affiliate terms

splashy sand Affiliate Program Terms and Conditions
Last Updated: August 1, 2024

By participating in the splashy sand™ (“splashy sand”, “we”, “our”, or “us”) Affiliate Program (the “Program”), as further described at http://www.splashysand.com/pages/affiliate-terms (the “Program Description”), you are agreeing to be bound by the following terms and conditions of these splashy sand Affiliate Program Terms and Conditions (together with the Program Description, this “Agreement”). This Agreement is between you and splashy sand. “You” or “your” means the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
YOU MUST READ ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND splashy sand’S PRIVACY POLICY LOCATED AT https://splashysand.com/pages/privacy-policy (“PRIVACY POLICY”) IN ORDER TO BECOME A PROGRAM PARTICIPANT (“PARTICIPANT”). BY CLICKING “I ACCEPT” OR OTHERWISE INDICATING YOUR ASSENT TO THIS AGREEMENT AND/OR BY PARTICIPATING IN THE PROGRAM OR USING AN AFFILIATE LINK (AS DEFINED BELOW) OR AFFILIATE CODE (AS DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT AND YOU (I) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT AND OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE, AND (II) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE AN AFFILIATE LINK OR AFFILIATE CODE OR OTHERWISE PARTICIPATE IN THE PROGRAM.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and splashy sand have against each other are resolved (see Section 13 (Limitation of Liability), Section 16 (Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER), and Section 17.b. (Governing Law; Venue) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 16.j. Unless you opt-out: (A) you will only be permitted to pursue claims against splashy sand on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary, injunctive, and declaratory relief) on an individual basis.
Definitions. Any terms defined in the preamble to this Agreement shall have the same meaning in the remainder of this Agreement. Additionally, as used in this Agreement, the following terms shall have the meanings set forth below:
“Affiliate Code(s)” means the identifying code provided by splashy sand to be used by Customers at checkout to give a Participant credit for directing such Customer to the splashy sand website to purchase Products.
“Affiliate Link(s)” means the Participant-identifying web link or links provided by splashy sand to be used to direct Customers to the splashy sand website to purchase Products.
“Affiliate Link Attribution Period” means the amount of time that splashy sand will associate a Qualified Customer with you after that Qualified Customer uses your Affiliate Link to access the splashy sand website. The length of the Affiliate Link Attribution Period is set forth in your Program Participation Confirmation.
“Commission” means the amount resulting from multiplying the commission percentage set forth in the Program Description (the “Commission Percentage”) against the amounts actually collected by splashy sand from bona fide purchases of Products made by a Qualified Customer during the Commission Period for such Qualified Customer, less all applicable taxes, duties, levies, shipping expenses, insurance, credits, discounts, refunds, allowances or discounts granted to the Qualified Customer and other costs associated with the distribution of the Products. In no event will Commissions be earned for any Disqualifying Activities (as defined below). To the extent applicable, if a Qualified Customer purchases a subscription to recurring orders for Products instead of a single order for Products, then the Commission shall be the amount resulting from multiplying the Commission Percentage against the amounts collected for the first order of Products only.
“Commission Period” means the time period during which a Qualified Customer’s purchases of Products may be counted toward your Commission. The length of your Commission Periods is set forth in your Program Participation Confirmation.
“Customer” means a customer of, or a potential customer directed to, splashy sand.
“Marks” means splashy sand’s registered and unregistered trademarks and service marks.
“Program Participation Confirmation” means your specific Program details provided to you by splashy sand on its affiliate tracking platform, including the length of the Commission Period and Affiliate Link Attribution Period. Your Program Participation Confirmation may be updated by splashy sand in splashy sand’s sole discretion upon written notice.
“Products” means splashy sand’s products and services.
“Qualified Customer” means a unique, bona fide Customer that uses your Affiliate Code or Affiliate Link to access the splashy sand website and that purchases Products from the splashy sand website during the applicable Affiliate Link Attribution Period.

Changes to the Agreement. splashy sand reserves the right to update and change the Agreement by emailing updates and changes. If we make a material change to this Agreement, we will notify you by email or through your account. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING SPLASHY SAND’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE SPLASHY SAND WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE OR MODIFICATION.

Accounts; Third-Party Providers.
Account Registration. Before participating in the Program, you must register with splashy sand and create a Program account with Shareasale (your “Account”). We reserve the right to refuse participation in the Program to any person for any or no reason. You may only register a single Account. If and when you register with or provide information to splashy sand, you agree to: (a) provide accurate, current, and complete information as prompted (including your email address) and (b) maintain and update your information (including your email address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your participation in the Program. By providing splashy sand with your email address or other contact information, you consent to our use of this information to send you Program-related notices and other administrative notices, including any notices required by law.
Account Activity. You are solely responsible for the activity that occurs on your Account. You must keep your Account credentials (including username and password) secure at all times. You must notify splashy sand immediately of any breach or suspected breach of security or unauthorized use of your Account.
Third-Party Account. splashy sand uses a third-party service provider (“Third-Party Provider”) to process and manage your Account. splashy sand does not have or maintain any control over the Third-Party Provider and is not and cannot be responsible for their content, operation, or use of any websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services made available to you by the Third-Party Provider (“Third-Party Services”), including the operation or use of your Account. The Third-Party Provider may have their own terms of use and/or privacy policy and may have different practices and requirements than splashy sand with respect to your Account. You are solely responsible for reviewing any terms of use, privacy policy or other terms governing your relationship with the Third-Party Provider and you use all Third-Party Services at your own risk. You agree to make reasonable inquiries before entering into any transaction, financial or otherwise, and whether online or offline, with any Third-Party Provider.
By linking or otherwise providing access to any Third-Party Services, including your Account, splashy sand does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such Third-Party Services.
When using Third-Party Services, you are solely responsible for protecting yourself from fraud and for protecting your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third-Party Services.
splashy sand hereby disclaims any and all responsibility or liability ARISING OR resulting from your use of Third-Party Services, and you hereby irrevocably waive any claim against splashy sand with respect to the content, operation, or use of any Third-Party Services.

Appointment as Participant. Subject to the terms and conditions set forth herein, splashy sand appoints and grants to you a revocable, nontransferable right to act as a nonexclusive Participant to introduce and direct Customers to the splashy sand website to purchase Products. You shall not sell or distribute any of the Products directly to any Customer but will instead direct all Customers to the splashy sand website in accordance with the terms of this Agreement. You shall make no representations, warranties or guaranties to Customers with respect the Products or pricing thereof and shall refrain from engaging in negotiations regarding the Products with Customers on behalf of splashy sand. splashy sand shall have exclusive control over all prices, discounts, specifications, orders and other terms and conditions concerning, and entry into contracts governing, the sale distribution of the Products to Customers; splashy sand shall be under no obligation to sell the Products to Customers directed to the splashy sand website by you and all orders for Products and any changes thereto shall be subject to acceptance, rejection or revocation by splashy sand, in its sole discretion. You shall be solely responsible for all costs and expenses incurred in connection with the performance of your obligations hereunder and the operation of your business.

Participant Obligations and Restrictions.
Affiliate Links and Affiliate Codes. As a Participant, splashy sand shall provide you with your Affiliate Link(s) and/or Affiliate Code(s). The Affiliate Links and Affiliate Codes will serve to identify you and may be accessed through your Account. You agree to cooperate fully with us in order to establish and maintain such Affiliate Links and Affiliate Codes. splashy sand may modify, update, terminate or replace an Affiliate Link or Affiliate Code at any time in its sole discretion and will provide you with notice of any such modification, update, termination, or replacement. You are responsible for using the correct Affiliate Links and Affiliate Codes.
Compliance with Law; Fair Marketing Practices. You represent and warrant that, in performing your obligations under this Agreement, you are and will be in compliance with any and all laws (whether statutory or otherwise), rules and regulations of any jurisdiction in which you do business. splashy sand expects all Customers to be treated fairly, including in any of your marketing, advertising and endorsements, and you hereby agree to do so. You also agree to comply with all laws governing such activity as it relates to the Products, including the FTC’s Endorsement Guidelines. You shall not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to splashy sand or the Products.
Emails and Publicity. You may only send emails containing an Affiliate Link or Affiliate Code and/or a message about splashy sand or the Products to people who have previously consented to receiving such communications from you. Your failure to abide by this Section 5.c, the CAN-SPAM Act of 2003 and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by you and will result in the forfeiture by you of any and all rights you may have to any Commissions and the termination of your participation in the Program.
Non-Disparagement. You shall not, directly or indirectly, during the term of this Agreement or at any time thereafter, disparage or create any negative inference as to the reputation, prestige, value, image or impression of splashy sand, splashy sand Intellectual Property Rights (as defined in Section 11.b) or the Products, by words, actions or other communications, or by any omissions to speak, act or otherwise communicate, or in any other manner whatsoever. You acknowledge and agree that (i) splashy sand is relying on the terms and covenants contained in the immediately preceding sentence as material inducements to enter into this Agreement, (ii) such terms and covenants are reasonable in scope, geography and term, and (iii) such terms and covenants are material terms of this Agreement.
Additional Promotion. splashy sand desires to foster an active community with its Participants to amplify splashy sand’s mission and promote the Products. You agree to cooperate and collaborate with splashy sand in good faith to pursue marketing and publicity for the Products, as approved by splashy sand in each instance. splashy sand shall have the right, but not the obligation, to refer and/or link to you and your website or other communication channels, including your social media accounts, in its marketing materials and other communications.
Restrictions. Violations of restrictions will result in immediate termination from the Affiliate Program. While acting as a Participant and in connection with the subject matter of this Agreement and your performance hereunder, you agree that you will not:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
Publish, post, distribute, use or disseminate any defamatory, infringing, obscene, indecent, or unlawful material or information;
Publish, post, distribute, use or disseminate any content, including social media content, ideas that are discriminatory in nature concerning race, gender, sexuality, religion, national origin, or physical disability.
You may not advertise, or associate splashy sand in any way with:
Sites that promote sexually explicit material or violence.
Sites that promote discrimination based on race, gender, sexuality, religion, national origin, or physical disability.
Sites that promote illegal activities.
Sites or verbiage making medical claims in regards to our products/services (ie. the curing or recession of an ailment)
Political Sites
Upload, use, or otherwise make available, files or material that contain viruses, corrupted files, or any other similar software or programs;
Delete or modify any author attributions, legal notices or proprietary designations or labels;
Falsify the origin or source of any information, communication, message, software or other material that is uploaded, transmitted or otherwise made available or otherwise attempt to mislead any person as to the identity, source or origin of any communication or any act in violation of consumer laws, protections and regulations;
Engage in any activity expressly prohibited in the Program Description.
Distribute any material that you know, or reasonably should know, cannot be legally distributed in such manner; export, re-export or download any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, without all required approvals, licenses and/or exemptions; or
Spawn process pop-ups or exit pop-ups; distribute or permit the distribution of, in any manner, unsolicited electronic mail, “harvest” or otherwise collect personally identifiable or confidential information about third parties without the express consent of such third parties or otherwise violate any applicable government laws or regulations.
Participant Representations and Warranties. You represent, warrant and covenant to splashy sand that:
you have all requisite power and authority to execute, deliver and perform your obligations under this Agreement;
the execution and performance of this Agreement will not violate or constitute a breach of any agreement binding upon you; and
you will conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of splashy sand.
Commission Period Commencement; Attribution. When a Qualified Customer uses your Affiliate Code(s), the Commission Period commences on the date that a Qualified Customer enters your Affiliate Code(s) during the purchasing/checkout process for a Product and remits full payment to splashy sand for such purchase. When a Qualified Customer uses your Affiliate Link, splashy sand uses tracking technology to associate you with that Qualified Customer’s individual Internet browser for the duration of your Affiliate Link Attribution Period. If the Qualified Customer purchases a Product during the Affiliate Link Attribution Period, even if the Qualified Customer reenters splashy sand’s website without using your Affiliate Link, the purchase will be attributed to you and will trigger the start of the Commission Period. The Affiliate Link Attribution Period will restart every time a Qualified Customer clicks on your Affiliate Link. However, your Affiliate Link Attribution Period may be cut short if the Qualified Customer enters splashy sand through a different Participant’s Affiliate Link or provides a different Participant’s Affiliate Code at checkout, in which case the more recent Participant will receive the credit for the purchase.
For example, if a Qualified Customer were to click on your Affiliate Link, splashy sand would associate that Qualified Customer’s Internet browser with you for the duration of the Affiliate Link Attribution Period. Each time that Qualified Customer used your Affiliate Link, the Affiliate Link Attribution Period would restart. If during the Affiliate Link Attribution Period the Qualified Customer were to reenter splashy sand’s website directly (i.e., without following your Affiliate Link) and purchase a Product, the purchase would still be attributed to you and the Commission Period would commence on that date. If, however, that Qualified Customer were to reenter splashy sand’s website through the Affiliate Link of a different Participant, or if the Qualified Customer entered a different Participant’s Affiliate Code upon checkout, the other Participant would receive all credit for the purchase.
Please note that splashy sand may not always be able to correctly associate a Qualified Customer with your Affiliate Link (e.g., if the Qualified Customer uses a different Internet browser or clears all cookies on his or her Internet browser). splashy sand shall not be liable to you for any failure to attribute purchases due to the tracking mechanism that it has chosen.
Subject to your compliance with the terms and conditions of this Agreement, splashy sand shall pay you, and your sole compensation under this Agreement shall be, the Commission. If the Agreement is terminated in accordance with Section 10 for any reason other than your breach of this Agreement, any Commission Periods that are active at the time of termination shall remain in effect for their full length, as provided by splashy sand in accordance with this Agreement. However, if this Agreement is terminated due to your breach, splashy sand shall have no obligation to pay Commissions other than those accrued prior to the termination date. Commissions are payable only for one purchase per Qualified Customer.

For example, assume that in your Program Participation Confirmation, splashy sand provides you with a 45-day Commission Period and also agrees to pay a ten percent (15%) commission on all payments made during the first 45 days of a subscription. If a Qualified Customer uses your Affiliate Link to visit the splashy sand website and places an order for Products on March 1, the Commission Period for that individual shall begin on March 1. splashy sand will pay you the Commission for all Products purchased by such individual (including the first purchase that triggered the Commission Period) through the 90-day Commission Period, or May 30. Further, if on May 30, the Qualified Customer places a new order for Products, your Commission will include a percentage of all payments made for that new order within the 90-day period set forth in your Program Participation Confirmation, even if this technically extends beyond the expiration of the Commission Period. If this Agreement were terminated on April 1 due to your breach, splashy sand would only be required to pay any Commissions earned through April 1. However, if this Agreement were terminated on April 1 for any other reason, splashy sand would pay any Commissions earned through May 30.
Payment of Commission. All payments shall be through a Third-Party Provider, which splashy sand may change from time to time, but which is currently Shareasale. All payments will be subject Shareasale’s payment terms, found here: https://www.awin.com/us/publisher-terms. splashy sand disclaims all responsibility and liability for payments of Commissions and you agree that you will direct any payment-related questions or disputes to Shareasale, and not splashy sand. You expressly acknowledge and agree that payments may be suspended at any time and indefinitely, for suspicious transactions, fraud or other improper activity or a potential breach of any of the terms of this Agreement by you or a Customer (“Disqualifying Activities”), including without limitation, establishing multiple accounts, using robots or scripts to distribute Affiliate Codes and Affiliate Links, promoting Products via paid traffic (including any adword campaign), engaging in any re-targeting advertisement activities, and promoting Products via any discount and/or coupon site, in each case, without written pre-approval thereof.
Term and Termination. The term of this Agreement shall continue in perpetuity unless otherwise terminated in accordance with this Agreement. Either party may terminate this Agreement at any time, with or without cause (i.e., for the other party’s breach of this Agreement or for the terminating party’s convenience), upon notice to the other party. Upon the termination of this Agreement for any reason, (a) any Commissions due and owing at the time of termination of this Agreement shall be paid as provided in Section 9, above, and (b) you shall immediately cease (i) any and all use of the splashy sand Intellectual Property Rights, and (ii) holding yourself out as a Participant. Additionally, splashy sand shall have the right to request that you cease using any Affiliate Link(s) or Affiliate Code(s). The rights and obligations of the parties in Sections 11.b, 11.d and 12 – 17 of this Agreement, as well as under any other provisions which by their nature are intended to survive any such termination, shall survive the termination of this Agreement and continue in force. YOU AGREE THAT IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS, YOU WILL HAVE NO RIGHTS TO DAMAGES OF ANY NATURE RELATED TO SUCH TERMINATION, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ANY RIGHTS TO DAMAGES FOR COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF THE PRODUCTS, OR OTHER COMMITMENTS IN CONNECTION WITH YOUR PERFORMANCE HEREUNDER OR YOUR BUSINESS OR GOODWILL.
splashy sand Intellectual Property.
Use of splashy sand Trademarks. Subject to the terms and conditions of this Agreement, splashy sand grants to you a non-exclusive, limited, non-transferable, non-sublicensable and revocable license for the term of this Agreement to use and publicly display the Marks designated for use by splashy sand, in the form provided and manner approved by splashy sand, solely in connection with your performance under this Agreement and otherwise in accordance with any use guidelines and policies provided by splashy sand. splashy sand shall have the right to review your use of its Marks, and splashy sand may, in its sole discretion: (i) request changes or corrections to your use of the Marks, or (ii) require that you cease any and all use of the Marks. You may not use the Marks as a source of identification for yourself, including as part of a profile picture or avatar.
Ownership. You acknowledge and agree that splashy sand or its licensors own all intellectual property rights related to the Products, the splashy sand website, and all documentation, promotional materials and training materials associated with the Products, including, without limitation, all patents, Marks (together with all goodwill related thereto), inventions, copyrights, know-how, trade secrets and other proprietary rights relating to the Products and splashy sand website (the “splashy sand Intellectual Property Rights”). You further acknowledge and agree that the splashy sand Intellectual Property Rights shall remain the exclusive property of splashy sand or its licensors. If you or any related parties are deemed to have any ownership interest or rights in any splashy sand Intellectual Property Rights, then you shall assign and/or cause such related parties to assign, and you do hereby assign, irrevocably and royalty-free, all of such ownership interest and rights exclusively to splashy sand and you shall complete, execute and deliver any and all documents necessary to effect or perfect such assignments.
Protection. During the term of this Agreement, you will take all reasonable steps to protect the Program and the splashy sand website from any use, reproduction, publication, disclosure or distribution that is not specifically authorized by this Agreement. You shall comply with all reasonable directions that are submitted by splashy sand from time to time regarding the form and placement of intellectual property rights notices (such as trademark and copyright information) with respect to the Marks and/or splashy sand website.
Feedback. splashy sand does not want and cannot accept any ideas or information that you consider confidential and/or proprietary. This is to avoid the possibility of future misunderstandings when projects independently developed by or on behalf of splashy sand might seem to others to be similar to users’ own creative ideas, suggestions and/or materials. Except with respect to your personal information as expressly provided for in our Privacy Policy, all comments, suggestions, ideas, drawings, concepts or other information or materials (“Feedback”) disclosed or offered to us by you during the term of this Agreement shall be deemed to be non-confidential and non-proprietary. You hereby grant to us a non-exclusive, worldwide, fully paid, royalty-free, perpetual, irrevocable, fully sublicensable and fully transferable license to practice, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise commercially or non-commercially use, any and all such Feedback.
No Challenge. You shall not do anything that would infringe on the Marks or impair the goodwill and value of the Marks, including without limitation, directly or indirectly dispute the ownership and validity of the Marks or assist anyone else to do so, claim, use or apply to register, record or file any trademarks, trade names, logos, copyright or design that is identical or confusingly similar to the Marks or assist any other party to do so or combine the Marks with any other trademark or use the Marks as part of a trade name.
splashy sand MAKES NO REPRESENTATION OR WARRANTY TO YOU WITH RESPECT TO THE PRODUCTS OR THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PROGRAM, THIRD-PARTY SERVICES, INCLUDING YOUR ACCOUNT, AFFILIATE LINKS OR AFFILIATE CODES, AND THE MARKS ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SAME IS AT YOUR OWN RISK.
YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED NO ASSURANCES FROM splashy sand THAT YOU WILL OBTAIN ANY ANTICIPATED AMOUNTS OF PROFITS IN CONNECTION WITH THIS AGREEMENT OR THAT YOU WILL RECOUP ANY EXPENDITURES MADE IN FULFILLMENT OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. WE DO NOT WARRANT THAT THE PROGRAM, THIRD-PARTY SERVICES, INCLUDING YOUR ACCOUNT, AFFILIATE LINKS OR AFFILIATE CODES, WILL SATISFY YOUR REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL splashy sand OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR PARTICIPATION IN THE PROGRAM, THIRD-PARTY SERVICES, INCLUDING YOUR ACCOUNT, OR YOUR USE OF OR INABILITY TO USE AFFILIATE LINKS OR AFFILIATE CODES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR DEATH, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 13, splashy sand IS FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL splashy sand’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE LESSER OF (I) THE TOTAL AMOUNT OF COMMISSIONS, IF ANY, PAID TO YOU BY splashy sand IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (II) $500.00 USD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF USE FAIL OF THEIR ESSENTIAL PURPOSE.

You agree to indemnify, defend, and hold splashy sand and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from your acts or omissions in connection with this Agreement, Third-Party Services, or the Program (including your actions as a Participant) and/or your breach of this Agreement or violation of applicable law. We reserve the right, but not the obligation, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action.
Definition; Obligations. All information obtained by you in connection with your activities hereunder, including, but not limited to, information relating to each Customer and to this Agreement, splashy sand’s website, technology, business, financial or personnel matters, its present or future Products, sales, suppliers, prices, costs, customers, employees or investors, shall be treated as confidential and proprietary information of Company (“Confidential Information”). During the term of this Agreement and at all times thereafter, you will (i) hold the Confidential Information in strict confidence, (ii) not use the Confidential Information for any purpose other than fulfilling its obligations under this Agreement, and (iii) not disclose the Confidential Information to any third party without Company prior written consent.
Exceptions. The restrictions on the use and disclosure of Confidential Information will not apply to any Confidential Information, or portion thereof, which you can prove: (i) is already, or otherwise becomes, publicly known other than by a wrongful act or omission by you; (ii) you rightfully possessed prior to receiving such information hereunder; (iii) you independently developed without reference to or use of the Confidential Information; or (iv) is lawfully received by you from a third party having the right to disseminate such information without restriction on disclosure. Furthermore, you may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, in which case you will provide splashy sand with prior written notice of such disclosure in order to permit splashy sand to seek confidential treatment of such information.
Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER.
Binding Arbitration. You and splashy sand both agree that any and all disputes or claims arising out of or relating in any way to your participation in the Program including without limitation any question regarding the existence, validity, or termination of the Agreement as well as any issue regarding the interpretation of this Section 16, will be resolved by binding arbitration before a sole arbitrator (rather than in court), except that you may assert claims in small claims court if your claims qualify and splashy sand may pursue a collection action against you in court. This also includes any claims that arose before you accepted the Agreement, regardless of whether prior versions of the Agreement required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.
Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including without limitation injunctive and declaratory relief or statutory damages) and must follow the terms of the Agreement as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to splashy sand, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: splashy sand, 5117 N 27th Ave, Phoenix, AZ, 85017 (“Notice Address”). You may download or copy a form Notice at www.adr.org. If splashy sand and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or splashy sand may commence an arbitration proceeding or file a claim in small claims court.
Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.
Consumer Arbitration Rules. The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by the terms of the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Agreement and the AAA Consumer Arbitration Rules, the terms of the Agreement will apply.
Fees. Each party will bear its own fees in connection with the arbitration, including without limitation the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
Hearings. If your claim is for US$25,000 or less, you and splashy sand agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in New York City, New York.
No Class Action. You and splashy sand agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor splashy sand may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 16 shall be null and void.
Confidentiality. Any arbitration will be confidential. Neither you, splashy sand, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by applicable law or for purposes of enforcing or challenging of the arbitration award.
Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to splashy sand at the Notice Address no later than thirty (30) calendar days from the date of your purchase of splashy sand products or services (or date of first use, in the case of free products or services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of the Agreement or your ability to purchase or use splashy sand products or services in any way.
Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with splashy sand and this Agreement must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
Independent Contractors. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect. You will not be entitled to any of the benefits that splashy sand may make available to its employees. Because you are an independent contractor, splashy sand will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation or any other types of insurance on your behalf and you acknowledge your obligation to report your Commissions to all applicable taxing authorities as income and pay all self-employment and other taxes on the Commissions. Nothing contained in this Agreement shall be construed or interpreted as creating an agency, partnership, employee/employer or joint venture relationship between the parties.
Governing Law; Venue. Without limiting Section 16, this Agreement and any dispute or claim arising out of or related to this Agreement, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of New York. Subject to Section 16, (i) any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for the Southern District of New York or, if such court would not have jurisdiction over the matter, then only in a New York State court sitting in New York City, New York (ii) each party hereby irrevocably submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum, and (iii) each party irrevocably waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the Federal or state courts sitting in New York City, New York and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
Entire Agreement. This Agreement constitutes the sole and entire agreement between you and splashy sand with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Waiver and Severability. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of this Agreement will continue in full force and effect
Assignment. This Agreement may not be assigned, in whole or in party, by you without the prior written consent of splashy sand. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.
Electronic Communications. The communications between you and splashy sand as part of the Program use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.