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This Affiliate Agreement (“Agreement”) contains the complete terms and conditions between us, Xpirient (“Xpirient”) and you, regarding your application to and participation in, the Xpirient Affiliate Program (the “Affiliate Program”) as an affiliate of Xpirient (an “Affiliate”), and the establishment of links from your website to our website, https://www.Xpirient.com.

PLEASE READ THE ENTIRE AGREEMENT.

YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND TRAVALIGHT LLC. (DBA XPIRIENT)

BY SUBMITTING THE ONLINE APPLICATION 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.

  1. Overview

This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Xpirient’s Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and the Xpirient web site. Please note that throughout this Agreement, “we,” “us,” and “our” refer to Xpirient, and “you,” “your,” and “yours” refer to the affiliate.

  1. Affiliate Obligations
    1. To begin the enrollment process, you will complete and submit the online application at Xpirient.com. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
      1. Promotes sexually explicit materials
      2. Promotes violence
      3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
      4. Promotes illegal activities
      5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
      6. Includes “Xpirient” or variations or misspellings thereof in its domain name
      7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
      8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
      9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Xpirient or any other affiliated business.
    2. As a member of Xpirient’s Affiliate Program, you will have access to the Affiliate Dashboard. Here you will be able to review our Program’s details and previously-published affiliate newsletters, download HTML code (that provides for links to web pages within the Xpirient web site) and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate links we provide you with.
    3. Xpirient reserves the right, at any time, to review your placement and approve the use of Your Links and require that you change the placement or use to comply with the guidelines provided to you.
    4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
    5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. 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 (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
  2. Xpirient Rights and Obligations
    1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Xpirient Affiliate Program.
    2. Xpirient reserves the right to terminate this Agreement and your participation in the Xpirient Affiliate Program immediately and without notice to you should you commit fraud in your use of the Xpirient Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Xpirient shall not be liable to you for any commissions for such fraudulent sales.
    3. This Agreement will begin upon our acceptance of your Affiliate application and will continue unless terminated hereunder.
  3. Termination

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 or email. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.

  1. Modification

We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include but are not limited to, changes in the payment procedures and Xpirient’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Xpirient’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.

  1. Commissions
    1. Xpirient pays affiliate commissions once a month using PayPal. In order to receive commissions, you must have a valid PayPal account.
    2. Commissions will be calculated based on the commission rates stated on the Xpirient website for each Qualified Purchase (as defined herein) subject to commission accruing pursuant to Section 7 below. A “Qualified Purchase” does NOT include the following:
      1. A purchase by a Referred Customer that has transferred from any Xpirient partners or subsidiaries.
      2. A purchase by a Referred Customer who is also associated with any Xpirient reseller, referral, or another program.
      3. A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or another program.
      4. A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
      5. A purchase by a Referred Customer that has not been in good standing for a period of at least thirty (30) days or is in violation of Xpirient’s Terms of Service, Acceptable Use Policy, or other applicable policies at the time the Commission Fees accrue.
      6. A purchase that Xpirient suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
      7. A purchase referred by an Affiliate that has an excessive cancellation rate as determined in Xpirient’s sole discretion.
      8. A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate.
      9. A purchase by a Referred Customer if the Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by us in our sole discretion.
      10. A purchase by a Referred Customer who received a popup with a discounted offer, while leaving Xpirient’s website during their purchase.
      11. A purchase by a Referred Customer engaging in “Domain Speculation,” which is determined by the identification of two (2) web hosting accounts with the same Referred Customer’s name, email address, or other identifying characteristic as determined by Xpirient and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by Xpirient, in our sole discretion.
    3. Xpirient reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by Xpirient in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
    4. Xpirient reserves the right to suspend the payment of Commission Fees at any time and indefinitely if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. Xpirient reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and canceled purchases.
    5. Xpirient reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees; Xpirient is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been canceled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact Xpirient to request that the Commission Fee be paid. Any changes to decisions about canceled or withheld Commission Fees are strictly made in Xpirient’s sole discretion.
    6. Commissions for any Referred Customer who is associated with any Xpirient reseller, referral or other programs may not be considered a Qualified Purchase. In other words, you may not receive double commissions or compensation.
    7. In the event that the Referred Customers that are referred to Xpirient by an Affiliate are determined to have an excessive cancellation rate, as determined by Xpirient in its sole discretion, Xpirient reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
    8. Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud Xpirient or any violation of the terms of this Agreement constitutes immediate grounds for Xpirient to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
  2. Accrual of Commissions

Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation pursuant to Section 8 below and (ii) reach the Commission Threshold of $50 based on the commission rates stated on the Xpirient website, solely as applied to Qualified Purchases which occurred within ninety (90) days of the end of the calendar month in which the first of such Qualified Purchases occurred. For example, if you provide sign-ups which result in one Qualified Purchase on January 1st and a second sign-up which leads to a Qualified Purchase on August 10th, and you provide all necessary tax documentation on August 10th, no commission would accrue because the second Qualified Purchase occurred more than one hundred and eighty (180) days after the end of January when the first Qualified Purchase occurred. However, if you subsequently provide a sign up which leads to another Qualified Purchase on September 5th of the same year, then commissions would accrue on the latter two Qualified Purchases (i.e., the Qualified Purchases from August and September of the same year). All Qualified Purchases still eligible to result in commissions under this Section 8 must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual of a commission. Once a commission has accrued under this Section 8, the amount of such commission (the “Commission Fee”) shall be due and payable to you under the terms of Section 8. Xpirient reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.

  1. Commission Payments
    1. Subject to the terms of this Agreement and the accrual of commissions as set forth in Section 7 above, commissions will be calculated according to the specified percentage or dollar amount set forth in the commission report in your Affiliate Console for each Qualified Purchase that accrues during the period for which such commission fee is being calculated.
    2. Commission Fees will be processed approximately fifteen (15) to thirty (30) days after the end of the month or other period in which they accrue. Xpirient will only compensate you for Qualified Purchases made in accordance with this Agreement.
    3. Commission Fees shall be paid based on the current information in your Affiliate profile. You are required to notify us promptly of any change in your address by updating your profile information in the Affiliate console.
    4. Xpirient pays commissions through PayPal subject to the following conditions:
      1. PayPal Payments: Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside. (PayPal payments will only be reissued within one hundred and twenty (120) days of the original issue date in the case of an incorrect PayPal address or refusal from PayPal to accept a payment.)
      2. Xpirient is not responsible for paying any third-party fees charged by PayPal in order for you to receive Affiliate Commission Fees.
    5. Xpirient, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
    6. Disputes: Affiliate has access to Xpirient’s real-time Affiliate Program statistics and agrees to file any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by Xpirient and Affiliate forfeits forever any rights to a potential claim.
    7. It is solely your responsibility to provide Xpirient with accurate tax and payment information that is necessary to issue a Commission Fee to you. If Xpirient does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.
    8. Each Affiliate is required to submit a W8/W9 tax form before any Commission Fees shall accrue. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, Xpirient will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
    9. Any address change must be made in the Affiliate profile in the affiliate console at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed
  2. Reports of Qualified Purchases

You may log into your affiliate console to review your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued for all Referred Customers that appear in the affiliate console.

  1. Promotion Restrictions
    1. You are free to promote your own websites, but naturally, any promotion that mentions Xpirient could be perceived by the public or the press as a joint effort. Certain forms of advertising are always prohibited by Xpirient. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Xpirient so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Xpirient so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from Xpirient. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Xpirient Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
    2. Use of Links. If you qualify and agree to participate as an Affiliate, we will make a variety of graphic and textual links available to you (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify your website as a member of the Affiliate Program and will establish a link from your website or e-mail to Xpirient’s website. You agree to cooperate fully with us in order to establish and maintain such Links. You further agree that your use of the Links must be in compliance with this Agreement at all times. Xpirient may modify the Links from time to time in its sole discretion. You will not use graphic or textual images (indicating a Link) or text messages to promote Xpirient that are not approved in advance by Xpirient. All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge (e.g. iframe). Any information with respect to Xpirient that is going to be displayed on the Affiliate Site must be preapproved by Xpirient in writing.
    3. Disclaimer. EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE Xpirient TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “Xpirient IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT Xpirient’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE Xpirient IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF Xpirient IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF Xpirient IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF Xpirient’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY Xpirient’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH Xpirient SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF Xpirient’S INTELLECTUAL PROPERTY RIGHTS.
    4. Discounts and Coupons. You are not allowed to post any refunds, credits or discounts on the Xpirient Products and Services, or other content concerning Xpirient without Xpirient’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the Xpirient website will in no way alter the look, feel, or functionality of the Xpirient website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees.
    5. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Xpirient’s site (i.e., no page from our site or any Xpirient’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Xpirient site in IFrames, hidden links and automatic pop ups that open Xpirient’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
  2. Grant of Licenses
    1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Xpirient’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Xpirient and the good will associated therewith will inure to the sole benefit of Xpirient.
    2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene 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. 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.
  3. Disclaimer

Xpirient MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING Xpirient SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF Xpirient ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

  1. Representations and Warranties
    1. You represent and warrant that:
      1. 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;
      2. 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;
      3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
  2. 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL Xpirient’S 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 COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.

  1. Indemnification

You hereby agree to indemnify and hold harmless Xpirient, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, consultants, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.

  1. Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

  1. Miscellaneous
    1. Governing Law. The laws of the State of Texas will govern this Agreement, without reference to rules governing the choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Collin County, Texas and you irrevocably consent to the jurisdiction of such courts.
    2. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns
    3. Waiver. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
    4. 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.