Introduction
This “Master Campaign Agreement” (or “Agreement”) is between Skylight Financial Services Inc. (“Baselane”) and each Partner (each a “Party” and collectively the “Parties”) that enters into a performance marketing relationship with Baselane by signing up for and using the platform owned and operated by ZASolution called Affonso and hosted from the URL, https://affonso.io (the “Platform”). Each “EIO” (as defined below) is fully-incorporated into the terms of this Agreement and shall be enforceable to the extent supported by the then-existing functionalities and capabilities of the Platform. Parties enter into the performance marketing relationship with Baselane (as facilitated by Affonso) and consent to be bound by this Agreement when they signup for an Affonso account via any website link or URL containing the baselane.affonso.io subdomain.
1. TECHNICAL PROCESS.
1.1 EIOs. When signing up for an Affonso account, the Parties agree to specific terms of engagement in individual “Electronic Insertion Order” (“EIO”) for each party. EIOs contain any supplemental terms and conditions agreed to between the Parties and are outlined in the “Details” function on the Platform. The EIOs shall specify the qualifying parameters or events (“Actions”) that entitle Partner to compensation from Baselane (“Payouts”). The Parties acknowledge that Baselane may set maximum spend limits and caps on the number of Actions that entitle Partner to Payouts in any EIO. The terms of the EIOs are strictly between Partner and Baselane, and ZASolution shall not be a party to this Agreement or EIOs. Each executed EIO together with the Agreement will constitute a separate contract between the Partner and Baselane. Entry into this Agreement and each EIO is subject to Partner and Baselane each being, and continuing to be, a party to a contract with ZASolution permitting them to use the Platform.
1.2 Process. Upon execution of an EIO, Partner may promote Baselane in consideration for Payouts. The Parties acknowledge and agree that: Baselane shall propose an EIO via the Platform or in email communication. EIOs become legally enforceable rights and obligations on the Parties upon acceptance. An EIO may subsequently be amended with one business day notice; provided, however, if Partner does not accept modifications to an EIO proposed by Baselane, Baselane shall have the right to immediately terminate the EIO by providing written notice to Partner. If the Parties utilize other forms of insertion of orders, the Parties are responsible for implementing the appropriate settings on the Platform to conform with such agreed upon terms.1.3 EIO Requirements. Each EIO shall: (a) require Baselane’s prior approval of proposed sites (the “Partner Referral Sites”) which Partner desires to link to the Baselane site at www.baselane.com or specific dedicated page(s) available through such site (collectively, the “Baselane Site”) and (b) the names, e-mails, and phone numbers of two (2) individuals from Partner who will be designated contacts for Baselane.
2. REFERRAL PROCESS
2.1 Code and Link. Baselane will provide HTML code and/or a vanity URL to Partner (the “Baselane Code”) to enable Partner to display or communicate a functional link on each Partner Referral Site, email or podcast by which visitors can enter or click (the “Baselane Link”) for the purpose of (x) initiating the process of signing up for a Baselane account to use the services or (y) accessing offers or forms available through the Baselane Site (collectively, the “Baselane Services”). The prominence and size of the Baselane Link, if displayed in a writing, will be set forth in the EIO.
2.2 Linked Referrals. A Baselane Link will direct potential customers to the Baselane Site where a potential customer can access the Baselane Services. Each such potential customer that accesses Baselane Services through the Baselane Site via the Baselane Link on the Partner Referral Site is referred to herein as a “Customer Referral”.
2.3 Partner will use commercially reasonable efforts to generate Customer Referrals. Baselane makes no guarantee or representation that Partner will be successful in earning any Payouts under any EIO where the terms are contingent upon pay-for performance.
3. PARTNER’S OBLIGATIONS
3.1 Display Baselane Link. Partner will promote and display the Baselane Link on each of the Partner Referral Sites throughout the Term (as defined).
3.2 Promotional Methods/No False Representations. Partner must promote Baselane using only those methods approved or prescribed by Baselane. Unless explicitly authorized in an EIO, Partner shall not promote Baselane using the following means: (a) provision of leads obtained other than through intended consumer (“End User”) action (e.g. through the use of phone books, or similar such compilations of personal data); (b) use of fake redirects, automated software, or other mechanisms to generate Actions; or (c) Actions that are caused that are not in good faith, such as those using any device, robot, iframes or hidden frames. Partner will not make any representations, including, but not limited to, false or misleading representations, with respect to the specifications, features, or functionality of the Baselane Services or Baselane Site. Partner Referral Sites will not mimic Baselane’s Site, or otherwise lead customers to believe that they are on Baselane’s (or a Baselane affiliated company) Site. Partner will not use, among other keywords or exclusively, keywords such as “Baselane”, ”Baselane.com”, and/or any other variations or misspellings to drive traffic to Partner Referral Sites via paid channels. If Partner intends to use incentives to promote Baselane and procure clicks, leads or sales, Partner is required to notify Baselane of such intent prior to executing an EIO with Baselane, and Partner’s use of incentives must be in a bona fide way. Baselane reserves the right at any time to review Partner Referral Sites to ensure that the use of the Baselane Link is in conformity with the terms of this Agreement.
3.3 Baselane Content. Subject to the license rights and restrictions in Section 5.1, Baselane will provide the Baselane Content to Partner for use on each Partner Referral Site in accordance with Baselane’s instructions. Baselane’s obligations hereunder are contingent upon the proper display and use of the Baselane Content by Partner on the Partner Referral Sites.
3.4 Compliance with Company Policies: Partner shall refrain from describing or referring to Baselane as a “bank” or any variation or compound version of the word “bank” such as neobank, challenger bank, or online bank. To the extent required, Partner shall describe Baselane as a financial and “banking” platform company. If the term “banking” is used in any public facing content related to the Affiliate Program, Partner shall ensure that the following disclosure is displayed in bold letters and/or increased font size in a clear and conspicuous manner that is near the use of the terms “banking”: Baselane is a financial technology company and is not an FDIC-insured bank. Banking services provided by Thread Bank, Member FDIC.
3.5 Restricted Partner Referral Sites. Partner represents that none of the Partner Referral Sites referred to in this Agreement contain or link to any web page or site that contains any: (a) nudity, pornography, or other sexual or adult material; (b) hate propaganda or material that encourages or promotes illegal activity or violence; (c) content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third party intellectual property, contract, privacy, or publicity rights; (d) material that promotes or utilizes software or services designed to deliver unsolicited email; (e) material that violates any local, state, or national law or regulation; (f) misrepresentations or material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable, offensive, or harmful or (g) content that promotes discrimination based on race, religion, sex, nationality, disability, age or sexual orientation.
3.6 Authority. Partner represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.
3.7 Additional Obligations. Partner further represents, warrants and covenants that (a)it will not make any representations, warranties, guarantees or other commitments on behalf of Baselane to any Customer Referral with respect to the Baselane Services; (b) it will promote, market and advertise the Baselane Services in a professional and workmanlike manner, in accordance with the highest industry standards, and in accordance with all applicable laws, rules and regulations; (c) it will not engage in any unfair, misleading or deceptive practices with respect to promoting, marketing and advertising the Baselane Services; and (d) it will not conduct business in any manner that does not reflect favorably at all times on the good name, good will, and reputation of Baselane and the Baselane Services.
4. PAYOUTS
4.1 Tracking Actions and Calculating Payouts. Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by Affonso. Affonso shall aggregate payments due from Baselane to Partner in accordance with each EIO. Payouts owing are then pulled from Affonso by Baselane and paid to Partner from Baselane via Baselane’s preferred payment method. Parties are responsible for providing and ensuring accuracy of payment details in Affonso. Baselane will not send payment to a Party if payment details are not provided in Affonso, and accurate tax and banking details are provided to Baselane. Baselane will not follow up if these details are missing. If tracking is disabled as a result of Baselane’s acts or omissions and Baselane continues to receive traffic from Partner, then Baselane’s sole obligation and Partner’s sole and exclusive remedy shall be for Baselane to pay Payouts on a fair and reasonable basis taking into account appropriate factors. Terms and conditions of the sweep program at Baselane’s sole obligation and Partner’s sole and exclusive remedy shall be for Baselane to pay Payouts on a fair and reasonable basis taking into accountappropriate factors.
4.2 Existing Customers and Chargebacks. Customer Referrals for customers that are then-current Baselane customers, or with whom Baselane is then currently negotiating, will not result in any Payouts, as solely determined by Baselane. An Action can be cancelled or returned by Baselane (“Chargeback”) if, as determined in Baselane’s reasonable judgment, (a) the Action is incomplete; (b) if a customer has cancelled or returns an Action; (c) if the Action has been made fraudulently or in an otherwise non-bona fide manner; (d) if the Action is carried out by a person who is outside the area serviced by Baselane; or (e) if Baselane is unable to provide services to a customer in relation to the Action. Each EIO shall state the period of time within which Baselane may apply a Chargeback.
4.3 Taxes and Duties. Partner will pay all sales, use, withholding and other taxes, duties, or fees imposed by any applicable laws and regulations as a result of the payments Partner receives under this Agreement.
5. INTELLECTUAL PROPERTY
5.1 Licenses.(a) Content License. Subject to Partner’s compliance with all the terms of this Agreement, Baselane grants to Partner a non-exclusive, non sublicensable, non-sublicensable, non-transferable (except in accordance with Section 11.6), license during the Term to copy and use the content that Baselane provides for insertion onto Partner’s web properties pursuant to an accepted EIO (“Baselane Content”) for the purpose set forth in Section 2.(b) Requirements. Partner agrees to follow all reasonable instructions and restrictions provided by Baselane with respect to installation and use of the Baselane Content. Partner agrees that Baselane will not be responsible, and that Partner will indemnify Baselane in accordance with Section 10, for any malfunctions, errors, data inaccuracies, or improper use attributable to Partner’s incorrect, unauthorized, or unsupported use of the Baselane Content.(c) Restrictions. Except as expressly permitted in this Agreement, Partner will not: (a) copy or modify the Baselane Content; (b) use the Baselane Content; or (c) transfer, sublicense, lease, lend, rent or otherwise distribute the Baselane Content to any third party. Partner acknowledges and agrees that the Baselane Content and any portion thereof constitute or contain trade secrets of Baselane and its licensors.(d) Baselane Trademark License. Subject to the terms of this Agreement, Company hereby grants to Partner a non-exclusive, royalty-free, non-transferable, and non-sublicensable license during the term of this Agreement to use Baselane’s trademarks, trade names, service marks and logos that Baselane identifies in writing to Partner from time-to-time during the term (collectively, “Baselane Marks”) solely to promote and market the Baselane Services to prospective Customer Referrals. Should Baselane find objectionable any use of the Baselane Marks by Partner, Baselane will have the right to revoke, with respect to the objectionable use, the rights granted to Partner under this Agreement to use the Baselane Marks, and Partner shall promptly cease using the Baselane Marks in the manner found objectionable by Baselane.(e) Partner Trademark License. Partner hereby grants to Baselane a non-exclusive, royalty-free, non-transferable (except in connection with Section 11.5), and non-sublicensable license during the term of this Agreement to use Partner’s trademarks, trade names, service marks and logos that Partner identifies to Baselane from time to time (collectively, “Partner Marks”). Should Partner find objectionable any use of the Partner Marks by Baselane, Partner will have the right to revoke, with respect to the objectionable use, the rights granted to Baselane under this Agreement to use the Partner Marks, and Baselane shall promptly cease using the Partner Marks in the manner found objectionable by Partner.
5.2 Ownership. Partner agrees and understands that Baselane is the exclusive owner of the Baselane Services, the Baselane Content and the Baselane Link, including without limitation all software and intellectual property rights in the foregoing. Baselane agrees and understands that Partner is the exclusive owner of the Partner Referral Sites including without limitation all software and intellectual property rights in the foregoing. In addition, the parties acknowledge that each party retains all ownership, right, title, and interest in and to its trademarks, trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of such party’s services. Each party’s rights are strictly limited to the rights expressly granted in this Agreement.
6. CONFIDENTIALITY
6.1 Obligations. For purposes of this Agreement, “Confidential Information” means any technical or business information, including but not limited to the Baselane Content, that: (a) is disclosed by Baselane to Partner which might reasonably be presumed to be proprietary or confidential in nature; (b) is disclosed by Baselane in a writing that is marked “confidential” or “proprietary” at the time of such disclosure; or (c) is disclosed by Baselane orally and identified as “confidential” or “proprietary” at the time of such disclosure. Partner agrees that it will not disclose to any third party or, except as expressly permitted in this Agreement, use any Confidential Information of Baselane and that it will take all reasonable measures to maintain the confidentiality of all of Baselane’s Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. However, Partner may disclose Confidential Information of the other: (i) on a confidential basis to its legal and/or financial advisors; or (ii) to its employees and consultants who have a bona fide need to know such Confidential Information; provided that each such employee or consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of Baselane’s Confidential Information as those set forth in this Agreement. In the event the party receiving Confidential Information is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, such party will provide the other party with prompt notice so that the other party may seek a protective order or other appropriate remedy and/or waive the receiving party’s compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, the other party waives the receiving party’s compliance with the provisions of this Agreement, and the receiving party will furnish only that portion of the Confidential Information which is legally required, in the opinion of its counsel.
6.2 Exceptions. Confidential Information will not include information that the receiving party can demonstrate: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the receiving party; (b) was known by the receiving party prior to receiving such information from the disclosing party and without restriction as to use or disclosure; (c) is rightfully acquired by the receiving party from a third party who has the right to disclose it under the circumstances and who provides it without restriction as to use or disclosure; or (d) is independently developed by the receiving party without use or reference to any Confidential Information of the disclosing party.
7. TERM AND TERMINATION
7.1 Term. Each individual EIO shall continue until the earlier of: (a) Partner terminating the EIO using the Platform interface; (b) Baselane terminating an EIO for convenience pursuant to the terms of an EIO including notification requirements using the Platform interface; (c) Baselane terminating when Baselane’s budget has been met; (d) either Party terminating this Agreement or an EIO for breach by the other Party; (e) Partner terminating an EIO if the Party does not agree to Baselane’s proposed changes to an accepted EIO; (f) the date of expiration specified in the EIO; (g) Affonso removes the Partner or Baselane relationship or terminates the EIO pursuant to its agreement with ZASolution for the use thereof which is made available at https://affonso.io/terms; or (h) a Party is no longer eligible to use the Platform pursuant to the terms outlined in https://affonso.io/terms.
7.2 Survival. Promptly upon expiration or termination of this agreement, Partner will delete all Baselane Content and remove Baselane Links. The rights and obligations of the parties contained in the following provisions of this Agreement will survive expiration or termination of the Agreement: 3.2, 3.5, 4.2, 4.3, 5.1(c), 5.2, 6, 7.2, 8, 9, 10, 11, and any provisions that specifically state they survive the termination of this Agreement.
8. DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, BASELANE DISCLAIMS, TO THE EXTENT ALLOWED BY APPLICABLE LAW, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE BASELANE SERVICES AND THE BASELANE SITE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL BASELANE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, REVENUE, OR PROFITS), COSTS, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, OR NEGLIGENCE. IN NO EVENT WILL BASELANE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF THE FEES PAID OR OWED BY BASELANE TO PARTNER IN THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM(S) AROSE.
10. INDEMNIFICATION. Partner (the “Indemnifying Party”) agrees to indemnify, defend (or settle), and hold harmless Baselane, its officers, directors, and employees (the “Indemnified Parties”) from any and all third-party liabilities claims, actions, damages, arbitration fees and expenses, costs, and attorneys’ fees incurred by the Indemnified Parties arising out of or resulting from: (a) any claims that the Partner Referral Sites infringe or violate the intellectualproperty rights of any third party; or (b) any act or omission, negligence or willful misconduct of Partner that constitutes a breach of Section 3 or any of Partner’s covenants, representations, warranties or obligations under this Agreement.
11. GENERAL PROVISIONS
11.1 Publicity. Neither party shall issue any press releases nor make any public statements regarding this Agreement without the prior written consent of the other party. Except as expressly permitted under Section 5.1, neither party will use the trademarks, service marks or logos of the other party, without the prior written consent of the other party.
11.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to or application of conflicts of law rules or principles. The parties hereby submit and consent to the personal and exclusive jurisdiction of, and venue in, the federal and state courts located in the Southern District of New York.
11.3 Notices. All notices required or permitted under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, email (return receipt requested), or certified or registered mail, return receipt requested, and in each instance, will be deemed given upon receipt.
11.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
11.5 Successors and Assigns. Partner may not assign or otherwise transfer this Agreement. Any attempt by Partner to assign or otherwise transfer this Agreement shall be void and without effect unless expressly authorized by Baselane in writing in advance. Baselane may freely assign this Agreement.
11.6 Waiver. The failure by any party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.Indemnification Process: Any claim subject to indemnification under this Section 10 will be subject to the following provisions: (a) the Indemnifying Party will be given prompt written notice of the claim by the Indemnified Party, provided that any delay in providing notice will not relieve the Indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the Indemnifying Party was prejudiced by the delay; (b) the Indemnifying Party will have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the Indemnified Party may be made without the express written consent of the Indemnified Party; and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party and its counsel at the Indemnifying Party’s cost and expense.
11.7 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond its reasonable control, which include without limitation: strikes; shortages; riots; insurrection; fires; flood; storm; explosions; acts of God; war; terrorism; governmental action; labor conditions; earthquakes; and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the parties will be excused from any further performance of the respective obligations effected by the Force Majeure Event for so long as the effects of the event continue.
11.8 Independent Contractors. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf with the other’s prior written consent
11.9 Entire Agreement. This Agreement, together with its exhibits, is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and regarding such subject matter). This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
11.10 Counterparts/Electronic Signatures. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The parties hereby acknowledge and agree through sign up for an Affonso account (via any website link or URL containing the baselane.affonso.io subdomain) acceptance of this Agreement, EIOs, and other click-through offers from the other party on the Platform that they are submitting a legally binding electronic signature and are entering into a legally binding contract. EACH PARTY 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 PLATFORM. Further, the parties hereby waive 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.
