Updated as of May 17, 2018

Terms and Conditions

 

This CAKE Basic Services Agreement (the “Agreement”) is between Accelerize Inc. dba CAKE, a Delaware corporation, located at 20411 SW Birch Street Ste. 250, Newport Beach, CA 92660 (“CAKE”, “we” or “us”) and You (“Client,” or “you”). CAKE and Client shall collectively be known herein as the “Parties.”

1. General Conditions of Use

CAKE’s obligations under this Agreement are expressly conditioned upon: CAKE’s receipt and approval, at CAKE’s sole discretion, of your online application to become a Client (the “Application”) which, receipt by CAKE of such Application constitutes your agreement to the terms of this Agreement and your acceptance of CAKE’s use of cookies.

CAKE may update the terms of this Agreement at any time and CAKE will make the updated terms of this Agreement available by posting the updated version on our website (the “Site”). CAKE will use reasonable efforts to inform you of any such updates via the email you provide in your Application. However, your continued use of the CAKE Basic Platform, as defined below, shall be conclusive evidence that you have read and consented to the Agreement as amended or modified and further agree on a going forward basis to comply with, and be bound by, all the terms and conditions contained within the Agreement as amended or modified at that time. The latest version of the Agreement will be posted on the Site and you should review the Agreement prior to each use of the CAKE Basic Platform. You should regularly check the Site for updates and/or changes. If at any point you do not agree to any portion of the terms of this Agreement then in effect, you must immediately stop using the CAKE Basic Platform.

2. Creating an Account

2.1 Application Submission Requirements. To use the CAKE Basic Platform, you must submit a complete and accurate Application via the Site. To join the CAKE affiliate tracking platform (“CAKE Basic Platform”) as a Client, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the CAKE Basic Platform. CAKE will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supplied with your Application. You must immediately inform CAKE if any of the information supplied as part of your Application changes, at any time. If you are submitting an Application on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this Agreement. If you do not have such authority, then you may not submit an Application or use the CAKE Basic Platform on behalf of your employer and you must discontinue all use of the CAKE Basic Platform immediately.

2.2 Effective Date. You accept the terms and conditions contained in this Agreement by completing the Application and clicking “Create Account.” The Agreement is effective as of the date that you submit the Application (the “Effective Date”), provided that CAKE does not reject the Application. CAKE may reject your Application in its sole discretion.

3. License, Restrictions and Conditions of Use

3.1 License. Subject to the terms and conditions of this Agreement and for the sole purpose of using the CAKE Basic Platform, CAKE, for a fee, hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to view, review and utilize the CAKE Basic Platform and any related information provided to you by CAKE. Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and CAKE, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the CAKE Basic Platform or any element of the Affiliate Network interface website generated through use of the CAKE Basic Platform (“Affiliate Network”) for any purpose whatsoever.

3.2 Accessing the CAKE Basic Platform. You agree not to access, or attempt to access, the CAKE Basic Platform by any means other than through the interface provided to you by CAKE. You specifically agree not to access, or attempt to access, the CAKE Basic Platform through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers).

3.3 No Violation of Laws. You agree that you will not, in connection with your use of the CAKE Basic Platform, violate any applicable law, ordinance, rule, regulation or treaty.

3.4 Restrictions. You may not connect to or use the Site or the CAKE Basic Platform in any way that is not expressly permitted by this Agreement.

You may not: (a) remove any proprietary notices from the Site or CAKE Basic Platform or any copy of software provided to you by CAKE (“Software”); (b) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site, CAKE Basic Platform or any Software; (c) sell, assign, rent, lease, act as a service bureau, or grant rights in the Site, CAKE Basic Platform or any Software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of CAKE; or (d) make any false, misleading or deceptive statement or representation regarding CAKE, the Site and/or the CAKE Basic Platform.

Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or the CAKE Basic Platform (or any servers, systems or networks connected to the Site or the CAKE Basic Platform) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site and/or the CAKE Basic Platform or any other person’s or entity’s use of the Site and/or the CAKE Basic Platform (or any servers, systems or networks connected to the Site or the CAKE Basic Platform); (ii) attempt to gain unauthorized access to the Site, CAKE Basic Platform, accounts registered to other users, or any servers, systems or networks connected to the Site and/or the CAKE Basic Platform (iii) use the Site or the CAKE Basic Platform for any commercial purpose or the benefit of any third party, or charge any person, or receive any compensation for, the use of the Site or the CAKE Basic Platform, unless specifically authorized to do so pursuant to the features of the CAKE Basic Platform or in a separate written agreement with CAKE; (iv) use the Site or the CAKE Basic Platform to (A) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (B) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.

3.5 No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the CAKE Basic Platform, including without limitation email addresses or phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or the CAKE Basic Platform, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the CAKE Basic Platform.

3.6 Violation of these terms. You acknowledge and agree that you are solely responsible for (and that CAKE has no responsibility or liability to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which CAKE may suffer) of any such breach.

4. Privacy and Security

Your privacy is very important to us. CAKE will at all times use commercially reasonable efforts to maintain the security, integrity and confidentiality of any and all confidential and/or proprietary information, whether in electronic form or otherwise, and to prevent the direct or indirect, loss, theft, unauthorized, unintended, or accidental access to and dissemination, duplication, distribution, or publication of such confidential and/or proprietary information.

The personal information that you provide to us is stored on servers, which are located in secured facilities and protected by protocols and procedures designed to ensure the security of such information. In addition, we restrict access to personal information to CAKE employees and agents who need to know this information in order to develop, operate and maintain the CAKE Basic Platform. However, no server, computer or communications network or system, or data transmission over the Internet can be guaranteed to be 100% secure. As a result, while we strive to protect user information, we cannot ensure or warrant the security of any information you transmit to us or through the use of any of the CAKE Basic Platform and you acknowledge and agree that you provide such information and engage in such transmissions at your own risk. Once we receive a transmission from you, we will endeavor to maintain its security on our systems.

To ensure the optimal level of protection for your confidential and/or proprietary information you agree to take proactive measures to restrict access to your account, computer, the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for maintaining the confidentiality of your account and password and for restricting access to your computer and the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for all activities that occur under your account or via use of your password. You agree to notify CAKE immediately if you become aware of any unauthorized use of your password or of your account.

5. Processing of Client Personal Data

5.1 This Section 5 only applies to the extent that the Client’s use of the CAKE Basic Platform falls within the scope of DP Law.

5.2 In this Section 5, the following terms shall have the following meanings and shall be construed accordingly:

(a)         “Client Personal Data” means any Personal Data processed by CAKE on your behalf pursuant to or in connection with this Agreement;

(b)         “DP Law” means the Data Protection Act 1998, the EU Directive 95/46/EC, as replaced or superseded from time to time, including by the GDPR and any laws and/or regulations implementing or supplementing the GDPR; the E-Privacy Directive (2002/58/EC) and all other applicable laws and regulations relating to the processing of Personal Data, including any legislation that replaces, repeals and/or supersedes any of the foregoing;

(c)          “EEA” means the European Economic Area;

(d)          “GDPR” means the EU General Data Protection Regulation 2016/679;

(e)         “Privacy Shield” means the Privacy Shield scheme and principles operated by the United States Department of Commerce, as approved by the European Commission Implementing Decision (EU) C(2016) 4176 of 12 July 2016, or any replacement scheme and principles approved by the European Commission for that purpose from time to time;

(f)           “Privacy Shield List” means the authoritative list of organisations maintained by the United States Department of Commerce as having self-certified to the Department of Commerce as adhering to the Privacy Shield;

(g)         “Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data from the EEA to Data Processors established in third countries as set out in the Annex to European Commission Decision 2010/87/EU, (or any subsequent clauses that may amend or supersede such standard contractual clauses;and

(h)         “Subprocessor” means any person (including any third party, but excluding an employee of CAKE or any employee of its sub-contractors) appointed by or on behalf of CAKE to process Client Personal Data on your behalf in connection with this Agreement.

5.3 The terms, “Data Controller”, “Data Processor”, “Data Protection Impact Assessments”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Special Categories of Personal Data” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly and “processed” and “process” shall be construed in accordance with the definition of “processing”.

5.4. Both parties acknowledge and agree that for the purposes of DP Law, Client is the Data Controller and CAKE is the Data Processor of any Client Personal Data processed by CAKE on behalf of Client in connection with CAKE’s provision of services under this Agreement.

5.5 This Section 5.5 sets out certain information regarding CAKE’s processing of the Client Personal Data under this Agreement as required by Article 28(3) of the GDPR. The Client may make reasonable amendments to this Section 5.5 by written notice to CAKE from time to time as the Client reasonably considers necessary to meet those requirements. Nothing in this Section 5.5 confers any right or imposes any obligation on any party. For the purposes of Article 28(3) of the GDPR:

(a) Data Subjects

The Client Personal Data transferred may concern the following categories of Data Subjects:

• Clients, Affiliate Network Customers, Advertisers, Publishers and Partners
• Other business partners, clients, customers, service providers and vendors of Client(who are natural persons)
• Other employees, freelancers, contractors or contacts of Client’s business partners, clients, customers and vendors
• Other employees, agents, advisors, freelancers or contractors of Client(who are natural persons)
• Client’s users authorized by Client to access and use the Services in accordance with the Original Agreement

(b) Categories of Personal Data

The Client Personal Data transferred may concern the following types / categories of Personal Data:

• Personal details, such as names, user names, passwords, email addresses
• Personal Data derived from the use of the Services by Client and other authorised users such as records and business intelligence information
• Metadata including sent, to, from, date, time, subject, which may include Personal Data
• Data concerning education, qualification, and profession
• Data concerning business activities
• Family, lifestyle, and social circumstances data
• Financial details
• Location data
• Profiles and identifiers
• Information about opinions, interests, habits, and preferences,
• File attachments that may contain Personal Data
• Survey, feedback, and assessment messages
• Information offered by users as part of support enquiries
• Other data added by the Client from time to time

(c) Special Categories of Personal Data (if applicable)

The Client Personal Data transferred will not concern any Special Categories of Personal Data or Personal Data relating to criminal conviction and offences.

(d) Nature / Purpose of processing

The Client Personal Data transferred is to be Processed by CAKE as necessary to perform the Services pursuant to the Original Agreement and as further instructed by the Client in its use of the Services. The Client Personal Data will be Processed for the duration of the Original Agreement, unless otherwise agreed in writing.

(e) Location of processing

The Client Personal Data is to be processed by CAKE in the following locations: Brazil, European Union, Japan, Singapore, United States of America.

5.6 Each party warrants and undertakes that it shall comply with all applicable obligations which may arise under DP Law in connection with the processing of Client Personal Data.

5.7 Client shall ensure that: (a) it is entitled to transfer the relevant Client Personal Data to CAKE so that CAKE and each Subprocessor may lawfully use, process and transfer the Client Personal Data in accordance with this Agreement on the Client’s behalf; and (b) the relevant third parties have been informed of, and, to the extent required under DP Law, have given their consent to, such use, processing, and transfer as required by all applicable DP Law.

5.8 CAKE shall:

(a) not process Client Personal Data other than as contemplated under this Agreement and solely for the purposes of providing the services contemplated under this Agreement unless processing is required by any applicable DP Law to which CAKE is subject, in which case CAKE shall, to the extent permitted by any applicable DP Law, inform Client of that legal requirement before the relevant processing of that Client Personal Data;

(b) promptly notify the Client if CAKE believes that the Client’s instructions infringe DP Laws;

(c) ensure that all its personnel who have access to the Client Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;

(d) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to the Client Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including the measures referred to in Article 32(1) of the GDPR;

(e) only process the Client Personal Data within the locations set out in Section 5.5 (e) unless the prior written consent of Client has been obtained;

(f) assist the Client, at the Client’s cost and expense, and taking into account the nature of the processing and information available to CAKE, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security of processing, breach notifications, Data Protection Impact Assessments and consultations with Supervisory Authorities or regulators relating to Client Personal Data processed by CAKE;

(g) notify the Client without undue delay after becoming aware of a Personal Data Breach;

(h) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the services and/or the Agreement unless required by the DP Laws or any applicable law to which CAKE is subject to store the Client Personal Data; and

(i) maintain and make available to Client on reasonable request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to reasonable audits, including inspections, by Client or an auditor mandated by Client in relation to the processing of the Client Personal Data by CAKE or its Subprocessor(s) as required by Article 28(3)(h) of the GDPR.

5.9 The Client acknowledges that CAKE is reliant on it for direction as to the extent to which CAKE is entitled to use and process the Client Personal Data. Consequently, without prejudice to the provisions of Section 20 of this Agreement, the Client shall defend, indemnify and hold harmless CAKE against any claims, actions, or proceedings brought by a Data Subject or a Supervisory Authority arising from any act or omission by it to the extent that such act or omission resulted directly from the Client’s instructions.

5.10 Client hereby generally authorises CAKE to appoint Subprocessors in connection with the provision of the services contemplated under this Agreement.

5.11 With respect to each Subprocessor appointed by CAKE, CAKEshall:

(a) ensure that the arrangement between CAKE and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Client Personal Data as those set out in this Section 4 and meet the requirements of Article 28(3) of the GDPR; and

(b) be fully liable to the Client for the acts or omissions of such Subprocessor in relation to any Processing of Client Personal Data Processed on behalf of CAKE.

5.12 Where CAKEproposes any changes concerning the addition or replacement of any Subprocessor, it shall notify Client in writing as soon as reasonably practicable prior to implementing such change specifying:

(a) the name of any Subprocessor which it proposes to add or replace;

(b) the Processing activity or activities affected by the proposed change;

(c) the reasons for the proposed change; and

(d) the proposed date for implementation of the change.

5.13 If within ten (10) days of receipt of a notice under Section 5.12 above Client (acting reasonably and in good faith) notifies CAKE in writing of any objections to the proposed change, the Parties shall use their respective reasonable endeavours to resolve Client’s objections. Where such resolution cannot be agreed within ten (10) days of CAKE’s receipt of Client’s objections, CAKE shall have a right to terminate this Agreement immediately on notice to Client.

5.14 The Parties acknowledge that, in the provision of the Services under the Original Agreement, CAKE may transfer ClientPersonal Data outside the EEA. Where ClientPersonal Data is transferred outside of the EEA, the provisions of Sections 5.15, 5.16, 5.17, and 5.18 shall apply unless:

(a) the transfer is based on the Privacy Shield Scheme in which case the provisions of Section5.19 shall apply to such transfer; or

(b) the transfer is made to a third country, a territory or one or more specified sectors within that third country, or an international organisation, that has been deemed to provide an adequate level of protection for personal data by the European Commission (in accordance with Article 45 of the GDPR).

5.15 The Parties agree that all terms and provisions of the Standard Contractual Clauses shall be incorporated by reference to this Agreement with the same force and effect as though fully set forth in this Agreement, save that Appendix 1 of the Standard Contractual Clauses shall be replaced by Section 5.5 of this Agreement and Appendix 2 of the Standard Contractual Clauses shall be replaced by Section 5.22 of this Agreement.

5.16 CAKE undertakes not to transfer any Client Personal Data outside of the EEA without:

(a) Client’s prior written consent; and

(b) complying with and executing with Client the Standard Contractual Clauses (as may be amended, updated, replaced or reissued from time to time) in respect of the transfer of Client Personal Data outside of the EEA.

5.17 CAKE hereby agrees to comply with the data importer obligations set out in the Standard Contractual Clauses in respect of the transfer of Client Personal Data outside of the EEA in connection with CAKE’s obligations under this Agreement.

5.18 To the extent that the Standard Contractual Clauses are updated, replaced, amended or re-issued by the European Commission (with the updated Standard Contractual Clauses being the New Contractual Clauses) during the term of this Agreement:

(a) the New Contractual Clauses shall be deemed to replace the Standard Contractual Clauses and the Parties undertake to be bound by the terms of the New Contractual Clauses effective as of the date of the update; and

(b) CAKE shall, at Client’s request, execute a form of the New Contractual Clauses.

5.19 This Section 5.19 applies only to the extent Section 5.14(a) applies.

(a) CAKE represents and warrants:

(i) that it has self-certified to the Privacy Shield and will take all reasonable steps to hold and maintain during the term of the Original Agreement, a valid Privacy Shield certification registered with the US Department of Commerce (Certification);

(ii) to Process Client Personal Data only in accordance with its Certification and the obligations and requirements of the Privacy Shield;

(iii) not, through any wilful act or omission, fail to comply with the requirements of the Privacy Shield or otherwise cause itself to invalidate or cease to hold its Certification; and

(iv) notify Client as soon as it becomes aware that it has been, or will be, removed from the Privacy Shield List.

5.20 Notwithstanding the foregoing, if the Privacy Shield is held invalid by any court of competent jurisdiction or is otherwise suspended or repealed, CAKE reserves the right, in its absolute discretion, to make any amendments or changes to this Agreement to continue to enable transfers of Client Personal Data to the US to be made (or continued to be made) without breaching the applicable DP Law.

5.21 Unless otherwise agreed by the Parties in writing, the Parties agree that Client Personal Data shall be retained by CAKE in compliance with CAKE’s Data Retention Policy .

5.22 CAKE shall maintain and use appropriate safeguards to prevent the unauthorised access to or use of Client Personal Data and to implement administrative, physical and technical safeguards to protect Client Personal Data. Such safeguards shall include:

a) Physical security and access controls;

b) Logical access controls;

c) Account management and data access controls;

d) Password and authentication controls;

e) Entry controls and entry control audits;

f) Data availability controls; and

g) Data separation / segregation controls.

6. CAKE Basic Platform and Affiliate Networks

6.1 CAKE Basic Platform. The CAKE Basic Platform enables interested affiliate Clients to: (a) attract and register third party publishers (“Publishers”) that may then access advertiser-provided advertisements (“Offers”) on the applicable Affiliate Network; (b) attract and register third-party advertising partners (“Advertisers”) that may then make their Offers available to Publishers on the applicable Affiliate Network; and (c) manage all aspects of the Affiliate Network including, without limitation, calculating commissions, tracking sales or other compensable actions, making payments and establishing rules for campaigns.

6.2 Affiliate Network Customers. Individuals/entities who purchase any product and/or service (collectively, “Affiliate Network Products”) made available through your Affiliate Network or who perform any other transaction through your Affiliate Network (“Affiliate Network Customers”) shall not be deemed to be customers, clients or business associates of CAKE. Publishers and Advertisers that enroll in Client’s Affiliate Network shall not be deemed to be the customers, clients or business associates of CAKE. CAKE has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Client and its Affiliate Network Customers, Advertisers or Publishers. CAKE shall have no obligation to resolve any dispute between Client and its Affiliate Network Customers, Advertisers or Publishers. Client expressly agrees to indemnify and hold CAKE, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any dispute between Client and its Affiliate Network Customers, Advertisers or Publishers.

7. Offers

7.1 Your Offers. You agree that you are solely responsible for any Offers that you and/or your Advertisers publish, transmit and/or post by and through the CAKE Basic Platform. You agree, and shall require that your Advertisers and Publishers agree in writing, to use the CAKE Basic Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Offers that you and/or your Advertisers publish, transmit and/or post by and through the CAKE Basic Platform, you agree not to: (a) display any confidential information of any third party, including but not limited to telephone numbers, street addresses, last names, URLs, or e-mail addresses; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Offers are endorsed by CAKE, without CAKE’s specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express advance consent or as otherwise permitted by applicable law, and to the extent not incompliant with applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Offers that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Offers that do not fully comply with all applicable local, state and federal laws, rules and regulations. Engaging in any of the prohibited actions as described in the preceding sentence shall be deemed a breach of the Agreement and may result in the immediate Termination of this Agreement and your Affiliate Network without notice, in the sole discretion of CAKE. CAKE reserves the right to pursue any and all legal remedies against Clients that engage in the aforementioned prohibited conduct. If we receive reports from our upstream service provider that you, your Publishers, or Advertisers are transmitting chain letters, spam or junk-email, or conducting any other form of abuse, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence and CAKE reserves the right to automatically disable the tracking link for the affiliate and Ad.

7.2 Termination of Offers. You acknowledge that CAKE has the right to pre-screen any Offers, but no obligation to do so. At CAKE’s sole discretion, any Offers may be included in the CAKE Basic Platform in whole or in part in a modified form. Without limiting the foregoing, CAKE may terminate and/or suspend any Offers at any time and for any reason, in CAKE’s sole discretion. Client must immediately remove such Offers after any such suspension or Termination, as applicable.

7.3 Offer Responsibility. You acknowledge that the Offers are your sole responsibility. CAKE undertakes no responsibility to monitor or otherwise police: (a) the Offers posted by you and/or your Advertisers on the CAKE Basic Platform; (b) the website (“Advertiser Website”) linked to the Ad; (c) the websites of your Publishers (“Publisher Websites”); and/or (d) any of the products and/or services offered on such Advertiser Websites and/or Publisher Websites including, without limitation, the applicable Affiliate Network Products. You agree that under no circumstance, will CAKE be liable in any way for the Offers including, but not limited to, for any errors or omissions in any Offers, or any loss or damage of any kind incurred as a result of the use or distribution of any Offers transmitted or otherwise made available via the CAKE Basic Platform in connection with any such Offers, Advertiser Websites or Publisher Websites.

8. Affiliate Network Products

CAKE reserves the right to prohibit the marketing of any Affiliate Network Products at any time and for any reason, in CAKE’s sole discretion. Client must immediately cease marketing such Affiliate Network Products after receipt of notice of any such prohibition.

9. Non-Endorsement

CAKE does not regularly monitor, regulate or police the use of the CAKE Basic Platform by any of its participants. The participation in the CAKE Basic Platform by a Client, Publisher, Advertiser, Affiliate Network Customer or other third party does not constitute an endorsement by CAKE of that Client, Publisher, Advertiser, Affiliate Network Customer or other third party. CAKE is not responsible or liable for the acts, omissions, agreements, promises, Offers, Affiliate Network Products, Publisher Websites, Advertiser Websites, other products, services, comments, opinions, advice, statements, offers and other information of any Client, Publisher, Advertiser, Affiliate Network Customer or other third party using the CAKE Basic Platform.

10. Intellectual Property Rights

10.1 Client License. Client grants to CAKE a royalty free, worldwide license (“Client License”) to: (a) display on, and distribute through, the CAKE Basic Platform, Site and in related marketing material produced and distributed by CAKE, the Offers and any other information posted in the CAKE Basic Platform or otherwise made available by Client, its Advertisers and/or Publishers by and through Client’s Affiliate Network. The Client License shall last for the duration of the Agreement.

10.2 CAKE Basic License. CAKE grants to Client a limited, revocable, non-transferable license to use the CAKE Basic Platform solely and exclusively as contemplated by the Agreement and as described in more detail in Section 3.1 above (“CAKE Basic License”).

10.3 Ownership. You acknowledge and agree that CAKE owns all right, title and interest in and to the Site and the CAKE Basic Platform (and any products or services that CAKE does now or at any time in the future may make available to you), including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site and the CAKE Basic Platform are protected by U.S. and international copyright laws. The use, copying, redistribution and/or publication by Client of any part of the CAKE Basic Platform, other than as contemplated hereunder, is strictly prohibited. Further, you acknowledge that the CAKE Basic Platform may contain information that CAKE has designated as confidential and you agree not to disclose such information without CAKE’s prior written consent. Client does not acquire any ownership rights to the CAKE Basic Platform or any material made available by and through the CAKE Basic Platform. The availability of the CAKE Basic Platform, and the associated material, does not constitute a waiver of any rights related thereto.

10.4 Use by Client. Client agrees that its use of the CAKE Basic Platform, any CAKE logos, trademarks, tracking codes and other material made available by and through the CAKE Basic Platform is subject to the CAKE License granted hereunder.

10.5 Third Party Software and Services. The CAKE Basic Platform may be incorporated into, and may incorporate, technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service agreements posted on third party websites and privacy policies posted on third party websites), and you agree to look solely to the applicable third party and not to CAKE to enforce any of your rights in relation thereto.

11. Term and Termination

11.1 The services under this Agreement are provided by CAKE to Client on a month-to month basis, and as such each of the parties, may, in its sole discretion, terminate the Agreement (and thereby the services) at any time, with or without cause, upon thirty (30) days prior written notice to the other party (“Termination”). CAKE may suspend (“Suspension”) Client’s services at any time, without advance notice, for any reason that it finds valid in its sole discretion until cured, including but not limited to where CAKE believes that: (a) Client is in any way in breach of the Agreement; (b) any Offers or Affiliate Network Products are unsuitable for the CAKE Basic Platform for any reason including, without limitation, that the Offers contain, or link to, or that the Affiliate Network Products consist of, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (c) Client or Client’s Advertisers, at any time, are conducting commercial activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations; and (d) Client fails to pay any of the fees herein within seven (7) days of such fees being due.

11.2 Client may Suspend or remove any Offers, Publishers and/or Advertisers at any time with or without notice.

11.3 If Client’s participation in the CAKE Basic Platform terminates or CAKE suspends such participation for any reason, CAKE may, with or without notice remove all Offers and cancel any Affiliate Network activity immediately or, in CAKE’s sole discretion, at any time thereafter.

11.4 Upon any Termination or Suspension of the Agreement and/or Client’s participation in the CAKE Basic Platform: (a) the CAKE License and any and all other licenses and rights granted to Client in connection with the Agreement shall immediately expire; and (b) any and all confidential or proprietary information of CAKE that is in Client’s possession or control must be immediately returned or destroyed. If requested, Client will certify in a writing signed by Client or an authorized officer of Client that all such confidential and/or proprietary information has been returned or destroyed.

11.5 If CAKE terminates Client’s services for breach of the Agreement, including for non-payment: (i) Client shall not be eligible to enter into a new Client Agreement with CAKE, or any other agreement for other CAKE products and/or services, and any attempt to do so shall be null and void; and (ii) except where such action would violate any applicable law, CAKE reserves the right to sell Client’s personally identifiable information, specifically excluding sensitive information, to Client’s Advertisers and Affiliates or to any debt collection company in an effort to recoup any outstanding balances. CAKE may use Clients data in the process to sell the data. Any profit gained in such a transaction will be realized by CAKE only.

11.6 Obligations that, by their nature, would survive any Termination of the Agreement including, without limitation, Sections 13, 16, 17, 18, 19, 20, 21, 23, and 24 shall survive any Termination of the Agreement.

12. CAKE Basic Platform Service

12.1 CAKE Basic Core Platform

a. Up to 300,000 clicks per month. Additional clicks will be charged $.005 each
b. Up to 3,000,000 impressions per month. Additional impressions will be charged $.06 per 1,000
c. Up to 100,000 events per month. Additional events will be charged $.005 each
d. 100 active offers
e. Up to 5,000 Affiliates
f. Limited API support

12.2 Optional Modules:

a. Lead Generation: User Interface Access and up to 5,000 leads for an additional $99/month. Additional leads will be charged $.0025 each
b. E-Commerce: User Interface Access and 100 SKUs for an additional $99/month

12.3 CAKE Basic Support. All CAKE Basic support will be provided in the English Language only. Although CAKE may make the CAKE Basic Platform available in different languages, all customer support will be provided in English only.

12.4 Enhanced Reporting. From time to time, CAKE may make enhanced reporting capabilities and/or other services that are not included in the standard CAKE services packages available to Clients for an additional fee.

12.5 Subsidiaries. CAKE has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing services to you on behalf of CAKE itself. You acknowledge that you understand that the Subsidiaries and Affiliates may be providing the services to you on CAKE’s behalf.

12.6 CAKE Basic Platform Updates. CAKE is constantly innovating and upgrading the CAKE Basic Platform to provide the best possible experience for its users. The CAKE Basic Platform which you use may be updated from time to time by CAKE to improve, enhance and further develop the CAKE Basic Platform and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit CAKE to deliver these to you) as part of your use of the CAKE Basic Platform. You further acknowledge and agree that from time to time, the form and nature of the CAKE Basic Platform which CAKE provides may change without prior notice to you.

12.7 Upper Limit Transmissions. The CAKE Basic Platform has currently set a fixed upper limit on the number of transmissions including impressions, clicks, events and leads as listed in section 12 you may send or receive through your Affiliate Network or on the amount of storage space used for the provision of your Affiliate Network. You acknowledge and agree that such fixed upper limits may be set by CAKE at any time, at CAKE’s discretion. Upon reaching these upper limits, Client will be provided the opportunity to upgrade to the full version of the CAKE platform with no upper limits.

12.8 API Rate Limiting.

a. General Information on API Rate Limits. The CAKE Basic Platform API only allows you to make a limited number of calls in a given hour. The default rate limit for calls to the REST API is sixty (60) requests per hour. The REST API does both account and IP-based rate limiting. Authenticated API calls are charged to the authenticating user’s limit while unauthenticated API calls are deducted from the calling IP address’ allotment. Your Affiliate Network may begin receiving HTTP 400 response codes should it become rate-limited by the REST API. It is best practice for Affiliate Networks to monitor their current rate limit status and dynamically throttle requests if necessary.

b. Avoiding the Rate Limiter. The following techniques and design decisions can be used to help avoid the rate limiter: (a) Caching: Store API responses in your application or on your site if you expect high-volume usage. For example, don’t try to call the CAKE API on every page load of your hugely popular website. Instead, call our API infrequently, cache the response on your end, and display the local version on page loads; (b) Prioritize active users. If your site keeps track of many Affiliate Network users (for example, fetching their statistics), consider only requesting data for users who have recently signed into your site; and (c) Search back-offs. If your application monitors a high volume of search terms, query less often for searches that have no results than for those that do. By using a back-off you can keep up to date on queries that return results but not waste cycles requesting queries that very rarely change.

c. Blacklisting. Please honor the rate limit. CAKE will automatically blacklist your Affiliate Network should you consistently fail to avoid the rate-limiter. When you are blacklisted, your users will be unable to get a response for a request sent to the API. If your Affiliate Network has been blacklisted and you would like service reinstated, please do the following: (a) if you are using the REST API, make a call to the account/rate limit status from the account or computer in question; (b) explain why you think your Affiliate Network was blacklisted and (c) describe how you have fixed the problem that resulted in blacklisting. Send that information in an email to our support email so we can get you back online.

13. CAKE Basic Platform Fees

13.1 In consideration for Client’s use of the CAKE Basic Platform, Client agrees to pay the fees described in this Section 13. The monthly billing cycle begins on the Effective Date and all monthly fees reoccur on the same calendar date each month (“Monthly Billing Cycle”).

13.2 CAKE Basic Fees. Upon registering for a CAKE Basic account, your Active Credit Card will be charged the monthly fee of Three Hundred and Ninety-Nine Dollars ($299.00) for each Affiliate Network that you operate on the cake Basic Platform (“CAKE Basic Monthly Fee”) and if selected you may also be charged an additional Ninety-Nine Dollars ($99.00) for the Lead Generation Module and an additional Ninety-Nine Dollars ($99.00) for the E-Commerce module. Additional transmission fees will also be added to the subsequent monthly charge upon reaching defined thresholds for each transmission.

a. Three Hundred Thousand Click Request Threshold. The CAKE Basic Monthly Fee includes, at no extra charge, three hundred thousand (300,000) gross click requests on the Offers used in connection with the applicable Affiliate Network in any given Monthly Billing Cycle (“Three Hundred Thousand Click Request Threshold”). On top of the CAKE Basic Monthly Fee, an additional fee of One Half Cent ($0.005) will be assessed for every subsequent click request recorded over the Three Hundred Click Request Threshold in any given Monthly Billing Cycle (“CAKE Basic Click Request Usage Fees”). A click request is any request that the tracking platform receives to track a click and redirect the user and includes all clicks that were not tracked or the user was not redirected. Click requests include the total of all requests regardless of if they result in any action.

b. Three Million Impression Request Threshold. The CAKE Basic Monthly Fee includes, at no extra charge, three million (3,000,000) impression requests on the Offers used in connection with the applicable Affiliate Network in any given Monthly Billing Cycle (“Three Million Impression Request Threshold”). On top of the CAKE Basic Monthly Fee, an additional fee of Six Cents ($0.06) will be assessed for every subsequent One Thousand (1,000) impression requests recorded over the Three Million Impression Request Threshold in any given Monthly Billing Cycle (“CAKE Basic Impression Request Usage Fee”). An impression request is any request that the tracking platform receives to track an impression, usually from an impression pixel and includes all requests that were not tracked. Impression requests include the total of all requests regardless of if they result in any action.

c. One Hundred Thousand Event Request Threshold. The CAKE Basic Monthly Fee includes, at no extra charge, one hundred thousand (100,000) gross click requests on the Offers used in connection with the applicable Affiliate Network in any given Monthly Billing Cycle (“One Hundred Thousand Event Request Threshold”). On top of the CAKE Basic Monthly Fee, an additional fee of One Half Cent ($0.005) will be assessed for every subsequent event request recorded over the One Hundred Thousand Event Request Threshold in any given Monthly Billing Cycle (“CAKE Basic Event Request Usage Fees”). An event request is a request that the tracking platform receives to track a payable or non-payable action during the conversion process outside of the traditional primary conversion. Event requests include the total of all requests regardless of if they result in any action.

d. Five Thousand Lead Tracking Request Threshold. The optional Lead Generation Module will result in an additional fee of $99.00 in addition to the Cake Basic Monthly Fee. The Lead Generation Module fee includes, at no extra charge, five thousand (5,000) gross lead tracking requests on the Offers used in connection with the applicable Affiliate Network in any given Monthly Billing Cycle (“Five Thousand Lead Tracking Request Threshold”). On top of the CAKE Basic Monthly Fee and the Lead Generation Module fee, an additional fee of One Quarter Cent ($0.01) will be assessed for every subsequent lead tracking request recorded over the Five Thousand Lead Tracking Request Threshold in any given Monthly Billing Cycle (“CAKE Basic Lead Tracking Request Usage Fees”). A lead tracking request is a request that the tracking platform receives to track lead information collected on publisher landing page forms. Lead tracking requests include the total of all requests regardless of if they result in any action.

e. E-Commerce. The optional E-Commerce Module will result in an additional fee of $99.00 in addition to the Cake Basic Monthly Fee.

f. Calculation of Fees. CAKE Basic Click Request Usage Fees and CAKE Basic Impression Request Usage Fees (collectively, “CAKE Basic Usage Fees”) will be calculated and billed based on the amount of click requests, impression requests and conversion requests recorded for each Monthly Billing Cycle, and either: (a) the Active Credit Card will be charged the CAKE Basic Usage Fees; or (b) you will receive an invoice for the CAKE Basic Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by CAKE in its sole discretion.

g. Upper Limits on Transmissions. CAKE Basic Clients will have upper limits placed on the number of transmissions tracked during each monthly cycle, including impressions, clicks, events and leads. Upon reaching these upper limits, the client’s instance may stop tracking aforementioned transmissions until the next monthly cycle begins or the client upgrades to the full version of the CAKE platform. Reasonable efforts to contact the client will be made to alert them that these limits are approaching and that their transmission tracking will cease unless client agrees to upgrade to the full version of CAKE. The upper limits are described as the following:

i.10,000,000 Impressions
ii. 1,000,000 Clicks
iii. 300,000 Events
iv. 15,000 Leads

h. Upgrading Application Versions. CAKE offers CAKE Basic Clients the option of upgrading from the CAKE Basic Platform to the full version of the CAKE Platform. This upgrade will result in the termination of this agreement and will be bound by a new agreement covering the full version of the CAKE Platform.

i. CAKE provides CAKE Basic users with live reporting tools and it is your responsibility to monitor the Affiliate Network regarding the requests associated with the Three Hundred Thousand Click Request Threshold, One Hundred Thousand Click Request Threshold, Three Million Impression Request Threshold, and Five Thousand Lead Tracking Request Threshold. All determinations with respect to the Three Hundred Thousand Click Request Threshold, One Hundred Thousand Click Request Threshold, Three Million Impression Request Threshold, Five Thousand Lead Tracking Request Threshold and the Upper Limits on Transmissions, shall be made by CAKE, in its sole discretion, and any such determinations shall be final and binding on you. For so long as your CAKE Basic account is activated, the CAKE Basic Monthly Fee will be due and payable upon registering for a CAKE Basic account or reaching the Three Hundred Thousand Click Request Threshold, One Hundred Thousand Click Request Threshold, Three Million Impression Request Threshold, and Five Thousand Lead Tracking Request Threshold and will recur on the same day of each new month, and you will be required to pay all applicable CAKE Basic Fees for that month’s access to the CAKE Basic Platform.

13.3 Billing. By agreeing to the terms of this Agreement and submitting your Application, you authorize CAKE to provide and bill you for your use of the CAKE Basic Platform. All fees are payable in United States currency. You acknowledge and agree that CAKE will not be required to obtain additional authorization from you for each monthly billing.

13.4 Taxes. You shall be solely responsible for paying any and all applicable sales, use, and/or withholding tax (if any) due to all applicable taxing authorities arising from, or in connection with, your participation in the CAKE Basic Platform including, without limitation, taxes and related fees, costs and penalties incurred by you, your Advertisers and/or Publishers pursuant to those tax laws of any applicable state in which, pursuant to the terms of this Agreement, CAKE shall be considered a vendor for tax purposes.

13.5 Termination; Failure to Use. The following conditions apply to any Termination: (a) you shall not receive any pro-rata refund of your fees charged pursuant to this Agreement, for partial months; and (b) you shall not receive any refund for amounts previously paid up to the date of Termination and you remain liable for any and all unpaid charges billed by CAKE. Your failure to use the CAKE Basic Platform does not constitute a basis for refusing to pay any of the associated fees indicated herein.

13.6 Billing Procedures. You agree to be bound by the billing practices of CAKE in effect at any given time. Upon prior written notice to you (with e-mail sufficing), CAKE reserves the right to change its billing practices whenever necessary, in its sole discretion. CAKE may change any CAKE Basic Platform fees upon thirty (30) days prior written notice sent to the email address supplied by you with your original Application, unless a formal change of e-mail address has been submitted to CAKE in writing. Continued membership in the CAKE Basic Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If you do not agree with these changes, you may cancel your Client account at any time by Termination of this Agreement, but you will remain responsible for timely payment of any and all fees charged pursuant to this Agreement that you have already incurred (including any applicable late fees).

13.7 Late Fees. Where Client fails to make any scheduled payment for accrued fees billed pursuant to this Agreement, such overdue amounts will be subject to interest charges in the amount of one and one half percent (1.5%) per month, compounded monthly. Client’s account may be deactivated, and access to the CAKE Basic Platform and/or Site denied, for non-payment.

14. Third Party Links, Content and Services

14.1 The CAKE Basic Platform and this website may contain links to websites operated by other parties. CAKE provides these links to other websites as a convenience, and use of these websites is at your own risk. These websites are not under the control of CAKE and CAKE is not responsible for the content or availability of any linked website. Such links do not imply CAKE’s endorsement of information or material on any other website and you acknowledge and agree that CAKE is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.

14.2 You may, as a result of, or through your use of, the CAKE Basic Platform use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software, or goods may be subject to separate terms between you and the company or person concerned. This Agreement does not affect your legal relationship with these other companies or individuals.

15. Client Representations and Warranties

Client hereby represents and warrants to CAKE as follows:

15.1 Client has the full legal right, power and authority to enter into and perform this Agreement;

15.2 Submission of the Application represents valid execution and delivery by Client of this Agreement and constitutes Client’s legal, valid and binding obligation which is fully enforceable against Client in accordance with its terms;

15.3 Client understands and agrees that CAKE will enter into similar agreements with other CAKE Clients in direct competition with Client;

15.4 Client understands and agrees that Client has independently evaluated the desirability of participating in the CAKE Basic Platform and that Client has not relied on any representation and/or warranty other than those set forth in the Agreement;

15.5 The execution, delivery and performance by Client of the Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Client is subject; (b) any order, judgment or decree applicable to Client; (c) any provision of Client’s corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Client;

15.6 Client’s performance under the Agreement, the Offers, Affiliate Network, Affiliate Network Products, Advertiser Websites and Publisher Websites, and any and all material featured and/or linked to therein, will not: (a) invade the right of privacy or publicity of any third person; (b) involve any libelous, obscene, indecent or otherwise unlawful material; (c) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (d) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.

15.7 The Offers and any and all other information posted by Client to the CAKE Basic Platform will comply with the provisions of Section 6.1, and Client will be solely responsible for the material and Offers that appear in their Affiliate Network.

15.8 There is no pending or, to the best of Client’s knowledge, threatened claim, action or proceeding against Client regarding breach of any Agreement with material terms similar to those of this Agreement.

15.9 With respect to the third-party fraud detection and fraud scoring tools, Client understands that CAKE makes no warranties or representations as to the accuracy of the results, and CAKE encourages all Clients to conduct full due diligence on potential affiliates and to actively manage their networks to most effectively prevent, detect and eliminate fraudulent activity.

16. CAKE Warranties and Disclaimers

16.1 CAKE hereby represents and warrants to Client that: (a) CAKE has the full legal right, power and authority to enter into and perform this Agreement; (b) upon accepting Client’s Application, this Agreement has been duly and validly executed and delivered by the Parties and constitutes CAKE’s legal, valid and binding obligation which is fully enforceable against CAKE in accordance with its terms; and (c) CAKE understands and agrees that Client may enter into similar agreements with other tracking companies in direct competition with Client; and (d) CAKE will use reasonable efforts to cure any defects in the operation or functionality of any software provided to Client as part of the CAKE Basic Platform, site, tracking codes and/or associated products and/or services (collectively, the “CAKE Products and Services”) that have been brought to CAKE’s attention, but CAKE EXPLICITLY DISCLAIMS ANY WARRANTY THAT ANY SUCH DEFECT IN THE CAKE PRODUCTS AND SERVICES WILL ACTUALLY BE CURED OR CORRECTED.

16.2 TO THE FULLEST EXTENT PROVIDED FOR BY LAW, THE CAKE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SUBJECT TO SECTION 16.1, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). CAKE SPECIFICALLY DISCLAIMS ANY WARRANTY TO YOU THAT YOUR USE OF THE CAKE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE FREE OF BUGS, ERRORS, PROBLEMS, INTERRUPTIONS, OR OTHER LIMITATIONS, OR THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE CAKE PRODUCTS AND SERVICES WILL BE ACCURATE OR RELIABLE.

16.3 CAKE MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAKE PRODUCTS AND SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CAKE THROUGH THE CAKE PRODUCTS AND SERVICES OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.

16.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CAKE PRODUCTS AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

16.5 CAKE DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE CAKE PRODUCTS AND SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE CAKE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE CAKE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE CAKE PRODUCTS AND SERVICES WILL BE CORRECTED; OR (e) THE CAKE PRODUCTS AND SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

16.6 Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

17. Limitation of Liability; Sole and Exclusive Remedy

17.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CAKE HAS NO LIABILITY, WHETHER DIRECT OR OTHERWISE, TO CLIENT, ANY AFFILIATE NETWORK CUSTOMER, ADVERTISER, PUBLISHER OR ANY OTHER THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR CLIENT’S USE OF, OR INABILITY TO USE, THE CAKE PRODUCTS AND SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CAKE, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:

a. ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE CAKE PRODUCTS AND SERVICES, EVEN IF CAKE AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;

b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR

c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE CAKE PRODUCTS AND SERVICES.

17.2 THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CAKE AND CLIENT. THE CAKE PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO CLIENT WITHOUT SUCH LIMITATIONS TO THE FULLEST EXTENT OF SUCH APPLICABLE LAWS.

17.3 UNDER NO CIRCUMSTANCES SHALL CAKE BE LIABLE TO CLIENT, AFFILIATE NETWORK CUSTOMERS, PUBLISHERS, ADVERTISERS OR ANY OTHER THIRD PARTY IN ANY MANNER WHATSOEVER ARISING FROM CLIENT’S PARTICIPATION IN THE CAKE Basic PLATFORM. CAKE’S MAXIMUM AGGREGATE LIABILITY TO CLIENT AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). CLIENT ACKNOWLEDGES AND AGREES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.

18. Publicity and Announcements

The Parties intend to make a good faith effort to jointly and independently promote their relationship as service-provider/client through press releases, websites and related media (collectively, the “Promotion”), and such Promotion may include not just the Client and CAKE brands but also those of CAKE’s other clients using the CAKE Basic Platform. The Parties will use best efforts to coordinate any such Promotion and shall notify each other of any planned Promotion relating to this Agreement and the services described herein. The Parties acknowledge that the consent of the other Party is required prior to any use of the other Party’s marks, rights, images or copyrighted materials. Notwithstanding the foregoing, Client herein agrees that Client has given CAKE such consent to use Client’s trademark and/or logo on its website for the sole purpose of listing Client as a client of CAKE, and that any Termination of this Agreement, with thirty (30) days’ notice, will serve to rescind such consent by Client for any use by CAKE of Client’s trademark and/or logo. Client shall not create, publish, distribute or permit any written material that makes reference to CAKE without first submitting such material to CAKE and receiving prior written consent from CAKE, which CAKE may withhold in its sole discretion; provided, however, that Client can promote its content and/or its Affiliate Marketing Channel by publishing and promoting the Uniform Resource Locator (“URL”) associated with the applicable content and/or Affilite Marketing Channel in accordance with any and all applicable state and federal laws, statutes, rules and regulations.

19. Collection and Use of Data

19.1 Any personal information that CAKE collects about you will be processed in accordance with our Privacy Policy. To find out more about the data CAKE collects and how it is used, please refer to the Privacy Policy available here:https://getcake.com/privacy-policy/.

19.2 CAKE does not collect information about a Client’s Affiliate Network-related transactions, other than what it receives directly from Client or through the installed tracking codes. CAKE reserves the right to utilize this data on a non-personally identifiable, aggregate basis, which may include Client’s information, to analyze the performance of the CAKE Basic Platform and/or Site, monitor the use of the tracking codes and promote CAKE Basic Platform and/or Site performance and functionality. Client grants us a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use such non-personally identifiable information in connection with the creation and development of analytical and statistical analysis tools relating to the use of the CAKE Basic Platform (the “Analytical Data”). CAKE is expressly authorized to make any commercial use of the Analytical Data, including without limitation, sharing the Analytical Data with third parties, provided that Cake does not sell, trade, or otherwise transfer from us any part of the Analytical Data that personally identifies Client. When Client’s account is disabled, inactive or paused, including for non-payment, CAKE reserves the right to utilize Client’s personally identifiable information for their advertisers and affiliates.

20. Indemnification

Client agrees to indemnify, defend and hold CAKE, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any claim related to: (1) Offers, Advertiser Websites, Publisher Websites, Affiliate Network Products and any and all other information, products and/or services posted, made available and/or linked to in connection with the Offers, Advertiser Websites, Publisher Websites and/or Client’s participation in the CAKE Basic Platform; (2) any act or omission of any Publisher, Advertiser and/or Affiliate Network Customer; (3) Client’s breach of the Agreement and/or any representation or warranty contained herein; (4) Any claim that CAKE is obligated to pay any taxes in connection with Client’s participation in the CAKE Basic Platform; (5) Client’s participation in the CAKE Basic Platform in any manner whatsoever and/or (6) any dispute between Client and Advertiser, Publisher or other third party.

21. Binding Arbitration

Arbitration Procedures. You and CAKE agree that, except as provided in Section 21.4 below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 21 and the JAMS Rules, the terms in this Section 21 will control and prevail.

Except as otherwise set forth in Section 21.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and CAKE will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (a) you and CAKE may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CAKE WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

21.2 Location. The arbitration will be conducted in the County of Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.

21.3 Limitations. You and CAKE agree that any arbitration shall be limited to the Claim between CAKE and you individually. YOU AND CAKE AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

21.4 Exceptions to Arbitration. You and CAKE agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or CAKE’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

21.5 Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

21.6 Severability. You and CAKE agree that if any portion this Section 21 is found illegal or unenforceable (except any portion of Section 21.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 21.4 is found to be illegal or unenforceable then neither you nor CAKE will elect to arbitrate any Claim falling within that portion of Section 21.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and CAKE agree to submit to the personal jurisdiction of that court.

22. Electronic Signatures

By clicking on the “submit” button, or such similar links as may be designated by CAKE as a means of accepting the Agreement, you acknowledge and agree that you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE 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 AND/OR SERVICES OFFERED BY CAKE. Further, you hereby waive any rights or requirements under any 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.

23. This Agreement Governs

23.1 English Language. Where CAKE has provided you with a translation of the English language version of this Agreement, you agree that the translation is provided for your convenience only and that the English language versions of this Agreement will govern your relationship with CAKE. If there is any disparity between the English language version of the Agreement and the translated version provided for your convenience, the English language version shall control.

23.2 Other. To the extent that anything in or associated with the Site, CAKE Basic Platform, CAKE Privacy Policy, or any other applicable CAKE operating rules, policies, price schedules and other supplemental terms and conditions or documents, is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

24. Miscellaneous

24.1 Amendments. This Agreement may only be revised in a writing signed by CAKE, or published by CAKE through the Site or CAKE Basic Platform.

24.2 No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and CAKE as a result of this Agreement or your use of the Site or the CAKE Basic Platform.

24.3 Assignment. CAKE may assign its rights under this Agreement to any person or entity without your consent. The rights granted to you under this Agreement may not be assigned without CAKE’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.

24.4 Governing Law. The Agreement, and your relationship with CAKE under this Agreement, shall be governed by the laws of the State of California without regard to its conflict of law provisions. Subject to Section 20, you and CAKE agree to submit to the exclusive jurisdiction of the courts located within the county of Los Angeles, California to resolve any legal matter arising from the Agreement.

24.5 Force Majeure. Both parties agree that neither party will be liable, or be considered to be in breach of the Agreement, on account of either party’s delay, or failure (other than for payment obligations arising hereunder), to perform as required under the terms of the Agreement.