Terms & Conditions
Terms of Order
Orders will not be cancelled for change of mind once orders have been placed. --- The use of this site is governed by the policies, terms and conditions set forth below. Please read them carefully. By using this Website, you agree to be bound by the terms of use outlined above and below and also to the provisions of our Privacy Policy. We reserve the right at any time to change or add to this Website, including these terms of use. Order Acceptance Policy Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. Upon cancellation of an order we will make all reasonable attempts to contact you using the details provided. All received monies will be refunded using the method received. Liability We, including our directors, partners, shareholders, employees and other third parties associated with running this Website is not liable to the maximum extent permitted by law to you or anyone else for any loss of income, profit, contracts, goodwill or financial loss or damage without limitation suffered as a result of negligence or otherwise arising in connection with use of this Website or the products sold on it.
Affiliate Terms and Conditions & Agreement
This Affiliate Partner Agreement is between the affiliate (or “You”) and Arabella and Rose (Arabella and Rose). BY CLICKING ON THE ACCEPT BUTTON, YOU AGREE TO THE TERMS OF THIS AGREEMENT. Any use of the Arabella and Rose Affiliate Program is subject to the terms of this Agreement and the Affiliate Program Policies. Defined terms shall have the meaning set forth here. 1. MEMBERSHIP REQUIREMENTS 1.1 Membership. To participate as an Affiliate with Arabella and Rose, You must: a. be either a legal entity or an individual 18 years or older; and b. Your activity on the Affiliate Program must comply at all times with applicable federal, state, local and foreign laws, ordinances, rules, regulations, and Affiliate Program Policies, including applicable Data Protection Laws. 1.2 Membership Restrictions. a. Business Use Only. THE Affiliate Program ARE MADE AVAILABLE TO YOU FOR THE SOLE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS AS PERMITTED UNDER THIS AGREEMENT. YOU MAY ONLY USE THE Affiliate Program AND Affiliate Program PLATFORM TO CONDUCT BUSINESS ACTIVITY AND NOT AS A CONSUMER. b. Not a Provider of Goods and Services. Your participation on the Affiliate Program , use of the Affiliate Program Platform, and receipt of payments as a Publisher Partner of the Affiliate Program is not an inducement for, or solicitation of You to provide any products or services to Arabella and Rose. You are not and will not be deemed to be a vendor, Arabella and Rose or provider of goods or services to Arabella and Rose. c. Prohibited Activities. As a Publisher Partner on the Affiliate Program , You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Your participation in the Affiliate Program , or any program offered through the Affiliate Program or use of any functions on the Affiliate Program Platform. 2. ARABELLA AND ROSE AFFILIATE BENEFITS As a Publisher Partner, You will receive access to the Affiliate Program , the Affiliate Program Platform (including Arabella and Rose Tools and reports offered through the Affiliate Program Platform), and You will be eligible to enter into Engagements with Arabella and Rose for the purpose of promoting Arabella and Rose products and services as part of the Affiliate Program . 2.1 Engagements. Any Engagement that You enter into with Arabella and Rose is subject to the terms and conditions set forth by Arabella and Rose. 2.2 Arabella and Rose Tools. Arabella and Rose will provide You with certain tools, including Qualifying Links, that will measure Your performance on the Affiliate Program . You agree to implement, operate, maintain and update the Arabella and Rose Tools in accordance with Arabella and Rose’s instruction. Failure to do so may negatively impact Tracked Activities and/or commissions. You may not create Your own Qualifying Links without the express written authorisation of Arabella and Rose a. Valid Referrals Only. You may not, nor knowingly permit any person to, use Arabella and Rose Tools to inflate the amount of any Tracked Activities. b. No Spam. You may not use any Qualifying Links in any electronic message without the express written authorisation of Arabella and Rose. If so permitted, Your electronic messages: (i) must comply in all respects with this Agreement, the Arabella and Rose terms and conditions, and any applicable laws regarding the delivery of unsolicited electronic communications, also known as SPAM; and (ii) must not identify Arabella and Rose as a sender or sponsor of such electronic message without the express written authorisation of Arabella and Rose. c. Distribution of Qualifying Links. If You distribute Qualifying Links on sites other than those controlled You, You agree: (i) that, upon written request of Arabella and Rose, You will provide Arabella and Rose with a list of sites where Qualifying Links have been distributed, (ii) to provide prompt and reasonable cooperation to Arabella and Rose in responding to any issues regarding the distribution of Qualifying Links; and (iii) cease further distribution of such Qualifying Links if so required by Arabella and Rose. Arabella and Rose reserves the right to prohibit You from distributing Qualifying Links to and from displaying Qualifying Links on third party sites. d. Termination of Qualifying Links. Arabella and Rose may terminate the Qualifying Links associated with an Engagement at any time. If such links are terminated, You must promptly remove such Qualifying Links upon written notice from Arabella and Rose. Should You fail to promptly terminate such links, Arabella and Rose may redirect such links in its sole discretion without compensation to You. 2.3 Reports. As a Publisher Partner, You will have access to features of the Affiliate Program and Affiliate Program Platform, including reports on Tracked Activities and commissions. To prepare such reports, Arabella and Rose relies on data provided or made available. Arabella and Rose is not obligated to confirm, and does not warrant or guarantee the accuracy or completeness of any data provided by Arabella and Rose. a. Errors. If You believe that Your reports contain an error, You must notify Arabella and Rose directly in the case of a Direct Engagement, of such error within ten (10) days after the end after the completion of the monthly service period (or within such period otherwise agreed to by You as part of an Engagement), or the report will be deemed accepted by You. b. Adjustments. Arabella and Rose reserves the right to revise any report at any time if, in Arabella and Rose determination, such report contains an error or otherwise requires adjustment. Any such revision may affect the amount of commissions correlating to the Tracked Activities. c. Notice of Errors. Arabella and Rose will notify You of reporting errors using the contact information that You provided in the Affiliate Program Platform. You will have ten (10) days after the posting of such correction or adjustment (or within such period otherwise agreed to by You as part of an Engagement) to notify Arabella and Rose of errors in a corrected or adjusted report. d. Resolution of Discrepancies. Any dispute between You and Arabella and Rose regarding errors reported by You must be resolved by You directly with Arabella and Rose. In the event of discrepancies arising out of different measurement sources (including Your or a third party’s measurements), Arabella and Rose’s reports will control, including with respect to the commissions due to You. e. Modification to Scope of Reports. Arabella and Rose may change the scope of the historical data stored in the Arabella and Rose Tools and/or provided to You in its sole discretion. You are responsible for backing up any reports or data provided to You and taking other precautions to avoid data losses. 3. PAYMENTS; FEES 3.1 Arabella and Rose Responsibility. Except for Direct Engagements, Arabella and Rose is solely responsible for payments to You in accordance with the terms of the applicable Engagement. 3.2 Arabella and Rose Responsibility. Arabella and Rose may assume responsibility for transmitting payments or managing adjustments in payments to You, only after receiving appropriate instructions or authorisation to do so. For Direct Engagements, Arabella and Rose is responsible for payments to You in accordance with the terms of the applicable Engagement. 3.3 Disputes. If a dispute arises between You and Arabella and Rose regarding the amounts due, Arabella and Rose will be entitled to hold or decline to offer further services until such dispute is resolved, once dispute has resolved, payments should resume. You agree that Arabella and Rose has no obligation and incurs no liabilities to You in connection with any such dispute. 3.4 Inactivity. If Your account is inactive for more than twelve (12) consecutive months, If the balance in Your inactive account is or becomes zero, Arabella and Rose reserves the right to close the account permanently and cease to maintain Your account records and Publisher program access. 3.5 Right to Assess Fees; Right to Offset. Unless otherwise designated in writing, the Affiliate Program and access to the Affiliate Program Platform are provided to Publisher Partners free of charge. Arabella and Rose may, at any time upon prior written notice to You, charge fees in relation to any service provided as part of the Affiliate Program or Affiliate Program Platform, including Your participation on the Affiliate Program . In such an event, You may elect not to pay any such fees by discontinuing Your participation in the Affiliate Program prior to the commencement of such fees. Arabella and Rose may withhold and offset any fees or other charges owing to it against any amounts remitted to You through Arabella and Rose. 3.6 Taxes. You are responsible for determining the applicability of certain tax laws depending on the location of your operations, the scope of your activity, and other applicable criteria. You agree to comply with all applicable tax laws, and You agree that You are solely responsible for any tax obligations, including reporting, arising from or in connection with any compensation earned by You as a result of Your participation in the Affiliate Program or an Engagement. You agree that Arabella and Rose is authorised, on a limited basis, to invoice and collect in Your name and on Your behalf, the compensation due to You pursuant to this Agreement or Engagements. You will cooperate with Arabella and Rose and provide the necessary financial and tax information, including Value Added Tax (VAT) and company registration numbers and the like, to facilitate this invoicing and collection activity. You acknowledge that You have access to copies of all invoices issued by Arabella and Rose in Your name and on Your behalf. You may raise any objections to the content of the invoices issued in Your name and on Your behalf with Arabella and Rose within ten (10) days after the date of issue of the invoice. You acknowledge and agree that You retain full responsibility for: (a) fulfilling Your obligations with respect to VAT, if applicable; (b) paying the VAT, if applicable, on the commissions collected and paid to You by Arabella and Rose on Your behalf; (c) immediately reviewing all invoices and requesting copies of any reports or invoices not received from Arabella and Rose; (d) advising Arabella and Rose of any changes to Your company’s tax identification information; and (e) otherwise complying with all applicable tax laws, rules and regulations. 3.7 Exchange Rate Risk. To process payments on its behalf, You may be permitted, at Arabella and Rose’s sole discretion, to elect to receive payment in a currency other than the default currency. In such case You will bear all risk of any fluctuations in the applicable currency exchange rate. 4. LICENSE 4.1 License to You. Subject to the terms of this Agreement, Arabella and Rose grants You a personal, non- exclusive, non-transferable, non-sublicensable, revocable and limited license to do the following solely for the Permitted Purpose: (a) use information from or about the Affiliate Program for the Permitted Purpose, (b) access the Affiliate Program Platform including reports made available to You by Arabella and Rose; and (d) use without modification any Arabella and Rose Tools (including Qualifying Links) provided by Arabella and Rose. a. Limitations. Except as provided in this Section 4, all other uses of the Affiliate Program , the Affiliate Program Platform, the Arabella and Rose Tools, or other intellectual property made available to You by Arabella and Rose is prohibited. You may not circumvent, reverse engineer, disassemble, decompile or attempt to derive source code for, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology made available by Arabella and Rose b. No Sublicense. Unless You are so permitted as a SubAffiliate Program , You may not: (i) sublicense, rent, lease, sell, resell, or outsource any Arabella and Rose Tools; or (ii) use any Arabella and Rose Tools in connection with aggregating, soliciting or recruiting Advertisers, other publishers, other sites or other persons to form or join a marketing, advertising or similar Affiliate Program . Any attempt to do the above will be null and void. c. Use of the Arabella and Rose Name. This Agreement does not grant to You any license or right to use Arabella and Rose’s name or any of its logos or trade or service names or marks except to the extent any trade or service name is part of any code made available to You as part of a Qualifying Link. Any public announcement by You regarding this Agreement or the Affiliate Program or that otherwise refers to Arabella and Rose will require the prior written approval of Arabella and Rose. You agree not to disparage Arabella and Rose, the Affiliate Program or any participants on the Affiliate Program . d. Duration. The license set forth in this section applies only while You remain a Publisher Partner on the Affiliate Program and are in full compliance with this Agreement. Arabella and Rose may revoke this license at any time by giving You written notice. 4.2 License to Arabella and Rose. You grant Arabella and Rose a non-exclusive, worldwide, royalty-free, sublicensable, license to: (a) use and store any business name, contact information, data or Content You upload, deliver or otherwise make available to Arabella and Rose in order to perform services related to the Affiliate Program ; and (b) to reference Your participation in the Affiliate Program as part of performing services related to the Affiliate Program and Affiliate Program Platform. Any uses of Your logos or other trademarks will be made in accordance with Your specified usage guidelines. 4.3 Data Ownership. As between You and Arabella and Rose, You own all data provided by You or that You independently collect through Your sites without use of the Affiliate Program , the Affiliate Program Platform, or Arabella and Rose Tools, subject to the licenses granted under this Agreement; and Arabella and Rose owns all Platform Data. 4.4 SubAffiliate Program s. Notwithstanding anything to the contrary in this Section 4, if You are a SubAffiliate Program , Arabella and Rose hereby grants You a license, on terms equivalent to Section 4.1, to further sublicense to Subpublishers for the Permitted Purpose, subject to Arabella and Rose’s prior written consent and the following restrictions: a. In exchange for this right to sublicense, You agree to provide information regarding, as requested by Arabella and Rose, to the extent necessary to provide the services related to the Affiliate Program and the Affiliate Program Platform. b. Arabella and Rose agrees that it will not use Subpublisher information to solicit such Subpublishers to become Publisher Partners; provided, however, it will not be a violation for Arabella and Rose to (i) to engage in general solicitations of publishers as long as not directed at SubAffiliate Program s’ Subpublishers; and (ii) permit a Subpublisher to sign up as a Publisher Partner in response to such a general solicitation. c. You will remain liable for all acts or omissions of any Subpublisher. 5. CONFIDENTIAL INFORMATION 5.1 Non-Disclosure. Each party (“Receiving Party”) will keep the other party’s (“Disclosing Party”) Confidential Information secure using at least the same degree of care that it uses to protect its own Confidential Information, but no less than reasonable care, and will not disclose or use such other party's Confidential Information except to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement. Further, the Receiving Party may disclose the Disclosing Party's Confidential Information only to those of its employees, officers and directors, third-party consultants, and advisers, and the employees and officers of its Affiliates (collectively referred to as “Representatives”) with a legitimate need to know such information in order to perform their respective duties; provided that (a) each such person has a legal or contractual obligation to maintain the confidentiality of such information, and (b) in the case of Representatives, no such Representative is a competitor of, or affiliate of a competitor of, the Disclosing Party. You are responsible for the use and storage of the password and ID issued by Arabella and Rose to access the Arabella and Rose Tools and will immediately notify Arabella and Rose in writing of any loss or involuntary disclosure thereof. Arabella and Rose reserves the right to change the password and ID issued to You in the event of a suspected breach of this Agreement or compromise of the security of Your account. 5.2 Exceptions. The term "Confidential Information" will not include information that (a) is or becomes publicly available without breach of this Agreement, (b) the Receiving Party obtains from a source other than the Disclosing Party, provided that the disclosure to the Receiving Party by such source is not known to the Receiving Party to be a violation of a confidentiality obligation of such source to the Disclosing Party, and (c) the Receiving Party knew prior to receiving such information from the Disclosing Party or develops independently without use of the disclosing party’s trade secrets or confidential information, as shown by contemporaneous records. The confidentiality restrictions in this Agreement will not apply to disclosure by the Receiving Party of the Disclosing Party's Confidential Information to the extent required by law or court order, provided that the Receiving Party uses reasonable efforts to give the Disclosing Party prompt written notice of such requirement, in advance if possible, in order to give the Disclosing Party an opportunity to lawfully prevent or limit the scope of such disclosure. 6. PRIVACY; DATA PROTECTION The provisions below are not intended as legal advice; You are responsible for determining what laws, including data privacy laws, to which You and Your business are subject. 6.1 Privacy Policy. To the extent required by applicable Data Protection Laws, You agree to maintain, on all Sites used by You in connection with Your participation in the Affiliate Program , a privacy policy that meets the following criteria: (a) is accessible conspicuously from such Site’s home page, with a link that contains the word “Privacy”, “Legal”, “Terms” or similar language; (b) provide necessary disclosures related to: (i) the use of tracking devices, including cookies and tracking devices enabled by Arabella and Rose at Your request on Your behalf; (ii) descriptions of data collection for Interest-Based Advertising (as defined below), and (iii) information about the how a user can exercise choices (including opt-out) available to visitors to Your sites, in or around Qualifying Links and other advertising content. “Interest-Based Advertising” means each of (x) the collection of data across multiple digital properties or other sources for the purpose(s) of profiling and delivering advertising based on preferences or interests known or inferred from the data collected and (y) the collection of data about a user’s activity on or in one digital property or source for the purpose(s) of profiling and delivering advertising based on that data on a different digital property. 6.2 Compliance with Additional Data Provisions. Depending on the location of Your business and the traffic through Your Sites, You further agree to the data protection provisions set forth in Schedule I. If You fail to comply with the requirements of this section, Arabella and Rose reserves the right to suspend payments that it reasonably believes is related to non-compliant activity, or to suspend or terminate Your account pursuant to the Agreement. If you determine that certain Data Protection Laws do not apply to you, then you agree to provide Arabella and Rose with your analysis concluding the same or, provide detailed information regarding the specific steps you take to ensure that individuals located in the applicable jurisdiction, or to otherwise ensure that individuals located in a particular regulated jurisdiction do not visit Your Site using the Affiliate Program or Arabella and Rose Tools. 7. REPRESENTATIONS AND WARRANTIES 7.1 By both parties. Each party hereby represents, warrants, and agrees: (a) it is duly organized, validly existing, and has full authority to enter into this Agreement; (b) it has the full authority to perform its duties under this Agreement; (c) it will comply with all laws, rules and regulations applicable to the operation of its business and to its performance under this Agreement; and (d) performance under this Agreement does not conflict with any other duty to any other party under which it is bound, including proprietary and privacy rights. 7.2 By Publisher Partner. You further represent, warrant, and agree that the information You provided as part of the registration process or otherwise, is and will be truthful, accurate and complete. 7.3 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY OUTLINED ABOVE, Arabella and Rose (INCLUDING ITS CONTRACTORS AND Arabella and RoseS) PROVIDE THE Affiliate Program , THE Affiliate Program PLATFORM, THE TOOLS, AND THE SERVICES ASSOCIATED WITH THE Affiliate Program ON AN “AS-IS’ BASIS. Arabella and Rose HEREBY DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING REPRESENTATIONS, GUARANTEES OR WARRANTIES AS TO ACCURACY, ADVERTISERABILITY, NON-INFRINGEMENT, COMPLETENESS, CURRENTNESS, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. Arabella and Rose DOES NOT WARRANT THAT YOUR USE OF THE Affiliate Program , THE Affiliate Program PLATFORM, OR Arabella and Rose TOOLS WILL RESULT IN ANY PARTICULAR LEVEL OF INCOME OR BUSINESS TO YOU, OR THAT ANY QUALIFYING LINKS OR ENGAGEMENTS WILL BE AVAILABLE TO YOU. 8. LIMITATIONS OF LIABILITY 8.1 LIMITATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF Arabella and Rose FOR ANY CLAIMS MADE UNDER THIS AGREEMENT WILL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE AVERAGE OF COMMISSION FEES PAYABLE TO YOU BY ARABELLA AND ROSE DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY SUCH CLAIM, AND (B) USD $1,000 OR THE EQUIVALENT IN THE APPLICABLE CURRENCY UNIT. YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT Arabella and Rose IS PROVIDING THIS SERVICE AT NO CHARGE TO YOU. 8.2 NO CONSEQUENTIAL DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH ENTITY WAS AWARE THAT SUCH DAMAGES COULD RESULT. THE FOREGOING WILL NOT LIMIT RECOVERY FOR (A) THIRD PARTY CLAIMS AGAINST Arabella and Rose ARISING FROM YOUR BREACH OF THIS AGREEMENT, AND (B) YOUR INFRINGEMENT OR MISUSE OF Arabella and Rose’S INTELLECTUAL PROPERTY RIGHTS. 9. INDEMNIFICATION 9.1 Indemnification by You. You agree to indemnify and hold harmless Arabella and Rose for and against any Claims that directly or indirectly arise out of or are based on (a) any breach of Your obligations under this Agreement, including failure to comply with applicable Data Protections Laws, or tax, labor or other applicable laws, (b) any breach by You of an Engagement, (c) Your negligence or willful misconduct, and (d) any actual or alleged infringement by You of any Intellectual Property Rights or other rights of any person. 9.2 Arabella and Rose Indemnification. Arabella and Rose agrees to indemnify and hold You harmless for and against any Claims that directly or indirectly arise out of or are based on (a) any breach of Arabella and Rose’s obligations under this Agreement, and/or (b) any claims that Arabella and Rose owned Intellectual Property Rights licensed to You by Arabella and Rose, when used strictly as permitted under this Agreement, infringe any Intellectual Property Rights or other rights of any person. 9.3 Control of Defense. Arabella and Rose may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification. Arabella and Rose may participate in the defense of all claims as to which it does not assume defense and control, and You will not settle any such claim without Arabella and Rose’s prior written consent. 10. AMENDMENTS; CHANGES IN SERVICES 10.1 Upon at least fourteen (14) days’ prior written notice, Arabella and Rose may, at any time, (a) add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Affiliate Program Policies or (b) add, remove, suspend or discontinue any aspect of the Affiliate Program , the Affiliate Program Platform, and Arabella and Rose Tools. 10.2 YOUR CONTINUED USE OF THE Affiliate Program AND/OR OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD WILL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH AMENDMENT OR CHANGE, AS APPLICABLE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH AMENDMENT OR CHANGE, THEN YOU MUST TERMINATE YOUR ACCOUNT IN THE Affiliate Program AND CEASE USING THE Affiliate Program , THE Affiliate Program PLATFORM, Arabella and Rose TOOLS (INCLUDING QUALIFYING LINKS) AND ANY ASSOCIATED ENGAGEMENT. 11. TERMINATION; SUSPENSION 11.1 Termination. Either party may terminate this Agreement and Your participation in the Affiliate Program at any time by providing written notice to the other party. Your removal of Qualifying Links from Your Site alone does not terminate an Engagement or this Agreement. 11.2 Suspension. Arabella and Rose may suspend, limit, restrict, condition or deny Your access to or use of all or any part of the Affiliate Program , the Affiliate Program Platform, the Arabella and Rose Tools, or any Qualifying Links at any time in its sole discretion. 12. EFFECTS OF TERMINATION 12.1 Termination. Upon any termination of this Agreement and/or Your participation on the Affiliate Program : a. You will immediately cease to use and remove from all Site(s), whether or not controlled by You, all Qualifying Links and other Content or materials provided to You in connection with Your participation in the Affiliate Program or Your use of the Affiliate Program Platform and Arabella and Rose Tools. b. All licenses and rights granted to You under this Agreement will immediately cease and terminate. c. Arabella and Rose may terminate or, in its sole discretion, direct or redirect all Qualifying Links continued to be used by You without Arabella and Rose incurring any further liability or obligation to You. d. All confidential information of Arabella and Rose that is in Your possession or control must be immediately returned or destroyed, at Arabella and Rose’s sole discretion. If requested, You will certify in a writing signed by You or an authorized officer as to the return or destruction of all such confidential or proprietary information. 12.2 Survival. All rights or remedies arising out of a breach of any terms of this Agreement will survive any such termination of this Agreement. Sections 5, 7, 8, 9 and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. 13. SPECIALTLY PUBLISHER PARTNER TERMS If you are a specialty publisher partner, You may be required to enter into an addendum that addresses the Your business model. 14. MISCELLANEOUS 14.1 Independent Contractors. The parties are independent contractors and not partners or joint venturers. This Agreement is governed by applicable civil legislation and nothing in this Agreement will confer upon either party any authority to obligate or bind the other in any respect or cause either party to have a fiduciary or employment relationship with the other. 14.2 Force Majeure. Arabella and Rose will not be liable to You by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, lockouts or other industrial disputes, earthquakes, interruptions in telecommunications services or internet facilities, pandemics or any other cause which is beyond the reasonable control of Arabella and Rose, whether or not similar to the foregoing 14.3 Assignability. You may not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation will be void. This Agreement is binding on and inures to the benefit of the respective permitted successors, heirs and assigns of each party. 14.4 Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, will remain in full force and effect. If any provision of this Agreement will be judicially unenforceable in any jurisdiction, such provision will not be affected with respect to any other jurisdiction. 14.5 UN Convention. This Agreement will not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. 14.6 Governing Law. Except as otherwise provided in Schedule II, this Agreement and any non- contractual rights or obligations arising out of or in connection with it will be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflicts of law principles. 14.7 Arbitration. Except for actions seeking equitable or injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non- contractual obligations arising out of or relating to this Agreement, will be referred to and finally resolved by arbitration as set forth in Schedule III. Notwithstanding the foregoing, either party will be entitled to apply to any court of competent jurisdiction for injunctive relief, without bond, to restrain any actual or threatened conduct in violation of this Agreement or to specifically enforce any party’s obligations under this Agreement. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR Arabella and Rose WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. 14.8 Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the parties pertaining to its subject matter and supersedes all prior written or oral agreements with respect to such subject matter. There are no third-party beneficiaries of this Agreement; and persons who are not a party to this Agreement will have no rights under such laws as the Contracts (Rights of Third Parties) Act of 1999 or similar laws. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement. 14.9 Notices. Arabella and Rose may provide notices to You by posting notices or links to notices in the Affiliate Program Platform or by e-mail, regular mail, overnight courier or facsimile at Your contact addresses of record for the Affiliate Program . Notices to Arabella and Rose must be sent, postage prepaid, by registered or certified mail or by international or domestic overnight courier, to the address specified in Schedule II with a copy to contact@arabellaandrose.com.au 14.10 Language; Interpretation. This Agreement may be translated into different language versions and, except as provided by applicable law, the English language versions of this Agreement and Affiliate Program Policies are the controlling versions thereof and will prevail. PMA Defined Terms “APAC Region” means China, Hong Kong, India, Indonesia, Japan, South Korea, Philippines, Malaysia, Pakistan, Singapore, Taiwan, Thailand or Vietnam “Claim” means all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) "Company Content" means Company's trademarks, trade names, trade dress, internet domain names, websites, logos, keywords (identifying Company), creative, copy and other content to the extent provided by Company to Arabella and Rose in connection with the Services. “Data Protection Laws” means any data protection law or regulation applicable under this Agreement. “EEA” means the European Economic Area as defined by applicable laws “Engagement” means any type of agreement or arrangement between You and Arabella and Rose A “Direct Engagement” refers to those instances in which the Engagement is directly between You and Arabella and Rose, acting on its own behalf. The words “include”, “includes”, and “including” will be deemed to be followed by the phrase “without limitation.” “Intellectual Property Rights” means all patent, trade secret, trademark, copyright, moral rights, database rights, rights of publicity and other intellectual property and proprietary rights, whether or not registered. “Affiliate Program ” means the online affiliate marketing Affiliate Program operated by Arabella and Rose “Affiliate Program Platform” means Arabella and Rose’s platform through which Publisher Partner manage their Engagements. "Affiliate Program Policies” means all Arabella and Rose’s acceptable use policies and other posted policies that apply to its affiliate marketing Affiliate Program as in effect from time to time. The Affiliate Program Policies can be accessed by clicking here. “Permitted Purpose” means participation as a Publisher Partner in the Affiliate Program , including entry into Engagements with Arabella and Rose “Personal Data” means “personally identifiable information,” “personal information,” “personal data” or any equivalent term under applicable Data Protection Laws but is limited to Personal Data processed under the terms of this Agreement. “Publisher Partner” means a legal entity or an individual that participates in the Affiliate Program and, through such participation and use of the Affiliate Program or Affiliate Program Platform, makes itself available to be recruited or to enter into Engagements. “Platform Data” means all data and statistics associated or generated in connection with the Affiliate Program , Affiliate Program Platform, and Arabella and Rose Tools but excluding any data provided directly by You. “Qualifying Link” means a link that is provided or authorised by Arabella and Rose to be displayed, distributed or placed on or by Publisher Partner pursuant to an Engagement and which, through addition and/or use of any technology and/or methodology, can be tracked so that such Arabella and Rose can monitor Tracked Activities achieved by the display, distribution and/or placement of such link. “Site” means a website, application, or other digital property that is accessible to consumers. “SubAffiliate Program ” means the operator of a marketing Affiliate Program of further publishers to facilitate, amongst other things, affiliate and performance marketing, which has entered this Agreement to join the Affiliate Program to market advertisers or their products as a Publisher. “Subpublisher” means the operator of a website, application or service, which has agreed with the SubAffiliate Program to market advertisers or their products An “Affiliate” means an entity that controls, is controlled by or is under common control with Arabella and Rose “Arabella and Rose Tools” means technology, software, reports and databases, account management and other services that may be made available from time to time by Arabella and Rose for use in Engagements, including Arabella and Rose owned Qualifying Links “Tracked Activity” means any type of pre-agreed or predefined activity or result that is sought by Arabella and Rose in relation to a Qualifying Link and specified as eligible for compensation by the respective as part of an Engagement. Examples of the kinds of Tracked Activities that Arabella and Rose may seek may include impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, the printing of a coupon (for offline redemption) or any other kind of action that can be tracked. PMA SCHEDULE I: DATA PROTECTION PROVISIONS Your Location* *United States California Privacy Law. The collection of Personal Data that occurs as part of Your participation in the Affiliate Program will require disclosures regarding the collection, use and sale of end user personal information that are triggered when a user accesses links or advertisements on Your site, and may involve Your sale of Personal Data to Arabella and Rose governed by the California Consumer Privacy Act of 2018 and its implementing regulations, as may be amended from time-to-time (collectively, the “CCPA”). a. You hereby represent, warrant and covenant that You will provide the required notice and opt-out links specified by Arabella and Rose, or as otherwise agreed by You and Arabella and Rose. b. If You operate a SubAffiliate Program , You represent, warrant and covenant that You will require participants in Your subAffiliate Program to provide the required notice and opt-out links specified by Arabella and Rose, or as otherwise agreed by You and Arabella and Rose. c. If You qualify as a business under the CCPA, then You hereby represent, warrant, covenant and agree that (i) You will provide end users disclosures required for the parties to collect, receive, disclose, use and sell Personal Data under the terms of this Agreement in accordance with the CCPA; and (ii) to the extent an end-user properly executes their right under the CCPA to opt-out of the sale of Personal Data about them, You will promptly communicate the opt-out to Arabella and Rose using the specifications identified by Arabella and Rose; (iii) once Arabella and Rose processes any such opt-out, You agree that Arabella and Rose will be a service provider to You with respect to any Personal Data processed about that end user under the terms of this Agreement. As a service provider, Arabella and Rose will not collect, retain, use, sell or otherwise disclose any relevant Personal Data for any purpose other than as required by applicable law or for the specific purpose of performing the services specified in this Agreement, including the processing of Personal Data to improve the advertising services made available to You by Arabella and Rose. If You determine that CCPA does not apply to You, then You will provide Arabella and Rose with Your analysis concluding the same or, provide detailed information regarding the specific steps You take to ensure that individuals residing in California do not visit Your Site via our services and technology. *Brazil Brazilian Privacy Laws. If You operate Your site from Brazil or Your site receives or targets end users located in Brazil, You are subject to the Lei Geral de Proteção de Dados (LGPD – law 13.709/18), (“Brazilian Privacy Law”), which, among other things, establishes rights for end users and creates a series of obligations for the providers of internet applications and connections, principally as a means of guaranteeing freedom of expression and privacy for users and You agree to comply with the Brazilian Privacy Law. You further agree that: a. You will not collect, use or store any information or data about an end user without first obtaining that end users express authorisation in accordance with the Brazilian Privacy Law. b. Any use by You of Qualifying Links as described in this Agreement will comply with the Brazilian Privacy Law. c. You will obtain the express authorisation of end users to collect, use or share that end users’ data, including authorisation to use third parties to collect, use or share such information on Your behalf. d. You obtain consent of end users to place tracking devices, such as cookies (including tracking devices enabled by Arabella and Rose at Your request on Your behalf) on such end users’ computers, including where required, information regarding the option to opt-out or remove cookies/tracking devices to the extent required under the Brazilian Privacy Law. e. You will take additional measures to comply with any provisions of the Brazilian Privacy law limiting the transmission of unsolicited commercial email. *The United Kingdom, EEA and Switzerland EU Privacy Laws. “EU Privacy Laws” means the European Union General Data Protection Regulation (“GDPR”), the European Union Directive on Privacy and Electronic Communications (the ePrivacy directive) and any local implementing laws, including any subsequent legislation replacing or amending any such laws from time to time. For the purpose of this section, “Personal Data”, “Process/Processing”, “Controller”, “Processor”, “Data Subject”, and “Supervisory Authority” have the same meanings given to them in the EU Privacy Laws. a. Role of the Parties. In order to participate in the Affiliate Program and to enter into Engagements, You collect, use and share Personal Data with Arabella and Rose for the Permitted Purposes. You are a Controller of the Personal Data You provide to Arabella and Rose. In addition to the Personal Data You provide to Arabella and Rose, Arabella and Rose also collects and uses Personal Data for the Permitted Purposes. Arabella and Rose is a Controller of the Personal Data that it collects and uses as a separate and independent Controller for the Permitted Purposes. In no event will the Parties process the Personal Data as joint Controllers. b. Obligations. Each party will use the Personal Data in accordance with applicable Data Protection Laws and will individually and separately fulfill all obligations that apply to it as a Controller under the EU Privacy Laws, including: (a) identifying, disclosing and establishing its independent legal basis for processing and disclosing Personal Data; (b) fulfilling transparency requirements regarding its use of and disclosure of Personal Data; (c) implementing appropriate technical and organizational measures to ensure a level of security appropriate to the risk. Notwithstanding the foregoing, Publisher will assure it: (x) obtains the necessary consent from Data Subjects on behalf of Arabella and Rose in order for Arabella and Rose to Process the Personal Data for the Permitted Purposes, (y) shares such consent with Arabella and Rose in a manner that is mutually agreed upon (e.g., IAB Europe’s GDPR Transparency and Consent Framework); and (z) provides Data Subjects with the ability to withdraw such consent, in each case via the technology made available to Publisher by Arabella and Rose or such other consent tool approved by Arabella and Rose. Publisher will take all steps reasonably requested by Arabella and Rose to ensure Arabella and Rose’s compliance with applicable Data Protection Laws. In the event that either Party receives any correspondence, inquiry or complaint from a Data Subject or Supervisory Authority (“Inquiry”) related to the use of Personal Data for the Permitted Purposes or the processing of Personal Data by the other Party, it will promptly inform the other Party and provide full details of the Inquiry. The Parties shall cooperate in good faith to timely respond to the Inquiry in accordance with requirements under the applicable Data Protection Laws. d. SubAffiliate Program Obligations. If You operate a SubAffiliate Program , You represent, warrant and covenant that You will require participants in Your subAffiliate Program to provide the required notice, consent and opt- out links specified by SArabella and Rose, as otherwise agreed by You and Arabella and Rose, or as required by law. c. International Data Transfers. The parties acknowledge that Personal Data collected in the European Union (“EU”) or European Economic Area (“EEA”) shall be collected by Arabella and Rose affiliate, May transfer Personal Data from the EU or EEA to its affiliates in the United States or other territories where the laws governing the level of protection for Personal Data differs from that of the EU and EEA. * “Your Location” in this schedule includes (a) the place where you operate your business; (b) the place(s) you market to or target advertising to individuals; or; (c) the place You collect or otherwise process any Personal Data; or (d) the place You are otherwise subject to applicable Data Protection Laws. PMA SCHEDULE II: ARABELLA AND ROSE / NOTICES / GOVERNING LAW / VENUE The location from which you operate your business* *Australia Arabella and Rose ENTITY: Arabella and Rose NOTICE ADDRESS: 6/10 Technology Drive, Arundel QLD 4212 Attn: Creative Director 6/10 Technology Drive, Arundel QLD 4212 with a copy to contact@arabellaandrose.com.au GOVERNING LAW: The laws of Queensland, Australia PMA SCHEDULE III: ARBITRATION PROVISIONS Your Location* Arbitration Provision: Unless otherwise specified in Section 14 of the Agreement, the following arbitration provision will apply based on Your location: *All countries other than those noted below All disputes will be administered by the International Institute for Conflict Prevention and Resolution (“CPR”), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each party will designate one, with the third arbitrator to be designated by the two party-appointed arbitrators. Such arbitration will be conducted in New York, New York in the English language. The arbitrators will establish procedures under which each party will be entitled to conduct discovery and will award to the prevailing party in any such dispute the costs and expenses of the proceeding, including reasonable attorney’s fees. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. 1 et. seq., and except as set forth below, the arbitral award will be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators will award only such damages as are permitted to be awarded pursuant to this Agreement. The arbitrators must render their award within 30 days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to this Agreement that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal will be conducted at the place of the original arbitration. *Brazil All disputes will be referred to and finally resolved by arbitration, in accordance with the Guidelines of the Arbitration Center of the Brazil-Canada Chamber of Commerce by a panel of three (3) arbitrators, of whom each party will designate one, with the third arbitrator to be designated by the two party- appointed arbitrators. Such arbitration will be conducted in São Paulo, São Paulo in the Portuguese language. The arbitration will be governed by Brazilian Arbitration Act (Law no. 9.307/1996) and except as set forth below, the arbitral award will be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators will award only such damages as are permitted to be awarded pursuant to this Agreement. *The United Kingdom, EEA and Switzerland All disputes will be referred to and finally resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration (the “Rules”) save that any requirement in the Rules to take account of the nationality of a person considered for appointment as an arbitrator will be disapplied and a person may be nominated or appointed as an arbitrator (including as chairman) regardless of nationality. There will be three arbitrators, two of whom will be nominated by the respective parties in accordance with the Rules and the third, who will be the Chairman of the tribunal, will be nominated by the two party nominated arbitrators within 14 days of the last of their appointments. The seat, or legal place, of arbitration will be London, England. The language to be used in the arbitral proceedings will be English. Judgment on any award may be entered in any court having jurisdiction thereover. *The APAC region All disputes will be referred to and finally settled under the provisions of the Rules of Arbitration of Singapore International Arbitration Centre (“SIAC”). The arbitration will be conducted in English and the venue of arbitration will be SIAC, Singapore. There will be 3 arbitrators appointed as follows. Each of the Parties will appoint an arbitrator and the 2 appointed arbitrators will appoint the third arbitrator. If the parties fail to appoint arbitrators within 30 days of the matter being referred to arbitration, the arbitrators will be appointed in accordance with the SIAC Rules. The parties agree that any directions of the arbitrators and the outcome of the arbitration proceedings will be final and binding upon the Parties. Each party will bear the cost of preparing and presenting its case. The cost of arbitration, and specifically the fees and expenses of the arbitrators, will be shared equally by the Parties unless the award provides otherwise. The Parties agree that they will continue to perform their respective obligations under this Agreement, notwithstanding any arbitration proceeding being conducted in accordance with this section. *Australia All disputes will be referred to and finally settled by arbitration administered by the Australian Commercial Disputes Centre (“ACDC”) under the ACDC Rules for Arbitration in effect at the time the dispute is referred to the ACDC and which terms are hereby deemed incorporated into this agreement by reference (the “Rules”).