless Whole Lotta Bugs and its subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Contributing Photographer and/or Affiliate herein, (ii) any misuse by Contributing Photographer and/or Affiliate, or by a party under the reasonable control of Contributing Photographer and/or Affiliate or obtaining access through Contributing Photographer and/or Affiliate, of the Links or Whole Lotta Bugs intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
Whole Lotta Bugs hereby agrees to indemnify, defend and hold harmless Contributing Photographer and/or Affiliate and its subsidiaries, affiliates, partners and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that Whole Lotta Bugs is not authorized to provide you with the Links.
THE CONTRIBUTING PHOTOGRAPHER AND AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO CONTRIBUTING PHOTOGRAPHER AND/OR AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WHOLE LOTTA BUGS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WHOLE LOTTA BUGS DOES NOT WARRANT THAT THE CONTRIBUTING PHOTOGRAPHER AND AFFILIATE PROGRAM OR LINKS WILL MEET CONTRIBUTING PHOTOGRAPHER AND/OR AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE CONTRIBUTING PHOTOGRAPHER AND AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. WHOLE LOTTA BUGS DOES NOT GUARANTEE THAT CONTRIBUTING PHOTOGRAPHER AND/OR AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
16. Limitation of Liability
IN NO EVENT SHALL WHOLE LOTTA BUGS BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEBSITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF WHOLE LOTTA BUGS. IN NO EVENT SHALL WHOLE LOTTA BUGS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY, WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WHOLE LOTTA BUGS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WHOLE LOTTA BUGS' CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY WHOLE LOTTA BUGS IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
17. Attorneys’ Fees
Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by Whole Lotta Bugs to enforce the terms of this Agreement.
Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
19. Entire Agreement
This Agreement contains the entire agreement between Whole Lotta Bugs and Contributing Photographer and/or Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Contributing Photographer and/or Affiliate agrees that Whole Lotta Bugs shall not be subject to or bound by any Contributing Photographer and/or Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Whole Lotta Bugs “clicks through” or otherwise indicates its acceptance thereof.
If any provision of this Agreement is found to be invalid or unenforceable by a court of law of competent jurisdiction, such a finding shall not affect the other provisions of this Agreement. All provisions of this Agreement unaffected by such a finding shall remain in full force and effect.
Any failure or delay by either party to exercise or enforce any right conferred by this Agreement, or any other course of dealing, shall not be deemed to be a waiver of such right.
You may not assign or transfer any rights, duties, or obligations under this Agreement to a third party without our prior written consent and any attempt to assign without such written consent will be void. We can assign or transfer any and all of our rights, duties, or obligations under this Agreement.
This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
24. Applicable Law
This Agreement shall be governed by the laws of the state of Iowa, without regard to conflict of law principles.