Castmagic Affiliate Publisher Services Agreement
Last Modified: November 28, 2023
Hey Castmagic partners! This Agreement governs the relationship between Castmagic., a Delaware corporation ("Castmagic", “we”, “us”, or “our”), and you (“Affiliate”, “you” or “your”), with respect to the advertising service (the "Service") offered through www.Castmagic.io (the "Site" or “Marketplace”) and the service owned and operated by PartnerStack, Inc. (“PartnerStack”) (together, the Site and PartnerStack are the “Platform”). To be clear, both an affiliate network of third-parties (an “Affiliate Network”) and any of such Affiliate Network’s affiliates are an “Affiliate” under the terms of this Agreement. An Affiliate Network specifically agrees that it shall at all times ensure that its affiliates comply with the Agreement and that it shall be liable for the actions and omissions of its affiliates. Finally, Affiliate and Castmagic may also be individually referred to herein as "Party" and collectively as "Parties.”
Please read the entire agreement because your participation in Castmagic’s affiliate programs binds you to all the terms of this Agreement but (not to be too negative) here are some important examples of what you cannot do when you participate in our affiliate program (not that you would, or course):
- Promoting with a coupon code that Castmagic has not authorized you to use.
- Promoting products in ways that competes, or interferes, with Castmagic marketing efforts or are misleading to consumers.
- With Google Search, bidding on Castmagic brand terms and any phrase match variation using the brand terms “castmagic", "cast magic", "castmagic.io", "cast magic io"
- Promoting with creative that is against brand guidelines outside of approved logos creative in the resources of PartnerStack dashboard.
- Suggesting in your ad copy that it is coming from Castmagic.
- Targeting audiences of current or past Castmagic customers, including through Castmagic's email lists or social groups or pages on platforms such as Facebook, Instagram, Twitter, Reddit, Quora, and LinkedIn).
- Targeting audiences other than entrepreneurs and businesses related to content marketing or automation.
By using our tool, affiliate codes, or otherwise participating in our affiliate programs, you agree to the terms of this Agreement, our Terms of Use, and our Privacy Policy. If you do not agree to the terms of each of those agreements, you cannot register as an Affiliate; use the Service; or access the Platform. If you participate in the Service on behalf of an entity, whether it is the company you work for directly or indirectly (this includes if you are an affiliate of another affiliate, for example), you agree that you have the authority to do so and are deemed to have accepted this Agreement on behalf of such entity.
In consideration of the mutual covenants and agreements contained herein, the Parties, intending to be legally bound, hereby agree as follows:
1. Participation in Advertiser Programs.
a. Advertising Programs. Castmagic uses the Platform for its affiliate marketing program. An affiliate marketing program ("Advertiser Program") is a campaign in which an Affiliate or its agent used one or more media channels, including websites (domain or portion of a domain within the Internet as may be accessed by URLs), social media pages, blogs, video channels, groups and/or subscription emails (each, an “Affiliate Medium”) to earn financial compensation ("Affiliate Fees") for sales generated ("Transactions") from such Affiliate Medium through a purchase made by a customer ("Customer") on the Site.
b. Castmagic Promotions. Castmagic may establish and offer Advertiser Programs in connection with Castmagic’s own promotional efforts. One such Advertiser Program is Castmagic’s Self Listing Partner Referral Program through which Castmagic shall pay flat- fee Affiliate Fees to an Affiliate that causes a product owner to have its product listed on the MarketPlace. The terms and conditions applicable to the Self Listing Partner Referral Program shall be set forth in an Electronic Insertion Order (as defined below), but do keep in mind that (i) the product listed must be an original product submitted by the owner of the product; (ii) the Affiliate Fees paid will vary dependent upon the product category; and (iii) Castmagic has sole discretion in determining whether a product owner can list its product on the Castmagic Marketplace.
c. Accessing Advertiser Programs. Affiliate may apply to Advertiser Programs for the opportunity to earn Affiliate Fees by promoting Castmagic and other Advertising Programs, as may be available from time to time, in accordance with the applicable Advertiser Program terms and this Agreement. Castmagic may at its sole discretion deny an Affiliate’s application to Advertiser Programs, terminate or suspend an Affiliate’s access to the Advertiser Programs or the Platform, or terminate this Agreement. If approved by Castmagic for acceptance into an Advertiser Program, Affiliate may use the Platform in accordance with the applicable terms of the Advertiser Program and this Agreement.
d. Electronic Insertion Orders. Castmagic from time to time may post to the Platform an electronic insertion order (“Electronic Insertion Order” or “EIO”) setting forth the terms and conditions of an Advertiser Program, including those in connection with Transactions, Affiliate Fees, qualifying parameters, and maximum spend limits and caps on the amount of Affiliate Fees may be earned. EIOs become legally enforceable rights and obligations binding on the Parties upon acceptance. Castmagic can, at any time, for any reason, and without notice, terminate, suspend, or modify an EIO, including a modification to Affiliate’s commission structure and Affiliate Fees. PartnerStack shall not be a party to the Agreement and/or EIOs, and the terms of the EIOs are strictly between Castmagic and Affiliate. Any conflict between provisions of this Agreement and provisions of the applicable EIO shall be resolved in favor of the provisions of the EIO. Please print a copy of EIOs for future reference.
e. Grants to Affiliate. In connection with each Advertiser Program for which Affiliate’s participation has been authorized by Castmagic, Castmagic grants to Affiliate the right to link to the Site or web offers and earn Affiliate Fees in accordance with the Advertiser Program terms in the applicable EIO and this Agreement. Furthermore, subject to this Agreement and the terms of the applicable Advertiser Program and the duration of each EIO, Castmagic grants to Affiliate a revocable, non-transferable, royalty free, license to use the Site, and the Creative supplied by Castmagic Castmagic reserves any and all rights not explicitly granted in the Agreement.
2. Affiliate Requirements and Restrictions.
a. Registration. To use the Site and Platform as an Affiliate, you must provide Castmagic with truthful, accurate and complete registration information, including information you provide concerning all Affiliate Mediums that you intend to use. If any such information changes, you must immediately contact Castmagic to update your registration information.
b. Multiple Accounts. Affiliates may not create multiple accounts on the Platform. For example, an Affiliate may not purchase on behalf of others products on the Site using more than one account on the Platform. Leveraging multiple accounts may result in the suspension of any and all accounts used by Affiliate.
c. Valid Information. Affiliate agrees to maintain and provide Castmagic with valid information about Affiliate and Affiliate's promotional methods, including account and contact information, Affiliate Mediums to be used, URLs used by Affiliate (including URLs of all of your affiliates, if you are an Affiliate Network) that you shall include in the profile section in the Platform, and any other information requested by Castmagic or a Partner (“Registration Information”). Castmagic has the right to confirm and check the truth and accuracy of any Registration Information at any time. Please note that the verification of your registration information, specifically, name, address and tax identification number, against third-party database(s) may be considered under certain laws to constitute a "credit check" and you hereby consent to any such verification process. Notwithstanding that, your participation in the Services does not depend on your credit worthiness or financial stability. If any Registration Information is determined by Castmagic to be missing, misleading, inaccurate, or untruthful, or in any way negatively impacts Castmagic, Castmagic may (i) suspend or terminate your account and your access and use of the Services, Platform and the Site; (ii) revise the terms of any EIO (for example, to disable and deny payment in connection with certain Affiliate Mediums or URLs); and (iii) clawback any benefits derived from your participation in any Advertiser Program, including the withholding or forfeiture (in whole or in part) of any Affiliate Fees.
d. Legal Compliance. Affiliate agrees that it shall comply with all laws and regulations and will not engage in spamming, unlawful mass emailing or any unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003, 15 U.S.C. 7701, et seq., as amended, or any comparable laws (including, but not limited to, the California version of CAN-SPAM), rules or regulations in any country from or to which Affiliate is accessing the Site, Platform or the Services or participating in any Advertiser Program, that govern email marketing and advertising. Affiliate agrees that it shall operate its Affiliate Mediums and publish Creative (defined below) in compliance with the Federal Trade Commission’s (“FTC”) guidance, including the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, and the FTC’s Enforcement Policy Statement Concerning Deceptively Formatted Advertisements and Native Advertising Guide for Businesses.
e. Personally Identifiable Information of Visitors. Affiliate represents and warrants that Affiliate will not enable the tracking code to collect personally identifiable information (including, but not limited to, email addresses) of Customers or potential Customers that would allow for the identification of such Customer or potential Customer.
f. Privacy Policies. You will ensure that any and all websites that are used by you in connection with your participation in any Advertiser Programs will feature an easy-to-understand privacy policy, linked, at a minimum, conspicuously from such website's home page, with a link that contains the word "Privacy", "Legal", "Terms" or similar language. Such privacy policy shall, in addition to the disclosures about your privacy practices, identify the collection, disclosure and use of any information related to an end user that you provide, or may provide, to Castmagic or other websites or persons. Such privacy policy shall also provide information on your use of tracking technologies, such as cookies, including tracking technologies enabled by Castmagic at your request or on your behalf. The website you use must also include, where required, information regarding the removal of cookies and other tracking technologies.
g. Standards. Affiliate represents and warrants that all promotional means utilized by Affiliate (including, but not limited to, communications sent or posted via the Affiliate Mediums) do not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses, any confidential information or any other personally identifiable information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements you make are endorsed by Castmagic and/or a Partner, without Castmagic's and Partner's express prior written consent; (ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money); (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) 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; (xv) 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 or servers on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM or any similar or comparable laws in any other country or jurisdiction in which you operate; (xxi) any illegal activity whatsoever (including any violations of U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other country or jurisdiction in which you operate); or (xxii) in any way disparage Castmagic or its Partners. Castmagic may review Affiliate information, conduct and any suspected fraudulent, abusive or otherwise illegal content or activity. Any validated breach of this Section 2 is grounds for immediate termination of this Agreement, forfeit of Affiliate Fees, and deactivation of Affiliate's account.
h. Promotional Method Restrictions.
(i) Intellectual Property Rights. Affiliate represents and warrants that its promotional activities will not infringe on Castmagic’s or its Partner's intellectual property rights, including but not limited to copyright and trademark rights. Affiliate shall not create or use any Affiliate Mediums on behalf of Castmagic that use the Castmagic or Partner’s trademark(s), brands, or brand elements, without Castmagic’s written permission. Affiliate may use Castmagic or Partner’s name to describe the the product in a factual manner. Castmagic reserves the right to withhold, refuse or withdraw approval of any Affiliate Mediums or other marketing channels for any reason, whatsoever, in Castmagic's sole discretion.
(ii) Restricted Names. Affiliate shall not use Castmagic or Partner’s name, or any variation thereof (the “Restricted Names”), in any manner not expressly authorized by this Agreement. To be clear, Affiliate may NOT purchase domain names that have the Restricted Names, variations thereof, or misspellings in them; Affiliate may NOT use the Restricted Names, or any variation thereof, in hidden text or source code; Affiliate may NOT use the Restricted Names, or any variation thereof, in its domain or sub-domain; Affiliate may NOT purchase any keywords on search sites related to the Restricted Names or any variation thereof. Affiliate may NOT engage in any paid advertising that prominently displays the Restricted Names, trademarks, brands, or brand elements of Castmagic or Partners.
(iii) Search Engine Optimization. Affiliate shall not compete, or otherwise interfere, with any search engine marketing efforts of Castmagic or its Partners. To be clear, Affiliate may NOT engineer its site in such a manner that pulls Internet traffic away from Castmagic.com, Briefcasehq.com, or a Partner’s website; Affiliate may NOT engineer its site in such a manner that would be considered "keyword stuffing," such as using terms in hidden or live text that is meant to attract search engine spiders in order to determine higher relevancy to Castmagic.com, briefcasehq.com, or a Partner’s website.
(iv) Paid Search. Affiliate shall not compete, or otherwise interfere, with any paid search marketing efforts of Castmagic or its Partners. To be clear Affiliate shall not
(a) perform bidding on any match variation of the brand name keyword "Castmagic" or any brand name of any existing or past Castmagic Partner (whose products are or were listed on Castmagic.com) for any search engine ads;
(b) use paid search ad copy purporting to come from Castmagic or is in any way misleading users as to your promotion of Castmagic products;
(c) target ads to audiences comprising current or past Castmagic customers, including those customers that (i) are members of Castmagic's social groups or pages on platforms such as Facebook, Instagram, Twitter, Reddit, Quora, and Linkedin or (ii) have joined Castmagic’s email lists; or (d) target ads to audiences that are not in line with Castmagic’s intended audiences.
(v) Email Marketing. Affiliate shall not use cold emailing or spamming for any marketing campaigns associated with an Advertiser Program, unless user consent was given pursuant to applicable privacy laws such as CAN-SPAM.
(vi) Creative. Affiliate shall not alter, modify or otherwise change the creative content, links and code used to create the advertisements, text link, banner ad or coupon ("Creative"), or any Creative-related feature, that it obtains access to in connection with any Advertiser Program in any manner whatsoever, without Castmagic's prior express written consent. Except in connection with its operation of Affiliate Mediums, Affiliate shall not disclose Creative to a third party.
(vii) Tags. Site integration tags and tracking pixels ("Tags") included in the Creative or otherwise incorporated may not be altered under any circumstances. Altering, removing or disabling Tags is grounds for immediate termination of this Agreement and applicable EIOs, without notice to you, and you shall forfeit all fees to which you may otherwise be owed. You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames , redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Transaction.
(viii) Use of Site, Platform and Services. You may not use the Site, Platform or the Service in connection with aggregating, soliciting or recruiting Partners, other affiliates, other sites or other persons to form or join a marketing, advertising or similar network.
(ix) Coupon code. Affiliate shall not promote with a coupon code that has not been assigned to Affiliate on the Platform.
(x) Prohibited Media Properties. Affiliate shall not use the following types of Affiliate Medium in connection with any Advertising Program: (a) spam sites; (b) coupon aggregators; or (c) buy/sell facilitators. Castmagic reserves the right to access and be added to any private sites or groups where Castmagic affiliates are promoting. Only Affiliate Mediums that have been reviewed and approved by Castmagic may be utilized in connection with the Site, Platform, or Service.
3. Affiliate Fees.
a. Tracking Affiliate Fees. Advertiser Program data compiled by Castmagic including, but not limited to, numbers and calculations regarding Transactions and associated Affiliate Fees ("Program Data"), will be calculated by Castmagic through the use of PartnerStack tracking software and shall be final and binding on you. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by you. Affiliate understands and agrees that on occasion the Service, the Platform, and the Site may be inaccessible, unavailable or inoperable. Castmagic will attempt to provide the Service on a continuous basis, but is under no obligation to provide the Service or maintain the availability of the Site on a continuous or uninterrupted basis. Castmagic's failure to deliver the Service despite its efforts does not represent a failure to meet the obligations of this Agreement.
b. Access to Tracking and Reporting Tools. Castmagic shall provide Affiliate with access to tracking and reporting tools via the Platform, and to other various support services that may be updated from time to time.
c. Payment of Affiliate Fees.
(i) Payout. Subject to other provisions in this Agreement and unless otherwise stated in an EIO, all tracking and payment processing facilities in relation to the tracking of Transactions and Affiliate Fees shall be provided through PartnerStack. PartnerStack shall aggregate payments due from Castmagic to the Affiliate and make payments to the Affiliate in accordance with the payout rate agreed to in each EIO. Castmagic shall have no obligation to make payment of any Affiliate Fees in connection with Transactions for which all payment due Castmagic has not been finalized or “cleared.” All Affiliate Fees will be paid in US Dollars ($US).
(ii) Threshold. Notwithstanding anything contained herein to the contrary, no Affiliate Fees will be issued for any amounts due to Affiliate that total less than one hundred dollars ($100.00) ("Payment Threshold"). Upon termination of this Agreement, all Affiliate Fees due to Affiliate that were actually collected, even amounts below the Payment Threshold, will be paid during the next billing cycle. If Castmagic suspects that Affiliate has earned Improper Fees (as defined below), Castmagic may delay payment of Affiliate Fees until it completes its review of the suspected Improper Fees.
(iii) Chargebacks. A Transaction can be canceled or returned by a Partner or Castmagic (“Chargeback”) if: (a) the Transaction is incomplete; (b) if a Customer has canceled or returns a Transaction; (c) if the Transaction has been made fraudulently or in an otherwise non bona fide manner; (d) if the Transaction is carried out by a person who is outside the area serviced by the applicable Partner; (e) if the applicable Partner is unable to ship goods to a customer in relation to the Transaction or (f) there is any failure on the part of the Affiliate to comply with this Agreement and/or the terms of the applicable EIO. Each EIO may state the period of time within which a Partner or Castmagic may apply a Chargeback. If no such period is stated, then the default period shall be seventy (70) days.
(iv) Fraud / Breach of Terms. Castmagic monitors traffic, Transactions, Affiliate Fees and other Advertiser Program-related activities for Affiliate Fees generated by (a) engaging in fraudulent activity; (b) breach of the terms of this Agreement
If Castmagic suspects that your account has been used to generate Improper Fees, your account may be deactivated effective immediately and without notice to you, pending further investigation. Castmagic shall in its sole judgment determine whether you generated Improper Fees, and you agree to be bound by any and all such determinations. It is the obligation of Affiliate to prove to Castmagic that it has NOT engaged in fraud or earned Improper Fees. If, within seven (7) days of your Affiliate Fees being placed in "Pending or Delayed Status" you have not provided Castmagic with evidence satisfactory to Castmagic that Affiliate has not generated Improper Fees, then Castmagic may terminate your account and cancel payments in connection with Improper Fees. Castmagic shall have no further obligations to you. For the avoidance of doubt, if you add Transactions, or inflate Transactions, through the use of fraudulent means of traffic generation, as determined solely by Castmagic, you will forfeit all of the Affiliate Fees related to that Advertiser Program, and your account may be terminated effective immediately. If Castmagic discovers any previously paid Improper Fees, then upon three (3) days’ prior written notice (i) Affiliate shall pay to Castmagic an amount equal to the Improper Fees and (ii) Castmagic may reduce any Affiliate Fees currently owed to Affiliate by such amount. Castmagic’s aforementioned notice shall set forth the amount of Improper Fees previously paid to Affiliate.
(v) Taxes. Every Affiliate must have a unique, valid taxpayer identification number, valid Social Security Number, or other applicable unique government identification. Affiliate shall be responsible for all applicable taxes or applicable Paypal fees. Affiliate shall provide Castmagic with a recently executed W-9 or W-8-BEN (as applicable) at least once a year. Castmagic may withhold payment of some or all Affiliate Fees until a recently executed W-9 or W-8-BEN (as applicable) has been provided by Affiliate.
4. Confidentiality and Early Access Information.Each Party will take commercially reasonable actions designed to protect the Confidential Information of the other Party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. The receiving Party may disclose Confidential Information of the disclosing Party to the extent necessary to comply with applicable law. Upon request of the other Party, or in any event upon any termination or expiration of this Agreement, each Party will return to the other or destroy all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other Party. This Agreement and the terms herein and in any EIOs shall be the Confidential Information of Castmagic. Either Party will be entitled to seek preliminary and/or permanent injunctive relief from any violation or threatened violation of this Section 4 without the necessity of proving actual damages or posting any bond or other security.
"Confidential Information" means all confidential and/or proprietary information and documents furnished or disclosed by or on behalf of a Party or its affiliates, no matter when or how furnished or disclosed. Confidential Information includes, without limitation, (a) all nonpublic information relating to a Party's or its affiliates' technology, business plans, agreements, promotional and marketing activities, finances and other business affairs, and (b) all third party information that a Party or its affiliates is obligated to keep confidential. Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge. Confidential Information does not include any information that (w) has become publicly available without breach of this Agreement, (x) can be shown by documentation to have been known to the receiving Party at the time of its receipt from the disclosing Party or its affiliates, (y) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (z) can be shown by documentation to have been independently developed by the receiving Party without reference to any Confidential Information.
Select Affiliates may be provided with information prior to the disclosure to other Castmagic Affiliates (“Early Access Information”). Affiliates who receive Early Access Information shall not disclose it to any third party until and unless such Early Access Information becomes publicly available without breach of this Agreement. Disclosure of Early Access Information by an Affiliate in violation of this Agreement is grounds for immediate termination of Affiliate’s account and this Agreement.
Notwithstanding the foregoing, Affiliate authorizes Castmagic to use Affiliate's otherwise protected information subject to the provisions of this Section 4 related to confidentiality of Affiliate's identification and marketing data.
5. Notices.
Except as provided elsewhere herein, Affiliate must send all notices relating to this Agreement in writing via email to affiliates@Castmagic.com. All notices from Castmagic shall be sent to the email address submitted by you when you signed up for the Service. Notices of termination of an EIO by Castmagic for convenience shall be made via the Platform or by email.
6. Term.
The Agreement shall commence upon Castmagic's acceptance of your Affiliate application and remain in effect until terminated as set forth in this Agreement. Each individual EIO shall continue until the earlier of: (a) an Affiliate terminating the EIO using the Platform interface; (b) Castmagic terminating an EIO for any or no reason; (c) Castmagic terminating when Partner’s budget has been met; (d) either Party terminating this Agreement or an EIO for breach by the other Party; (e) a Party terminating an EIO during the ‘Change Notification Period’ if the Party does not agree to the other Party’s proposed changes; (f) the date of expiration specified in the EIO; (g) PartnerStack’ removal of Affiliate or termination of the EIO; (h) termination of the agreement between Castmagic and PartnerStack; or (i) Affiliate’s being no longer eligible to use the Platform. An EIO may specify whether there is a cure period for breach prior to termination.
7. Termination.
Either party may terminate this Agreement or an EIO at any time. On the expiration or earlier termination of each EIO:
a. Affiliate shall refund Castmagic any monies in relation to unfulfilled obligations that Castmagic has paid the Affiliate in advance in relation to an EIO;
b. Castmagic shall remain obligated to compensate Affiliate for Affiliate Fees earned prior to expiration or termination of the EIO; notwithstanding the foregoing, Castmagic shall have not obligation to compensate Affiliate for Improper Fees;
c. Affiliate agrees to immediately remove from its Affiliate Mediums any and all Creatives, Castmagic code or other intellectual property made available to Affiliate in connection with its performance under the Agreement;
d. Any licenses and grants made to Affiliate in connection with Creative shall terminate; and
e. each Party shall either destroy or promptly return to the other Party all copies in whatever medium of other’s Confidential Information.
In addition, Castmagic reserves the right, in its sole and absolute discretion, to terminate an Advertiser Program, suspend your participation in an Advertiser Program and/or remove any Creatives at any time for any reason. Castmagic also reserves the right to terminate your access to the Site or Platform at any time. Termination notice may be provided via e-mail and will be effective immediately.
8. Representations and Warranties.
You represent and warrant that you are duly authorized to enter into this Agreement and are over the age of 18. Moreover, you represent and warrant that: (a) your Affiliate website and/or Affiliate e-mails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable); (b) your Affiliate website is not offered as a part of a community-based website personal entry or personal page; (c) your Affiliate website and Affiliate e-mails do not incentivize users to click on Creatives, including by awarding users cash, points, prizes, and/or contest or sweepstake entries or any other incentives ("Incentives"); (d) your Affiliate Website is not hosted by a free service and is fully functional at all times and at all levels (no "under construction" Affiliate Websites or any sections thereof are permissible); (e) you will place or use the Creatives only with the intention of delivering valid Transactions as determined by, and for the benefit of, Castmagic and/or the applicable Partner; (f) you will not violate guidelines of any search engines being utilized; (g) you will not allow the Creatives to be placed on any non-Affiliate website without the prior express written consent of Castmagic; (h) you will not use any Creatives or any other Advertiser Program terms and/or content in connection with aggregating, soliciting or recruiting other Affiliates, Partners, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by Castmagic; (i) you will not redirect traffic to a website other than the Site or use, or cause to be used, tracking pixels with regards to end-users (other than tracking pixels provided by Castmagic or PartnerStack); (j) your performance under this Agreement shall not in any way violate or infringe upon any third party rights, including rights regarding ownership, trade secrets, trademarks, copyright or patents; (k) you shall protect, promote and preserve the goodwill associated with the Castmagic and/or Partner’s respective trade names and any Customer relationships in connection with its performance hereunder; (l) in performing your obligations and exercising your rights under this Agreement, you shall comply with all applicable laws (and all changes in laws) relating to or affecting this Agreement or the work to be performed hereunder, and (m) you shall obtain and maintain all permits, licenses, and consents required in connection therewith.
9. Limitation of Liabilities, Warranties, and Disclaimers.
Castmagic WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO YOU OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER, LOST PROFITS, LOSS OF BUSINESS, DATA OR REPUTATION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT.
Castmagic’S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT WILL IN NO EVENT EXCEED FIFTY PERCENT (50%) OF THE TOTAL FEES PAID OR ACCRUED BY YOU FROM Castmagic THROUGH PartnerStack PURSUANT TO EIOS DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
THE SITE, THE PLATFORM, AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, PLATFORM AND THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Castmagic HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE SITE, PLATFORM OR THE SERVICE. Castmagic DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT AFFILIATE'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE ADVERTISER PROGRAMS WILL BE AVAILABLE TO AFFILIATE. Castmagic SHALL NOT BE RESPONSIBLE FOR THE FAILURE OR OTHER ACTS OR OMISSIONS OF ANY PARTNER.
10. Indemnification.
Affiliate shall indemnify, defend and hold harmless, Castmagic and its respective parents, subsidiaries and affiliates, and each of their respective directors, officers, employees, agents, successors and assigns against any third-party claim, suit, action, judgment, allegations, or lawsuits ("Claims"), for any damages, fines, penalties, deficiencies, losses, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) (collectively "Losses") or any threatened Losses arising from or in connection with (i) Affiliate's breach of this Agreement; (ii) Affiliate’s intentional acts or omissions; or (iii) for Claims of product liability.
Should any Claim give rise to Affiliate's duty of indemnification under this Agreement, Castmagic shall notify Affiliate, and Castmagic shall have the right to assume control of the defense of any such Claim; provided that Affiliate shall reimburse Castmagic for all costs of the defense. If Castmagic assumes the defense, Affiliate shall participate in (at Affiliate's own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Affiliate's obligations to indemnify or hold Castmagic harmless. If Affiliate is permitted to control the defense, Castmagic may participate in the defense. In no event shall Affiliate settle any Claim without the express written consent of Castmagic.
11. Non-Compete / Non-Solicitation of Partners
Affiliate Group (as defined below) agrees that at no time during the term of this Agreement and for one (1) year immediately following the termination of this Agreement will Affiliate Group for itself or on behalf of any other person or business enterprise, engage in any business activity which competes directly with Castmagic. This prohibition also extends to engaging in a directly competitive business activity whether as a as an employee, employer, owner, operator, manager, advisor, consultant, contractor, agent, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity to an entity engaged in the same or similar business.
During the term of this Agreement and for a period of one (1) year thereafter, Affiliate Group shall not, without prior written consent of Castmagic, directly or on behalf of any other person, entity or business enterprise, contact or solicit any Partner for the purposes of creating similar or competing products.
For the purposes of this section, the term “Affiliate Group” shall refer to the Affiliate, its agents, and any entity or person under common control with, controlled by, or which controls, Affiliate. Reference in this Agreement to Affiliate Group shall refer to all the members of Affiliate Group or singular members of Affiliate Group, as appropriate.
12. Severability, Waiver, Remedies Cumulative.Any provisions of the Agreement or an EIO which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement or the applicable EIO or affecting the validity or enforceability of such provision in any other jurisdiction. A Party's waiver of any term or condition of this Agreement or an EIO shall not be deemed a continuing waiver. The rights set forth in this Agreement and EIOs are cumulative and in addition to those otherwise provided by law and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
13. Assignment.
Neither Party shall assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, and any such assignment without consent shall be void, provided that Castmagic may, without notice to the other Party, assign or transfer this Agreement, in its entirety only, to an affiliate or wholly owned subsidiary capable of performing its obligations hereunder or to an entity acquiring all or substantially all of its operating assets.
14. Jurisdiction and Venue.
The Agreement shall be construed, governed and enforced under and in accordance with the internal laws of the state of Texas. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or with respect to this Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the rules and regulations of that Arbitrator. Arbitration shall take place in Austin, Texas.
15. Force Majeure.
Castmagic shall not be liable to Affiliate by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of Castmagic.
16. Relationship of the Parties.
In making and performing this Agreement, the Parties are acting and shall act as independent contractors, and neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
17. Entire Agreement; Conflicting Terms.This Agreement and the EIOs constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous, negotiations, representations, agreements or understandings with respect thereto, whether written or oral. In the event the terms of this Agreement conflict with the terms of any agreement between you and PartnerStack, the terms of this Agreement shall govern.
18. Electronic Signatures.
You acknowledge and agree that, by clicking through acceptance of this Agreement, EIOs and other click through offers from the other Party on the Platform, you are submitting a legally binding electronic signature and are entering into a legally binding contract. 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 PLATFORM. Further, you 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 nonelectronic records, or to payments or the granting of credits by other than electronic means.
19. Survival.
The representations, warranties and those obligations that by their terms and context show the Parties intended them to survive the termination of this Agreement for any reason, including provisions governing confidentiality, ownership, indemnification and liability, shall survive the expiration or earlier termination of this Agreement.
20. Support.
Support for Affiliate's program is available by contacting Castmagic at ramon@Castmagic.com.
21. Changes.
Castmagic reserves the right to make changes to the Site, Service, Platform, and this Agreement at any time. A revised version of the Agreement shall become effective after 30 days of being posted on the Site. Following such 30 day period, your continued use of the Site, Platform, or Service after any such revision shall constitute your consent to such revision.