Team AudioEye Affiliate Program Policy & Agreement

Team AudioEye Affiliate Program Policy & Agreement

To Join Team AudioEye, you must complete a Program Application.

Once approved, Team AudioEye Champions must remain in compliance with these terms.

These terms were last updated on December 11, 2019.

PLEASE READ THIS TEAM AUDIOEYE AFFILIATE PROGRAM AGREEMENT CAREFULLY.

Here is everything you need to know about joining Team AudioEye and being a member of the team, including resources, recommendations, and some super exciting legal jargon.

This is an agreement between you (“Affiliate”, “Team AudioEye Champion”, “you”, “your”) and AudioEye (“AudioEye”, “us”, “our”, or “we”). It describes how we will work together and other aspects of our business relationship.

This Team AudioEye Affiliate Program Agreement (“Agreement” or “Terms”) applies to your participation in our Team AudioEye Affiliate Program (the “Affiliate Program”). We cannot have you participate in our Affiliate Program unless you agree to these terms.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes or ends. If we update or replace the terms we will let you know via electronic means. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

Definitions

Capitalized terms used in this agreement have the definitions given in the context in which they are used. All other terms used herein have the plain English (US) meaning.

Getting Started / Resources

  1. Account: As an authorized Team AudioEye Champion, you can log into your Team AudioEye account at any time and track your success at https://audioeye.refersion.com/affiliate/login.
  2. Media Kit: we’ve put together a marketing and sales enablement , which includes several resources to assist you on your journey to help make the web accessible to everyone.
  3. Need help?: If you are looking for support or have questions, feel free to reach out to the team at teamaudioeye@audioeye.com.

How it all works

AudioEye will attribute referrals to you based on a tracking code (“Affiliate Code”) embedded in your affiliate links. AudioEye will pay you an amount (“Commission”) described below for each transaction associated with your Affiliate Code (“Customer Transaction”).

AudioEye uses the Refersion affiliate tracking system (“Affiliate Tool”) owned by Refersion, Inc. When a referral (“Affiliate Lead”, “Referral”, or “Customer”) clicks through your unique Affiliate Tool tracking link (“Affiliate Link”), Refersion sets a cookie in the browser that contains your tracking code. Refersion also tracks other information, such as the IP address of the referral, in its database along with your tracking code. When the Affiliate Lead decides to buy a product at AudioEye (“AudioEye Services” or “Subscription Service”), a script will look for the cookie, or try to match the IP address, or use similar technology to identify you and award the Commission. Referrals from your Affiliate Link may make a purchase later in time and AudioEye will still award the commission if the cookie is still present in the browser or the IP address still matches one logged in the database.

AudioEye reserves the right to refuse service to any Affiliate Lead.

Commission

Commission rates:

  1. you receive a 20% commission in the first year for each Customer Transaction
  2. you receive a 10% commission for each subsequent year for each Customer Transaction

Referral Incentive

Discount rates:

  1. Each Customer receives a 10% discount on AudioEye Products in the first year

As an example, if you refer a Customer and they purchase AudioEye Pro for $140 per month, you will receive $336 in the first year and $168 each subsequent year. Commissions are paid to you on a monthly basis. In the first year, you will receive 12 payments of $28 for each Customer signing up for AudioEye Pro at $140 per month. Your  Customer will save $168 over the first 12 months of their subscription.

Limitations:

  1. you receive Commission for the first purchase made by a new customer who is not in an active sales process with us at the time of the Affiliate Link click.
  2. The Customer must land on and sign up on an audioeye.com landing page in order to be properly tracked
  3. Affiliate Links rely on cookies to track sales so the Customer cannot have cleared their cookies.
  4. Only Affiliate Links can be used to track sales. Incorrect use of Affiliate Links will cause inability to track Referrals.

    There are a number of other limitations that may result in Commission not being paid – see Customer Transactions, below.

Upgrades/downgrades: you will receive additional Commission if a Customer upgrades to a higher tiered product in the future. You will lose commission if a Customer downgrades to a lower tiered product in the future.

Payment: we aggregate your Commission at month close, paying you within 30 days following the end of each month. A check will be mailed directly to you based on the address on file.

Attribution: In the event a single customer clicks two different Affiliate Links, the first Affiliate gets the credit.

Cookie window: 90 days of clicking your Affiliate Link (“Cookie Duration”)

Promoting AudioEye

AudioEye and Team AudioEye Branding

Do:

  • use the language and assets we’ve provided you in the
  • reference the basic guidelines around trademarks and copyright (see Trademarks and Proprietary Rights sections, below), and all the other Terms that you and your Affiliate Lead must adhere to (See: Terms of Service)

Do Not:

  • use false or misleading statements on the benefits of using AudioEye (e.g. “Solve all of your accessibility issues instantly with AudioEye”). Accessibility is a journey, not a destination.
  • modify or adjust the AudioEye or Team AudioEye Champion logo in any sort of marketing material you might create.

What to call yourself

As we have multiple ways to partner with AudioEye and several ways to reference those relationships, here are some guidelines around what you can and cannot call yourself within the Team AudioEye Affiliate Program.

Do:

  • say you’re on “Team AudioEye” or you’re a “Team AudioEye Champion”

Do Not:

  • refer to yourself as a Partner or that you’ve “partnered with AudioEye.” This includes press releases, references in videos, listings on your website, or in any other marketing material you may be using

Buying Ads

You will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with AudioEye’s own advertising, including, but not limited to, our branded keywords

Other policies you need to be aware of:

  1. Survey Participation: we would encourage you to participate in any Affiliate-specific NPS surveys, industry surveys, marketing surveys, etc. as we request.
  2. Sharing Placements: When requested, you’ll share the places you’ve used your affiliate link. This includes, but is not limited to, links, screenshots, and email sends.
  3. Purchasing AudioEye yourself: One of the benefits of being a Team AudioEye member is that you get AudioEye Pro for free. No need to purchase. AudioEye reserves the right to revoke your Team AudioEye Champion status. If revoked, AudioEye Pro will be disabled and, in order to restore services, you will need to purchase AudioEye yourself. If you desire to upgrade to AudioEye Managed, as a Team AudioEye Champion, you are afforded a 10% discount, but you will not receive any Commission. To Upgrade, just use your Affiliate Link to purchase.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Affiliate Acceptance

Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Team AudioEye Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.

If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, Failure to complete any enrollment criteria, if applicable, within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.

You will comply with the terms and conditions of this Agreement at all times.

Customer Transactions

Affiliate Program Limits. We will pay you Commission for each new Customer who completes a Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of the first purchase of the Subscription Service by the Customer and you will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that customer during their Subscription Service. The Affiliate will not be entitled to receive Commission on any additional purchases of AudioEye Products by that same Customer

Eligibility. To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred (iii)  a Customer must remain a customer sixty (60) days plus the number of days until the end of that calendar month in order to be eligible for a Commission. For example, a Customer who makes a purchase on the 15th of March must remain a customer until the 31st of May in order to be eligible for a Commission. All transactions must occur on an AudioEye.com domain. You are not eligible to receive Commission or any other compensation from us if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Team AudioEye Affiliate Program, or (iii) the Customer participates in any of our partner or referral programs and is eligible to receive commission in relation to the Customer Transaction under any of other program. If at any point you are eligible to receive a revenue share payment that payment amount will not change based on your participation in the Affiliate Program. In competitive situations with other Affiliates, we may elect to provide the Commission to the Affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.

Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by AudioEye. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. If an Affiliate Lead does not purchase the Subscription Service within the time period described within the Agreement of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.

Engagement with Prospects. Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between AudioEye and an Affiliate Lead will be at AudioEye’s discretion.

Commission and Payment. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed through the Affiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date physical address and updated the Affiliate Tool with such address (iv) completed any and all required tax documentation in order for AudioEye to process any payments that may be owed to you.

Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in the section entitled, Commission and Payment (i-iv), remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in the section entitled, Commission and Payment (i-iv), then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.

Commission Payment. We, or an AudioEye affiliate, will pay the Commission amount due to you within thirty (30) days after the end of each month for any Commission amounts that you become eligible for according to the Eligibility section above. We will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one monthly Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to in our discretion).

Taxes. You are responsible for payment of all taxes applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

Commission Amounts. We reserve the right to alter or change the Commission amount. We will post all information regarding the Commission amount within this Agreement.

Training and Support

Affiliate Training and Support. We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.

Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.

During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Proprietary Rights.

AudioEye’s Proprietary Rights. No license to any software is granted by this Agreement. The AudioEye Products are protected by intellectual property laws. The AudioEye Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the AudioEye Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on any information, data, text, messages, software, sound, music, video, photographs, graphics, images, tags, scripts, tests, test results, or remediations that we incorporate into our services (“AudioEye Content”), or the AudioEye Services in whole or in part, by any means, except as expressly authorized in writing by us. AudioEye, the AudioEye logos, the Team AudioEye and Team AudioEye Champion logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.

We encourage all customers, affiliates and partners to comment on the AudioEye Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the AudioEye Products, without payment to you.

Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with the AudioEye Services. For the avoidance of doubt, Customer will own and retain all rights to all information that Customer submits or collects via the AudioEye Services and all materials that Customer provides or posts, uploads, inputs or submits for public display through the AudioEye Services (“Customer Data”).

Confidentiality 

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) AudioEye customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

Term and Termination

Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.

Termination Without Cause. Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.

Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.

Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration and provided that in no event shall you be entitled to payment of Commission under this Agreement if you are eligible to receive a revenue share payment under any other program. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision AudioEye with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a Team AudioEye Champion on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with AudioEye’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own Affiliate Link to purchase AudioEye products for yourself.

Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Disclaimers; Limitations of Liability

Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE AUDIOEY SERVICES, AUDIOEYE CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE AUDIOEYE SERVICES AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE AUDIOEYE SERVICES AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

Cookie Duration. COOKIES USED AS PART OF THIS AFFILIATE PROGRAM HAVE A 90 DAY DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, AUDIOEYE SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

Non-Solicitation

You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.

General

Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and we will let you know by email. The updated Agreement will become effective and binding on the next business day after we have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH MANDATORY ARBITRATION WITH A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Arbitration Terms. You agree that any dispute or claim arising out of or in any way relating to this Agreement or the AudioEye Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration as specified in this section.

Arbitration ProceduresBefore commencing arbitration, you must first present any claim or dispute to us in writing to allow us the opportunity to resolve the dispute. If the claim or dispute is not resolved within 60 days, you may request arbitration by serving a completed Commercial Demand for Arbitration Form on us and the American Arbitration Association (“AAA“). You can contact the AAA at 800-778-7879 or www.adr.org. The arbitration shall be conducted by the AAA in accordance with its Commercial Arbitration Rules, and, when deemed appropriate by the arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes, except as expressly set forth in these Terms. There shall be one arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes. The arbitrator shall be chosen by written mutual agreement of the parties. If, after 7 days, you and we are unable to agree upon an arbitrator, the AAA will appoint the arbitrator. The arbitrator shall apply the substantive law of the state of Arizona, without giving effect to its conflict of law provisions. All face-to-face proceedings shall take place in an agreed-upon location in Phoenix, Arizona.

AwardArbitration is final and binding. In making any award, the arbitrator will be restricted by the “Limitation of Liability” provision in these Terms and will not have jurisdiction to make an award to any party to the arbitration contrary to the “Limitation of Liability” provision. You expressly agree that the rulings of the arbitrator, including any award, shall be binding, non-reviewable and non-appealable.

Confidentiality. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief.

Costs of ArbitrationThe party requesting arbitration must pay the applicable AAA filing fee. Each party shall pay its own expenses of the arbitration, including the expense of its own counsel, witnesses, and presentation of evidence at the arbitration. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party’s costs and expenses incurred in seeking such stay or compelling arbitration, including reasonable attorneys’ fees.

Waiver of Jury and Class Action and Other Representative Proceeding.

THE PARTIES EXPRESSLY AGREE THAT THERE SHALL BE NO JURY TRIAL OR RIGHT TO A JURY TRIAL, OR RIGHT TO ANY OTHER PROCEEDING TO RESOLVE ANY DISPUTE IN ANY COURT. THE PARTIES ALSO EXPRESSLY AGREE THAT ANY DISPUTE IS PERSONAL TO THEM, AND ANY SUCH DISPUTE SHALL ONLY BE RESOLVED BY AN INDIVIDUAL ARBITRATION. NEITHER PARTY AGREES TO CLASS ARBITRATION OR ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF ANY OTHER PERSON OR PERSONS. NEITHER PARTY AGREES THAT A DISPUTE CAN BE BROUGHT AS A CLASS OR REPRESENTATIVE ACTION OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER PERSON OR PERSONS. THE PARTIES AGREE THAT A DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.

Governing Law and Venue

The interpretation of the rights and obligations of the parties in this Agreement and any dispute of any nature that might arise between you and AudioEye, will be governed by the Laws of the State of Arizona, USA, as such laws apply to contracts between Arizona residents performed entirely within Arizona, without regard to its conflict of laws principles.

Subject to the Dispute Resolution Section above, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a federal or state court located in Phoenix, Arizona. You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by AudioEye. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms, and the parties hereby disclaim the application thereof.

Force Majeure. AudioEye will not be liable for delays, failure in performance or interruption of the AudioEye Services which result directly or indirectly from any cause or condition beyond AudioEye’s reasonable control, including any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.

Actions Permitted. Subject to the Dispute Resolution Section above, except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.

Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the AudioEye Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the AudioEye Products to prohibited countries or individuals or permit use of the AudioEye Products by prohibited countries or individuals.

Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

Notices. All notices you provide to AudioEye under these Terms shall be in writing, in English. When you send a notice to AudioEye, such notice shall be deemed properly given when addressed to AudioEye’s address as stated on its website and (1) delivered by personal delivery, (2) delivered by overnight courier service with signature required, or (3) mailed by first class U.S. mail with postage paid, return receipt requested. In addition, you may provide us with notice of termination or non-renewal of these Terms or any Order by contacting our customer service at 866-331-5324.

You agree that we may send you any notice, communication, or other information in connection with the AudioEye Services in electronic form to any e-mail address we have on file for you or, if the notice, communication, or other information applies to multiple users, by posting such notice to the Platform or providing it through the AudioEye Services. Notices, communications, or other information provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. Notices, communications, or other information given through the AudioEye Services will be deemed given and received on the day you access the AudioEye Services containing such notice.

You agree to promptly notify us of any changes in your address or contact details. If AudioEye sends you any notice, communication, or other information but you do not receive it because the email address in our files file is incorrect, out-of-date, blocked by your service provider, or you are otherwise unable to receive the notice, communication, or other information, AudioEye will be deemed to have provided the notice, communication, or other information to you.

Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the AudioEye Services or dependent on any oral or written public comments made by us regarding future functionality or features of the AudioEye Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Program Policies. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference

No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the AudioEye Services, our trademarks, or any other property or right of ours.

Sales by AudioEye. This Agreement shall in no way limit our right to sell the AudioEye Services, directly or indirectly, to any current or prospective customers.

Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.

Exhibit A

AudioEye – GDPR Data Processing Addendum (Affiliates)

This Data Processing Addendum (“Addendum”) sets out the terms that apply as between AudioEye and Marketing Affiliate when processing EEA personal data in connection with the Marketing Affiliate Program. This Addendum forms part of the Marketing Affiliate Program Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Marketing Affiliate Program Agreement (the “Agreement”) unless otherwise defined in this Addendum.

Definitions: (a) “controller,” “processor,” “data subject,” and “processing” (and “process”) shall have the meanings given to them in Applicable Data Protection Law; (b) “Applicable Data Protection Law” means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law (in each case, as may be amended, superseded or replaced from time to time); (c) “EU Data Protection Law” means: (i) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); and (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) “Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.

Purposes of processing. The parties acknowledge that in connection with the Marketing Affiliate Program, each party may provide or make available to the other party Personal Data. Each party shall process such data: (i) for the purposes described the Agreement; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.

Relationship of the parties. Each party will process the copy of the Personal Data in its possession or control as an independent controller (not as a joint controller with the other party). For the avoidance of doubt and without prejudice to the foregoing, AudioEye shall be an independent controller of any Personal Data that it receives or shares with Affiliate in connection with the Marketing Affiliate Program.

Compliance with law. Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data. Neither party shall be responsible for the other party’s compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair and transparent, and shall make available to data subjects a privacy statement that fulfils the requirements of Applicable Data Protection Law.

International transfers. Where Applicable Data Protection Law in the European Economic Area (“EEA”), and/or its member states, United Kingdom and/or Switzerland (collectively for the purposes of this Addendum, the “EU’), applies to the Personal Data (“EU Personal Data”), neither party shall process any EU Personal Data (nor permit any EU Personal Data to be processed) in a territory outside of the EU  unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent a Marketing Affiliate transfers EU Personal Data to AudioEye and AudioEye is located in a territory outside the EU that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law), AudioEye agrees to abide by and process such EU Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time) (“Model Clauses”), which are incorporated by reference in, and form an integral part of, this Addendum. AudioEye agrees that it is a “data importer” and the Marketing Affiliate is the “data exporter” under the Model Clauses (notwithstanding that AudioEye may be an entity located outside of the EEA).

Security:  Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access (a “Security Incident”) and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of EU Data Protection Law/Applicable Data Protection Law.