PARTNER USER AGREEMENT

 

By accessing and using the ARCMARINEFL.ORG, PARTNER agrees to the terms of this Partner User Agreement. Capitalized terms not otherwise defined herein have the meaning given to them in Section 9.10 below.

 

1.      License to Access and Use Products

1.1.  Use. Subject to the terms of this Agreement, ARCMARINEFL.ORG licenses to PARTNER access to and use of the ARCMARINEFL.ORG on a non-exclusive, revocable basis for the purpose of PARTNER’s partnerships (and to enter into partnerships) with Advertisers and pursuant to PARTNER’s performance under Partner Contracts. ARCMARINEFL.ORG’s obligations and the Products’ functionalities and/or Services may be performed by an ARCMARINEFL.ORG Affiliate.

    

1.2.  Restrictions. 

(a)    General. PARTNER and its Users shall not: (a) share, rent or use the ARCMARINEFL.ORG Technology for the benefit of any person or entity other than PARTNER; (b) modify, copy, reverse compile, disassemble, reverse engineer, decompile, prepare derivative works based on, the ARCMARINEFL.ORG, or attempt in any manner to derive its source code; (c) hack, abuse, adversely interfere with the ARCMARINEFL.ORG, or infect the ARCMARINEFL.ORG Technology with viruses, worms or other malicious or destructive code; and (d) authorize Users that are not employees, directors or officers of PARTNER  without  ARCMARINEFL.ORG’s prior written permission (at ARCMARINEFL.ORG’S sole discretion). PARTNER must at all times utilize the ARCMARINEFL.ORG Technology for its intended purpose.  

(b)    Use Approved Methods. PARTNER must promote each Advertiser using only those methods approved or prescribed by the Advertiser, and in any case not through: (i) provision of leads obtained other than through intended Visitor action (e.g. through scraping or other data mining, or through use of compilations of personal data);  (ii) use of fake redirects, automated software, or other mechanisms to generate actions; and/or (iii) actions using any device, robot, Iframes or hidden frames; or (iv) adware, spyware or malware. If PARTNER wants to use applications to deliver Advertiser Content, PARTNER must disclose to the Visitor a clear and concise description of the core functionality of the applications (including a description of that functionality that is Media Partner’s source of revenue).  Further, PARTNER must meet or exceed then-current industry standards for applications (such as getting Visitor’s consent to download/install, etc.).

(c)     Compliance/Quality.  PARTNER agrees that when using the ARCMARINEFL.ORG, it will only publish, transmit, upload and/or distribute information, data, content and material about PARTNER, Advertisers and Advertiser Content that is legal, accurate, and in accordance with the Partner Contracts agreed with the Advertisers.  If PARTNER intends to use incentives to promote an Advertiser and procure clicks, leads or sales, PARTNER is required to notify the Advertiser prior to entering into a Partner Contract, and PARTNER’s use of incentives must be in a bona fide way.  Additionally, PARTNER and its website(s) and promotional means must comply with all rules, laws, regulations and industry standards, the Partner Contracts, and be of high quality (including but not limited to: not depicting nudity of any sort (including cartoons, fantasy art or manga); not misrepresenting the source of anything posted or uploaded, including impersonation of another individual or entity; not including unauthorized content of someone else's or otherwise violating their intellectual property rights, rights of privacy or publicity; not harming or exploiting minors in any way; not threatening, stalking, defaming, defrauding, degrading, victimizing or intimidating an individual or group of individuals for any reason (including on the basis of age, gender, disability, ethnicity, sexual orientation, race or religion; or incite or encourage anyone else to do so); not harming or disrupting, or intending to harm or disrupt, an Visitor's computer; not containing or being considered to contain 'junk mail', 'spam', 'chain letters', or 'pyramid schemes'; and/or not attempting to manipulate services of others, including but not limited to ranking and reputation systems, interception of Visitor traffic (i.e. through cookie stuffing or other means) or collude with others to do any of the foregoing).

 

1.3.  Responsibilities.  PARTNER shall ensure that each User utilizes its own unique log-in and password that are not shared with anyone. PARTNER shall remove User permission and access rights for each User no longer authorized by PARTNER to access PARTNER’s Account. ARCMARINEFL.ORG must be notified by PARTNER in writing immediately if PARTNER becomes aware of any unauthorized access or use of the ARCMARINEFL.ORG.  PARTNER represents and warrants that it will use the ARCMARINEFL.ORG Technology only in accordance with applicable laws, rules and regulations, including but not limited to Applicable Privacy and Data Security Laws. In no event will ARCMARINEFL.ORG be responsible or liable for defects, problems, or failures of products and/or software not provided by ARCMARINEFL.ORG or its agents; defects, problems or failure of the Internet; or any third party that PARTNER partners with (including but not limited to Advertisers).

    

1.4.  Consequences. Breach of these Section 1 license and use terms may result in suspension of a User’s access and use of the Products, or immediate termination of this Agreement. 

 

2.      Ownership & Reservation of Rights. 

2.1    Impact Intellectual Property. ARCMARINEFL.ORG reserves all rights, title and interest in and to, as well as all Intellectual Property Rights in, the ARCMARINEFL.ORG subject to the limited, non-exclusive, revocable, access and use rights expressly provided for herein.  All derivatives of, improvements to, or modification to the ARCMARINEFL.ORG are owned exclusively by ARCMARINEFL.ORG. PARTNER, on behalf of itself and its Users, acknowledges that the ARCMARINEFL.ORG is covered by or subject to Intellectual Property Rights owned or licensed by ARCMARINEFL.ORG (collectively, “ARCMARINEFL.ORG IP Rights”). Except for the license granted pursuant to Section 1, no license or other rights (express or implied) in or to the ARCMARINEFL.ORG or ARCMARINEFL.ORG IP Rights, are granted, assigned, licensed or conveyed to PARTNER and/or its Users, and all such ARCMARINEFL.ORG Technology and ARCMARINEFL.ORG IP Rights are hereby expressly reserved exclusively by ARCMARINEFL.ORG.  Except as expressly provided for below in Section 9.5, all licenses in and to the ARCMARINEFL.ORG are non-transferable.  PARTNER may not encumber, assert a claim to or ownership of, or adverse interest in, the ARCMARINEFL.ORG or any ARCMARINEFL.ORG IP Rights or any goodwill associated therewith.

 

2.2    Advertiser Data.  During PARTNER’s use and access of the ARCMARINEFL.ORG, ARCMARINEFL.ORG will provide PARTNER with access to Advertiser Data solely in relation to PARTNER’s performance of Partner Contracts.  The Advertiser Data constitutes the Advertiser’s Confidential Information, and its use is subject to the terms of the Partner Contracts. 

    

2.3    Advertiser Relationships.  PARTNER acknowledges and agrees that as between PARTNER and ARCMARINEFL.ORG, ARCMARINEFL.ORG will not be liable for any loss or Claim: (a) arising from any of the Advertiser Content, including but not limited any errors or omissions therein; or (b) incurred as a result of PARTNER and its Users use of, access to, or denial of access to the Advertiser Content. ARCMARINEFL.ORG may without notice or liability investigate (or not investigate) any complaints or suspected violations and/or compliance by PARTNER of this Agreement, applicable laws, rules or regulations, the Partner Contracts and/or PARTNER’s use of Advertiser Content, and may take any action that it believes, in its reasonable discretion, is appropriate, including, but not limited to, rejecting Actions, refusing to host, or removing any Advertiser Content, Advertiser Data, or restricting, suspending, or terminating PARTNER’s or any User’s access to or use of the Advertiser Content and/or ARCMARINEFL.ORG Technology; however, ARCMARINEFL.ORG also reserves the right not to take any action. PARTNER is solely responsible for choosing Advertisers to work with and all aspects of those relationships. In no event will ARCMARINEFL.ORG be liable for Users’, PARTNER’s or any Advertiser’s acts, errors or omissions. From time to time, ARCMARINEFL.ORG may perform actions on behalf of Advertisers or PARTNER as needed to perform the ARCMARINEFL.ORG Technology. ARC MARINE disclaims liability for such actions when undertaken by ARC MARINE in good faith and using a commercially reasonable interpretation of such instructions or as is reasonable to perform the ARCMARINEFL.ORG. ARC MARINE may also take actions that have a direct or indirect impact on PARTNER's use of the ARCMARINEFL.ORG Technology for the protection of or in the interests of the integrity and performance of the ARC MARINE, in ARCMARINEFL.ORG’s sole discretion.

    

3.      Payment of Compensation & Taxes

3.1    Payment. All Partner Compensation for compensable Events tracked by ARCMARINEFL.ORG or reported and/or recorded through the ARCMARINEFL.ORG must be paid by Advertisers through ARCMARINEFL.ORG in the Partner Contract currency, unless PARTNER elects within its Account to receive payment in another currency (which will be subject to processing, including associated costs and charges, via foreign exchange).  Payment shall be made pursuant to the terms of each Partner Contract.  In no event will ARCMARINEFL.ORG be liable to PARTNER for such compensation amounts unless full payment is made by the Advertiser to ARCMARINEFL.ORG of all amounts owed by the Advertiser to ARCMARINEFL.ORG, as well as all amounts owed to all of the Advertiser’s partners (including PARTNER). ARCMARINEFL.ORG may offset amounts owed by PARTNER to Advertisers (or ARCMARINEFL.ORG) from amounts credited to PARTNER’s Account as compensation under Partner Contracts. Compensation amounts may be disqualified pursuant to Partner Contract terms, and if already paid out to PARTNER, ARCMARINEFL.ORG (on the Advertiser’s behalf) may seek return of compensation from PARTNER that was previously paid out, even after the effective date of termination.   Payment of any amounts earned by Advertisers is subject to PARTNER complying with all relevant laws, rules and regulations, including those concerning tax form completion and meeting minimum thresholds for payment, which may vary based upon the payment method elected by PARTNER.  If PARTNER does not accurately complete any such required forms as per the requirements of the relevant jurisdiction and/or ARCMARINEFL.ORG is unable to verify the information and/or documents submitted by PARTNER, amounts earned by PARTNER shall be subject to the Account Management Fees as per Section 3.3.

 

3.2    Taxes. With respect to Partner Compensation and ARCMARINEFL.ORG fees (if any), PARTNER is solely responsible for any taxes, levies, duties or similar governmental assessments of any nature that are assessable by any jurisdiction whatsoever (collectively, “Taxes”). If ARCMARINEFL.ORG has a legal obligation to pay, withhold or collect Taxes for which PARTNER is responsible under this Agreement and/or the Partner Contracts, ARCMARINEFL.ORG will invoice PARTNER and PARTNER will pay that amount unless ARCMARINEFL.ORG is able to deduct such amount from PARTNER’s Account (i.e., from Partner Compensation credited to PARTNER’s Account), or if PARTNER provides ARCMARINEFL.ORG with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ARCMARINEFL.ORG is solely responsible for taxes assessable against ARCMARINEFL.ORG based on ARCMARINEFL.ORG's income, property and employees.   All late charges, penalties or interest due to PARTNER’s late payment of Taxes invoiced to PARTNER are solely the responsibility of PARTNER.     

 

3.3    Fees & Account Management Fees. If ARCMARINEFL.ORG offers and PARTNER requests (which may be by way of click-through) optional services of ARCMARINEFL.ORG for which there are fees, PARTNER is responsible for all such fees and they may be deducted from any Partner Compensation credited to PARTNER’s Account or invoiced to PARTNER and payable net thirty (30) days from PARTNER’s receipt.  PARTNER is obligated to maintain accurate contact information on its Account, including providing ARCMARINEFL.ORG with the relevant tax identification information.  If PARTNER does not keep such information up to date and ARCMARINEFL.ORG is unable to process compensation payments to PARTNER after six (6) months from when PARTNER was eligible to be paid, ARCMARINEFL.ORG will deduct a fee of Ten US Dollars ($10) per month (“Account Management Fees”) unless and until PARTNER comes into compliance, or until the Account balance is zero.  

 

4       Term & Termination

4.1    General. This Agreement shall commence on the Effective Date and shall remain in force unless modified, superseded or terminated. PARTNER may terminate this Agreement upon written notice to ARCMARINEFL.ORG or stop using the ARCMARINEFL.ORG Technology at any time. ARCMARINEFL.ORG may terminate this Agreement by written notice: (a) upon ten (10) days’ notice (a “Notice Period”) to PARTNER due to PARTNER’s and/or its Users’ breach of this Agreement if such breach is not cured prior to the end of the Notice Period (unless incurable, pursuant to Section 1.4  or if a repeated breach, then prior written notice is not required); (b) due to ARCMARINEFL.ORG’s continued delay or inability to provide the ARCMARINEFL.ORG or due to any cause(s) beyond ARCMARINEFL.ORG’s control (a “Force Majeure”); or (c) for any or no reason upon thirty (30) days prior written notice (a “Notice Period”).   Termination is effective as of the end of the Notice Period (if prior written notice is required and the conditions for termination are met), or upon written notice in all other cases. 

 

4.2    Effect of Termination. Upon the effective date of termination, ARCMARINEFL.ORG shall cease providing access to and PARTNER shall cease all use of the ARCMARINEFL.ORG.  ARCMARINEFL.ORG may seek return of Partner Compensation previously paid out, even after the effective date of termination, due to PARTNER’s non-compliance with this Agreement and/or the Partner Contracts.  Post-termination obligations in Section 6.3 shall apply to each Party’s Confidential Information and/or the Data Protection Agreement with respect to Personal Data.

 

5       Representations and Warranties 

5.1    Continuing Warranties/Disclaimers.  PARTNER represents and warrants to that the statements contained in this Section 5 are true and correct as of the Effective Date and shall continue to be true and correct through the date of termination of this Agreement (unless stated otherwise). ARCMARINEFL.ORG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND FITNESS FOR A PARTICULAR PURPOSE. ARCMARINEFL.ORG PRODUCTS ARE PROVIDED “AS IS”. ARCMARINEFL.ORG DOES NOT WARRANT THAT THE ARCMARINEFL.ORG WILL RUN UNINTERRUPTED OR BE ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE ARCMARINEFL.ORG TECHNOLOGY OR AS TO ANY USABILITY OR AVAILABILITY OF ADVERTISER CONTENT, ADVERTISER DATA, OR PARTNER DATA PROCESSED BY ARCMARINEFL.ORG. IN NO EVENT WILL ARCMARINEFL.ORG BE LIABLE FOR ACTS, ERRORS OR OMISSIONS OF THIRD PARTIES (INCLUDING BUT NOT LIMITED TO ADVERTISERS).

 

5.2    Warranties: PARTNER represents and warrants that: (i) it has full power and authority to execute, deliver and perform its obligations under this Agreement, and will do so without conflict with any obligation, contract, lease, license, third party’s rights, applicable law or agreement to which PARTNER is a party or by which PARTNER is bound; (ii) in performance of this Agreement and its use of the ARCMARINEFL.ORG, PARTNER will comply with all applicable laws (including but not limited to Applicable Privacy and Data Security Laws); (iii) it has the right to transmit all PARTNER Data through the ARCMARINEFL.ORG; (iv) it will use the Advertiser Content and promote the Advertisers pursuant to the terms of this Agreement (including the Data Protection Agreement) and the Partner Contracts, and will not use Advertiser Content or promote the Advertiser in a way that infringes or misappropriates any third party’s Intellectual Property Rights or violates applicable law, rule or regulation; and, as applicable, (v) it has and will at all times comply with Applicable Privacy and Data Security Laws, including but not limited to making legally required notices to and/or obtaining any legally required consents from each Visitor for ARCMARINEFL.ORG, as a service provider of PARTNER, to Process the Visitor’s Personal Data pursuant to the Data Protection Agreement.

 

6       Confidentiality & Personal Data

6.1    Scope. The Receiving Party shall prevent disclosure of the Disclosing Party’s Confidential Information to anyone (including employees, contractors and agents) other than those with a need to know such Confidential Information for the purposes of this Agreement, and who are contractually obligated to keep Disclosing Party’s Confidential Information confidential. The Receiving Party may use the Disclosing Party’s Confidential Information only for the purposes permitted under this Agreement. Disclosure to third parties may be made only to those that the Disclosing Party has authorized such disclosure (including Advertisers for the purpose and/or prospect of Partner Contracts), and Confidential Information shall include information provided by Advertisers that is authorized for disclosure to PARTNER. The Receiving Party must use reasonable efforts to maintain the confidentiality of the Confidential Information, including steps to protect it as the Receiving Party takes to protect its own similarly valuable confidential and proprietary information, and in no event less than a reasonable standard of care. All Confidential Information, including, without limitation, all copies of Confidential Information exchanged under the Agreement, is and will remain the property of the Disclosing Party and/or Disclosing Party’s licensors.

 

6.2    Compliance with Law. The Receiving Party may disclose Confidential Information that it is obligated to produce by law or other similar requirement of a governmental agency or a subpoena for the limited purpose required by a court or government agency, so long as the Receiving Party provides the Disclosing Party with written notice in advance of any such disclosure (unless prohibited by law or order), and complies with any applicable protective order or equivalent designed to protect the confidentiality of the Confidential Information.

 

6.3    Continuing Obligations. Upon termination or expiration of this Agreement, the Receiving Party shall destroy the Disclosing Party’s Confidential Information, unless return of Confidential Information is requested in writing by the Disclosing Party within      sixty (60) days after termination or expiration of the Agreement.  Notwithstanding foregoing, the Receiving Party shall not be obligated to purge any Disclosing Party Confidential Information archived pursuant to the Receiving Party’s normal document retention practices, subject to the continuing obligations of Section 6.1 with respect to such not-readily accessible, archived Confidential Information.  PARTNER Data Processed by ARCMARINEFL.ORG may be retained by ARCMARINEFL.ORG for as long as necessary to comply with its obligations under this Agreement and/or as permitted or      required by applicable laws, rules and/or regulations. The obligations of confidentiality, non-use and non-disclosure of Confidential Information shall survive the expiration or termination of this Agreement.

 

6.4    Personal Data.  This Agreement is subject to the then-current Data Protection Agreement located at: https://ARCMARINEFL.ORG/legal/Data_Protection_Agreement.pdf, which is incorporated herein by this reference and each Party acknowledges acceptance of its terms. When use of the ARCMARINEFL.ORG Technology requires  ARCMARINEFL.ORG to Process Personal Data of Users and Visitors, such Processing will be done in accordance with the Data Protection Agreement.

7       Indemnity 

7.1    ARCMARINEFL.ORG Indemnity.  ARCMARINEFL.ORG (as an “Indemnifying Party”) agrees to indemnify, hold harmless, and defend (“Indemnify”) PARTNER, its officers, directors, employees, agents, successors and assignees of each (each a “PARTNER Indemnified Party”), from and against all Claims because of ARCMARINEFL.ORG’s violation of or failure to comply with Applicable Privacy and Data Security Laws.  ARCMARINEFL.ORG’s indemnification obligations are subject to Section 7.3 and limited to the extent and percentage a Claim arises from PARTNER’s (i) breach of this Agreement and/or the Data Protection Agreement, (ii) negligence, (iii) illegal conduct, and/or (iv) willful misconduct.

 

7.2    PARTNER Indemnity.  PARTNER (as an “Indemnifying Party”) agrees to ARCMARINEFL.ORG, ARCMARINEFL.ORG Affiliates and each of their officers, directors, employees, agents, third party service providers (for products & services resold by ARCMARINEFL.ORG) and Advertisers, successors and assignees of each (each an “ARCMARINEFL.ORG Indemnified Party”), from and against all Claims because of: (a) PARTNER’s violation of or failure to comply with any applicable law, ordinance, regulation, rule or order (including but not limited to Applicable Privacy and Data Security Laws); (b) PARTNER’s breach of Section 6 (Confidentiality); and (c) PARTNER’s breach of any of its representations and warranties and/or terms in this Agreement.   PARTNER

 

7.3    Requirements.  An  Indemnifying Party’s obligation to Indemnify pursuant to this Section 7 is subject to (a) the Indemnified Party providing the Indemnifying Party with timely written notice of the Claim, (b) the Indemnified Party giving the Indemnifying Party the sole right to defend, compromise, and settle any such Claim (except where settlement would impose any cost or limitation on the Indemnified Party, or would admit fault by the Indemnified Party without the Indemnified Party’s consent), and (c) the Indemnified Party providing reasonable cooperation and assistance to the Indemnifying Party, at the Indemnified Party’s sole expense. Notwithstanding the foregoing, the Indemnified Party shall be entitled to participate in its own defense at the Indemnified Party’s own expense, although such participation does not reduce or relieve the Indemnifying Party’s obligations under this Section 7. 

 

8       Limitations of Liability

8.1    Disclaimers. ARCMARINEFL.ORG shall not be liable for: (a) PARTNER’s use of the ARCMARINEFL.ORG Technology in breach of this Agreement (including but not limited to Section 1 and/or the Data Protection Agreement); (b) PARTNER’s and/or its Users  acts, errors and omissions; (c) defects, problems, or failures of products, services and/or software not provided by ARCMARINEFL.ORG; and/or (d) defects, problems or failure of the Internet. PARTNER shall be fully responsible and liable to the fullest extent permitted under law for PARTNER’s misappropriation or breach of. ARCMARINEFL.ORG’s Intellectual Property Rights or PARTNER’s obligations under Section 6 (Confidential Information & Personal Data), and for return or recoupment of all Partner Compensation paid out but unearned or generated in breach of this Agreement.  For the avoidance of doubt, this Section 8 shall survive the termination of this Agreement. 

 

8.2    LIMITS.  ARCMARINEFL.ORG’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED TWENTY-FIVE THOUSAND US DOLLARS ($25,000).  IN NO CIRCUMSTANCE WILL ARCMARINEFL.ORG HAVE ANY LIABILITY TO PARTNER, ITS USERS, OR ANY THIRD PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR OTHER INDIRECT, SPECIAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT ARCMARINEFL.ORG IS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.  THIS SECTION 8.2 DISCLAIMER DOES NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, OR TO ARCMARINEFL.ORG’s LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ARCMARINEFL.ORG.

 

8.3    ALLOCATION OF RISK.  THE ABOVE LIMITATIONS ON LIABILITY REFLECT THE PARTIES’ AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES.  THE LIMITATIONS SPECIFIED IN THIS SECTION 8 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

    

9       Miscellaneous

9.1    Independent Contractor:  ARCMARINEFL.ORG is and shall remain an independent contractor of PARTNER and nothing herein shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between the Parties.  Neither Party shall have any authority to incur any obligations on behalf of the other Party or to make any promise, representation or contract of any nature on behalf of the other Party.

 

9.2    Governing Law:  The validity, interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of California without reference to its choice of law doctrine. Each Party shall be entitled to pursue any and all remedies that are available to it at law or equity in state or federal court in Miami/Dade County, Florida .  Each Party agrees that it shall not raise, and waives, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction.

 

9.3    Entire Agreement:  This Agreement and the Data Protection Agreement represent the entire understanding and agreement between the Parties that related to the subject matter hereof, and supersede any and all prior contracts, agreements, understandings or representations, whether written or oral. The Parties expressly agree that any confidentiality and non-disclosure agreement(s) executed between the Parties prior to the date of this Agreement are terminated and such terms are superseded by the terms of this Agreement. The Parties may agree to additional terms and conditions that are applicable to specific. ARCMARINEFL.ORG functionalities and/or services.  Each of the Parties acknowledges that there are no other promises, representations, or warranties whatsoever, whether by a Party, its Affiliate, employee, contractor, officer director, agent or attorney of such Party, and acknowledges that it has not executed or authorized the execution of this Agreement in reliance upon any such promise, representation or warranty, that is not expressly contained in this Agreement.

 

9.4    Third Party Beneficiaries: This Agreement is made solely for the benefit of the Parties to this Agreement, ARCMARINEFL.ORG’s Affiliates and their respective permitted successors and assigns. Other than pursuant to a Party’s indemnification obligations (as applicable) and Affiliates, no other person or entity shall have or acquire any right, power or privilege by virtue of this Agreement, or have any benefit or interest, arising out of this Agreement. Any obligation of ARCMARINEFL.ORG may be performed by an ARCMARINEFL.ORG Affiliate, and the terms of this Agreement may be enforced by an ARCMARINEFL.ORG Affiliate. ARCMARINEFL.ORG may amend this Agreement (or any part thereof) upon written notice to PARTNER which may be through PARTNER’s Account or to the email address listed on PARTNER’s Account.  Except as specifically provided for in the preceding sentence or otherwise in this Agreement, no alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either Party except by written mutual agreement.

  

9.5    Assignment:  PARTNER may not assign this Agreement or delegate its duties to any third party without the prior written consent of ARCMARINEFL.ORG, including but not limited to transfers to any successor in interest (such as in a merger, consolidation or sale of all or substantially all of the Party’s stock or assets).    ARCMARINEFL.ORG may freely assign and transfer this Agreement and delegate its duties. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.

 

9.6    Notice:  No notice required or permitted hereunder shall be valid unless given in writing and shall be deemed to have been validly given only if delivered as follows: (a) by ARCMARINEFL.ORG to PARTNER – within the messaging functionality of the ARCMARINEFL.ORG or at the email address listed on PARTNER’s Account; and (b) by PARTNER to ARCMARINEFL.ORG -  by registered or certified mail, postage prepaid, return receipt requested, or commercial courier to: ARCMARINEFL.ORG, 220 Kings Point Drive, Attention: Legal Dept, Sunny Isles Beach, FL 33160, USA.  Notice is effective upon receipt (or refusal to accept receipt), and, in the case of email notice, upon delivery.

 

9.7    Survival/Severability:  Except as otherwise provided herein, warranties and obligations contained herein shall survive termination of this Agreement, regardless of the reason for such termination, and shall continue in full force and effect. The provisions of this Agreement are severable, and if any clause or provisions hereof shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision in this Agreement in any jurisdiction.  Any such clause or provision held invalid or unenforceable, in whole or in part, to the extent permitted by law, shall be restricted in applicability or reformed to the minimum extent required for such clause or provision to be enforceable.

    

9.8    Remedies/Waiver:  Unless explicitly stated otherwise, each Party’s rights and remedies whether in contract, law or equity, are cumulative. Any waiver by either Party of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provision or condition of this Agreement, nor a waiver of a subsequent breach of the same provision or condition, unless such waiver is expressed in writing and signed by the Parties.  Delay in the enforcement of any remedy in the event of a breach of any term or condition, or in the exercise by either Party of any right, shall not be construed as a waiver of such remedy or right, unless the Agreement provides for a specific period of time for notice of breach or exercise of a right.

 

9.9    Electronic Signatures/Interpretation.  The Parties acknowledge that they have had an opportunity to review this Agreement, seek counsel regarding interpretation of its terms, and an opportunity to negotiate and make amendments to these terms.  In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. PARTNER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS. Further, PARTNER hereby waives any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

 

9.10 Definitions.  Capitalized terms used, but not otherwise defined herein, have the following meanings:

(a)    “Account” means the password protected area within the Products that contains PARTNER’s contact information (including for notifications, that is required to be kept up-to-date by PARTNER), and that contains a ledger account with balance information regarding compensation amounts owed to PARTNER by Advertisers.

(b)    “Actions” or “Events” means each occurrence, such as a click, lead, install, impression or other action, identified in the Partner Contract that is tracked by or reported to and recorded by ARCMARINEFL.ORG and/or for which PARTNER is compensated pursuant to the terms of the Partner Contracts.

(c)     “Advertiser” means each entity with whom the PARTNER enters into a Partner Contract.

(d)    “Advertiser Content” means an Advertiser’s advertising materials in any form or format, such as visual, written or audible communications, files, documents, videos, recordings, and that is made available to PARTNER through or for the provision of the ARCMARINEFL.ORG.

(e)    “Advertiser Data” means confidential or proprietary data supplied by the Advertiser or Visitors or generated through the ARCMARINEFL.ORG as a result of Visitors’ interactions with Advertiser Content and their resulting Actions. PARTNER

(f)     “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with ARCMARINEFL.ORG. Control in this context (including its correlative meanings) means direct or indirect possession of the power to direct or cause the direction of the management and policies of such entity, whether through ownership or control of more than 50% of the voting interests of the subject entity, by contract or otherwise.

(g)    “Applicable Privacy and Data Security Laws” means any and all privacy, security, and data protection laws, rules and regulations of any applicable jurisdiction, that are applicable to the collection, processing, storage, protection and disclosure of Personal Data..

(h)    “Claims” means all third party alleged or actual actions, causes of action (of any nature or type), personal injury, claims, damages, demands, disbursements, judgments, legal proceedings, liability, losses, property damage, settlement payments, costs or expenses (including attorneys’ fees and costs).

(i)     “Confidential Information” means all information or material, whether past, present or future, and whether in oral, written, digital, electronic or other form, that is of or concerning a “Disclosing Party” (Party providing the information or whom the information is about)  which is disclosed to or learned by a “Receiving Party” (Party receiving or learning the information), that relates in any way to, or is about, the Disclosing Party, its financial data, business plans, pricing, methods, methodologies, processes, lists, intellectual property rights, customer information, products, services, information technology, software user interfaces, programs, research, development and/or marketing strategies, whether or not such information and materials are marked or identified as “confidential”; provided that “Confidential Information” shall not include information which is: (i) approved for release or released by the Disclosing Party for public disclosure; (ii) becomes known publicly through no fault of the Receiving Party; (iii) is lawfully obtained from a third-party free of restrictions on disclosure; (iv) is already known to the Receiving Party; or (v) is developed by or for the Receiving Party independent of the Disclosing Party’s Confidential Information; or (vi) is released without restriction by the Disclosing Party.

(j)      

(k)    ““ARCMARINEFL.ORG” means Impact Tech, Inc., a Delaware corporation, with its principal place of business at 220 Kings Point Drive, Sunny Isles Beach, FL 33160, USA.

(l)     “ARCMARINEFL.ORG” means the products, services, platform, documents, software, works of authorship, inventions, technology, hardware, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, and other tangible or intangible technical material or information of ARCMARINEFL.ORG, including statistical data and metrics concerning any of the foregoing.

(m)   “Intellectual Property” means any product of the human intellect that the law protects from unauthorized use by others, and “Intellectual Property Rights” means any and all right, title and interest in Intellectual Property existing as of the Effective Date or at any time thereafter, worldwide, including all patent, patent application, copyright, trademark, trade name, service mark, service name, trade secret or other proprietary right arising or enforceable under any applicable law, rule, or regulation.

(n)    “PARTNER” means the individual or entity that enters into this Agreement with ARC MARINE and does not include (and these terms are void and ARCMARINEFL.ORG may not be used by) individuals under the age of 18 years old as well as competitors of, or those using the ARC MARINE Technology to compete with, ARC MARINE.

(o)    “PARTNER Data” means the Personal Data if any that is provided by PARTNER or Visitors (or Processed by ARC MARINE about Visitors that visit or use PARTNER’s website(s) or other promotion methods and means, and that interact with Advertiser Content promoted by PARTNER in accordance with the terms of this Agreement and the Partner Contracts.

(p)     “Partner Contract(s)” means the terms and conditions entered into with an Advertiser with respect to promotion of the Advertiser or Advertiser Content, including compensation and other details (such as permitted use, prohibited use, etc.), and that are implemented through ARCMARINEFL.ORG.

(q)     “Personal Data” has the meaning given to it in Applicable Privacy and Data Security Laws, and that is Processed by ARCMARINEFL.ORG and relates to, describes, is capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular natural person, whether on its own or in the aggregate with other information Processed by ARCMARINEFL.ORG, and excludes anonymous or anonymized information.

(r)     “Process(ing)” means any operation or set of operations that is performed by ARCMARINEFL.ORG and/or ARCMARINEFL.ORG Technology, whether by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, performance, disclosure by transmission, dissemination or making available (including making available to view), transfer, alignment or combination, blocking, erasure or destruction.

(s)      “Users” means individuals who are authorized by PARTNER to use the ARCMARINEFL.ORG Technology on behalf of PARTNER, and that set up user unique identifications/log-ins and passwords.  A “User” may not be a competitor of or compete with ARCMARINEFL.ORG.  PARTNER may not authorize third parties as a “User”.

(t)     “Visitor” means an individual that is a consumer or customer/prospective customer of and that interacts with Advertiser Content, such as clicking on a text link or banner, filling out the Advertiser’s lead form, making a purchase from the Advertiser, etc.

 

EACH PERSON EXECUTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE HAS COMPLETE AND FULL AUTHORITY AND CAPACITY TO ACT ON BEHALF OF THAT ENTITY. SUCH PERSON AGREES TO INDEMNIFY, DEFEND AND HOLD ARCMARINEFL.ORG AND ITS AFFILIATES HARMLESS IN THE EVENT THAT THE PERSON WAS NOT AUTHORIZED.

 

Confidential Information of Angel Rescue Corporation ,and ARC Marine. (dba arcmarinefl.org)

updated November 24, 2023