Affiliate Marketing Agreement

Last Updated: May 2, 2023

This Affiliate Marketing Agreement (the “Agreement”) is by and between Proko LLC, a California Limited Liability Corporation (“Proko”, “We”, “Us”, or “Our”) having a principal place of business at 8963 Complex Drive, Suite B; San Diego, CA 92123 and you, as a Marketing Affiliate (as defined below) (“You” or “Your”).

This Agreement governs Your application to, and participation in, Our affiliate marketing program (the “Proko Affiliate Marketing Program”) and any and all marketing or promotional activities related to Your use of certain graphic and/or textual links from Your websites to a website operated by Proko which allows you to earn commissions when someone clicks on such links and purchases certain products or services offered on a website operated by Proko.

Please read this Agreement carefully before You register as a Marketing Affiliate or create any link to a Proko.com Webpage in anticipation of receiving revenue as a result of the creation of such link. By registering as a Marketing Affiliate or creating such a link, You confirm that You have read this Agreement and accept and agree to be bound and abide by this Agreement.

THIS AGREEMENT REQUIRES THAT ALL CLAIMS BE BROUGHT ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTION.

1. OUR COMMITMENT TO EACH OTHER

   Our affiliates are very important to Us. We do Our best to treat You with the fairness and respect You deserve. We simply ask the same consideration from You. We have written this Agreement with You in mind, as well as to protect Our company’s reputation and good will. So please bear with Us while We take You through this legal formality. If You have any questions, please do not hesitate to let Us know. We are strong believers in straight-forward and honest communication. You may always reach Us at support@proko.com.

2. DEFINITIONS

   “Commission Fee” means the amount to be paid to Marketing Affiliate for each Confirmed Purchase by a Referred Customer that You refer to Proko pursuant to the terms and conditions of this Agreement.

   “Confirmed Purchase” means a sale of Proko.com Products and Services to a Referred Customer that is not otherwise excluded pursuant to this Agreement.

   “Marketing Affiliate” means the business, individual, or other entity accepting these terms and applying to or participating in the Proko Affiliate Marketing Program, and that displays any Proko.com Products and Services and/or any promotions regarding the same on its website, or other means, using an affiliate tracking code in exchange for receiving a commission from Proko for sales directly resulting from such display.

   “Marketing Affiliate Website” means the Marketing Affiliate’s website, application, or other communication channels (including, without limitation email) which displays or provides the Referral Links to consumers.

   “Proko.com Products and Services” means a product or service, whether provided by Proko or a third-third party, available on or through a Proko.com Webpage and/or application.

   “Proko.com Webpage” means a webpage available on or through the www.proko.com website (including the homepage) accessible through a URL, along with any mobile applications provided by or on behalf of Proko used to access and use the Proko.com Products and Services.

   “Referred Customer” means an individual that You refer through a Referral Link to Proko.com and who makes a Confirmed Purchase.

3. ENROLLMENT IN AFFILIATE PROGRAM

   1. Signup Form. You may register to become a Marketing Affiliate by completing the signup form. We will evaluate Your application in good faith and will notify You of Your acceptance or rejection in a timely manner. We may reject Your signup form if We determine that the proposed Marketing Affiliate Website(s) are not suitable for the Proko Marketing Affiliate Program for any reason, including, but not limited to, its inclusion of content (including other advertising) that is, in Our opinion, is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, unlawful, inappropriate, or otherwise objectionable.
   2. Rejected Applications. In the event Your application for the Proko.com Affiliate Marketing Program is rejected by Proko for any reason, You are welcome to apply to be a Marketing Affiliate on another website that you own or control, however You may not re-apply to the Proko Affiliate Marketing Program utilizing the same domain name/URL or reapply using a different domain/URL and then add the previously rejected domain name/URL to Your affiliate account.
   3. No Guarantees. You acknowledge that Proko makes no guarantee or warranty regarding any Commission Fees that you may earn by participating in the Proko Affiliate Marketing Program.

4. PROMOTION OF PROKO

   1. Referral Links. Promptly after Your acceptance into the Proko Affiliate Marketing Program, We will make a variety of graphic and/or textual links available to You to refer individuals to one or more Proko.com Webpages (each, a “Referral Link”), which We may update from time to time. The Referral Links will contain a unique identifier used to identify You and each Marketing Affiliate Website as a member of the Proko Affiliate Marketing Program. You agree to fully cooperate with Proko to maintain such Referral Links and to establish such Referral Links on the applicable Marketing Affiliate Websites, and that You shall use such Referral Links in compliance with this Agreement at all times. You agree that We may, at any time, require that you move the location of the Referral Link or modify or remove any other information appearing nearby, alongside, or in any way referring to the Referral Link.
   2. Prohibited Referral Links and Other Technologies. You agree that You will not use any graphic or textual information related to the Proko Affiliate Marketing Program on any Marketing Affiliate Websites that are not approved in advance by Proko. You agree and acknowledge that You will not use any cookie stuffing techniques that set any other tracking cookie related to the Proko Affiliate Marketing Program without the Referred Customer’s explicit knowledge and consent.
   3. Other Prohibited Activities. In connection with Your participation in the Proko Affiliate Marketing Program, you may not: (a)impersonate or attempt to impersonate Proko, a Proko employee, or another user or any other person or entity (including, without limitation, by using e-mail addresses associated with or likely to be confused with any of the foregoing); (b)illegally transmit, or procure the sending of, any advertising or promotion material, including any “junk mail,” “chain letter,” or “spam” or other similar solicitation; (c)violate any third party’s intellectual property rights on any Marketing Affiliate Websites; (d)advertise Proko or any of the Proko.com Products and Services in a false or misleading way; (e)post anything on any Marketing Affiliate Website that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; or (f)post any software or other executable code on any Marketing Affiliate Website that can potentially enable diversions of commissions from other affiliates in the Proko Affiliate Marketing Program.
   4. Limited Trademark License. Subject to the terms and conditions of this Agreement, Proko hereby grants to Marketing Affiliate a non-exclusive, non-transferable, non-sublicensable right and license to use the Proko name and associated trademarks as provided in any Referral Link during the Term in connection with the promotion of the Proko.com Products and Services on Marketing Affiliate Websites. For any third-party trademarks associated with products or services published on Proko.com, Marketing Affiliate must obtain written approval from Proko and/or the respective third-party prior to using their trademarks in promotional materials. You grant Us a non-exclusive license to utilize Your name, title, trademarks, and logos in any advertisement or other materials used to promote Proko, Proko.com Products and Services, a Proko.com Webpage or the Proko Affiliate Marketing Program, provided, however, that We are not obligated to make any such use of the foregoing and, provided further, that the licenses described in this paragraph shall terminate upon the termination of Your participation in the Proko Affiliate Marketing Program.
   5. No Public Announcements. You may not make any public announcements related to Your participation in the Proko Affiliate Marketing Program without Our express consent.
   6. NO OTHER USE. EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO: (I)USE THE PROKO OR OUR OTHER LICENSOR’S TRADEMARKS, NAME, OR ANY OF OUR OR OUR LICENSOR’S OTHER INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, THE REFERRAL LINKS (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERMS OR TERMS CONFUSINGLY SIMILAR WITH ANY OF THE FOREGOING) (COLLECTIVELY, THE “PROKO IP”) WITHOUT PROKO’S EXPRESS WRITTEN PERMISSION; (II)USE ANY OF THE PROKO IP IN ANY DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (III)ACT IN ANY WAY THAT CAUSES OR CREATES OR REASONABLY COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF THE PROKO IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF THE PROKO IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER, SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF PROKO’S OR ITS LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY PROKO’S OR ITS LICENSOR’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH PROKO OR ITS LICENSORS SEEK TO ENFORCE THEIR RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF PROKO’S OR ITS LICENSOR’S INTELLECTUAL PROPERTY RIGHTS.

5. FTC ENDORSEMENT COMPLIANCE

   1. Required Disclosures. It is Proko’s intent to treat all Our customers fairly and in compliance with all applicable laws. In furtherance of the foregoing, You agree to comply with all applicable laws, regulations and guidelines concerning advertising and marketing, including, without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed to consumers. You agree and acknowledge that the foregoing requires that all Marketing Affiliate Websites and any email or or other material that provide an endorsement or assessment of the Proko.com Products and Services must prominently disclose that You receive compensation for Referred Customers, and You must provide such disclosures on any Marketing Affiliate Websites that uses one or more Referral Links. You agree and acknowledge to seek the advice of qualified legal counsel should You have any questions regarding these requirements.
   2. Violations. Proko reserves the right to withhold Commission Fees and to terminate this Agreement in accordance with its terms and conditions should Proko determine, in its reasonable discretion, that You are not in compliance with the requirements set forth in Section 5.1.

6. PRIVACY; SECURITY

   1. Privacy and Security Laws. In addition to the obligations set forth in Section 5, You agree to comply with all applicable data protection, privacy, or similar applicable laws (including all statutes, enacting instruments, common law, regulations and directives concerning the protection or maintenance of personal information), including, without limitation, the General Data Protection Regulation (2016/679) (“GDPR”) and the California Consumer Privacy Act of 2018 (“CCPA”) (collectively, “Data Privacy Laws”). You, as a controller under the GDPR and a “business” under the CCPA, agree to implement appropriate technical measures to ensure a level of security appropriate to the risk to personal information, taking into account the nature, scope, context, and purpose of processing any personal information. You agree to promptly assist Proko in complying with any data subject rights request under applicable Data Privacy Laws that Proko may receive from any Referred Customers. You further agree to promptly assist Us with complying with any other obligations We may have under applicable Data Privacy Laws related to Referred Customers.
   2. Email and Publicity. You may only send emails containing a Referral Link and/or a message regarding Proko, Proko.com Products and Services, or a Proko.com Webpage in full compliance with all applicable laws relating to email communications, including, without limitation, the CAN-SPAM Act of 2003, Canada’s Anti-Spam Law, GDPR, CCPA (which may, in some jurisdictions, require the prior consent of the recipients of such messages to receive such communications from You). You agree to seek the advice of qualified legal counsel should You have any questions regarding these requirements. Your failure to abide by these requirements will be deemed a material breach of this Agreement by You and We may immediately terminate this Agreement and Your participation in the Proko Affiliate Marketing Program, which may result in the forfeiture by You of any and all rights You may have to any Commission Fees.

7. PROCESSING OF ORDERS FROM REFERRED CUSTOMERS

   Proko will promptly process orders placed from Referred Customers who follow the Referral Links from Marketing Affiliate Websites so that You can get Your Commission Fees paid. However, We reserve the right to reject orders that do not comply with Our order acceptance requirements, such as an order from an individual who has been banned from a Proko.com Webpage or who’s payment method is rejected. All aspects of order processing and fulfillment for the Proko.com Products and Services will be Proko’s responsibility. We will track the Confirmed Purchases generated by Your Marketing Affiliate Websites through the Referral Links, and will make this information available to through the Marketing Affiliate portal. You acknowledge and agree that all Referral Links between the Marketing Affiliate Websites and a Proko.com Webpage must be properly formatted and posted on the Marketing Affiliate Websites to permit accurate tracking, reporting, and commission accrual and We take no responsibility for incorrectly formatted or posted Referral Links.

8. CONFIRMED PURCHASES AND DETERMINATION OF COMMISSIONS

   1. Confirmed Purchase Exceptions. Your commission for each Confirmed Purchase will be calculated subject to the terms and conditions of this Agreement at the rates set forth below. A Confirmed Purchase does not include any of the following:
      1. A purchase by a Referred Customer whose payment to Proko.com is rejected or otherwise is in dispute;
      2. A purchase by a Referred Customer who is a current or former customer of Proko.com and that has not been in good standing for a period of at least thirty (30) days or who is in violation of Proko’s Terms of Use or other applicable policies at the time the Commission Fees accrue;
      3. A purchase that was completed prior to Your acceptance as a Marketing Affiliate or that was not tracked properly through a Referral Link;
      4. A purchase that Proko suspects is the result of fraud, which includes, but is not limited to, the use of robots or other automated software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement; and
      5. Purchases by Referred Customers if Your prior Referred Customers have an excessive rate of refund requests.
   2. Withheld Initial Payments. We reserve the right to withhold payment of Your initial Commission Fees for a reasonable period of time if You are newly accepted as a Marketing Affiliate, or if You have commissions that are potentially fraudulent, to determine the legitimacy and refund request rates of Referred Customers.
   3. Suspension of Commission Fees. We reserve the right to suspend the payment of Commission Fees at any time or indefinitely if We suspect fraud or other improper activity or a potential material breach of any of the terms of this Agreement by either You or Our Terms of Use or other applicable agreements by any of Your Referred Customers. We reserve the right to deduct from Your current and/or future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, or cancelled purchases of Proko.com Products and Services.
   4. Commission Fees for non-Confirmed Purchases. We reserve the right to immediately cancel or withdraw for later review any Commission Fee for a purchase that fails to meet the criteria for a Confirmed Purchase. You are responsible for monitoring the payment, denial, and withholding of Commission Fees and We are under no obligation to actively notify You of the status of Commission Fees. In the event You dispute or have a question about a Commission Fee that has been cancelled or withheld, You may contact Us with the details of Your question or dispute within thirty (30) days from the day the payment would have been made. We will review any such questions regarding cancelled or withheld Commission Fees in good faith.
   5. Excessive Cancellation Rates. We reserve the right to withhold or decline pending and future Commission Fees in the event that Referred Customers are determined to have an excessive cancellation rate, as determined by Us in Our reasonable discretion.
   6. Manipulation; Falsification. Any actual or attempted manipulation, falsification, or inflation of Referred Customers, Confirmed Purchases, or Commission Fees by You with the intent to defraud Us will be considered a material breach of this Agreement and may result in the forfeiture of any of Your remaining or future Commission Fees.
   7. Returns; Refunds. Commission Fees are calculated based on the Confirmed Purchases by Referred Customers less any amounts attributable to Proko.com Products and Services that have been cancelled or returned and the purchase price or portion thereof refunded to the Referred Customer (such amounts referred to herein as “Returned Commission Fees”). Subject to the payment provisions set forth in Sections 9 and 13, We may offset the payment of any Commission Fees in any month by any Returned Commission Fees that have not been previously offset by prior payments of Commission Fees.

9. COMMISSION PAYMENTS

   1. Minimum Commission Fees. Commission Fees will accrue and only become payable once You: (a)provide all relevant tax and address documentation as set forth herein; and (b)You have accrued Commission Fees of at least one-hundred dollars ($100), provided, however, that if Your Commission Fees in any month do not exceed this amount, the Commission Fees shall continue to accrue in subsequent months until this amount is reached.
   2. Commission Rates. Subject to the terms of this Agreement and and the accrual of Commission Fees as set forth in this Section 9, We will calculate Your Commission Fees according to the percentage set forth on the Marketing Affiliate portal for Your commission type for each Confirmed Purchase that accrues during the period for which Your Commission Fee is being calculated.
   3. Current Information Required. We will pay Your Commission Fees based on the current information in Your profile. You must promptly notify Us of any change in Your address by updating Your profile information in the affiliate portal. We will pay Your Commission Fees via PayPal or other payment method mutually agreed upon. If You are outside of the United States, please refer to PayPal’s policy to ensure that You are eligible to receive payments. We reserve the right to modify the available commission payment methods or the payment schedule at any time. We will notify You of such changes, but they will take effect when posted.
   4. Address Change Notifications. Any address change must be made in Your profile on the affiliate portal at least fifteen (15) business days prior to the end of the calendar month in order for Your Commission Fees for that month to be paid.
   5. Marketing Affiliate Statistics. You may log into Your account on the Marketing Affiliate portal at any time to review Your click through rates and potential Confirmed Purchases on a daily basis. However, the potential Confirmed Purchases may not have been reviewed for conformance with all of the requirements for Confirmed Purchases described in this Agreement and You should not rely on such amounts until Commission Fees are paid.

10. MARKETING AFFILIATE WEBSITES

    1. Responsibilities. You are solely responsible for the operation, development, maintenance, and management of, and all access to and use of, Your Marketing Affiliate Websites and for all content that appears on Your Marketing Affiliate Websites. Such responsibilities include, but are not limited to: (a)the technical operation of Your Marketing Affiliate Websites and all related equipment; (b)the creation and posting of reviews, descriptions, and references on Your Marketing Affiliate Websites to Proko.com Products and Services and linking those descriptions to a Proko.com Webpage through Referral Links; (c)the legality, reliability, accuracy, and appropriateness of any content posted on Your Marketing Affiliate Websites; and (d)ensuring that any content posted on Your Marketing Affiliate Websites does not violate or infringe upon the rights of any third party and is not libelous or otherwise illegal. We disclaim liability and responsibility arising out of any such matters.
    2. Marketing Affiliate Website Monitoring. We have the right in Our sole discretion to monitor Your Marketing Affiliate Websites and the purchases of Proko.com Products and Services made from such Marketing Affiliate Websites from time to time to determine if You are in compliance with the terms of this Agreement. If You are not in compliance, We may terminate Your participation in the Proko Affiliate Marketing Program at any time without notice.

11. PROKO RESPONSIBILITIES

    We are solely responsible for:

    1. Processing (including payment processing, cancellations, and refunds) of any purchases of Proko.com Products and Services placed by a Referred Customer that follows a Referral Link from a Marketing Affiliate Website.
    2. Tracking the volume and amount of Confirmed Purchases generated by Your Marketing Affiliate Websites.
    3. Providing statistical information to You regarding Your participation in the Proko Affiliate Marketing Program.

12. POLICIES AND PRICING

    As between Marketing Affiliate and Proko, Referred Customers who make any purchase of Proko.com Products and Services through the Proko Affiliate Marketing Program are deemed to be Proko customers. Proko’s terms of use (including terms of sale), privacy notice, rules, policies, and operating procedures will apply to such Referred Customers. We may change Our policies, pricing, and operating procedures at any time. For example, as between Marketing Affiliate and Proko, We determine the prices to be charged for Proko.com Products and Services sold through Proko Affiliate Marketing Program in accordance with Our own pricing policies (or the pricing policies of one of Our suppliers of Proko.com Products and Services). Pricing and availability of Proko.com Products and Services may vary from time to time, from Marketing Affiliate to Marketing Affiliate, and from region to region. Because price changes may affect the Proko.com Products and Services that You have listed on Your Marketing Affiliates, We recommend that You do not include price information in Your product descriptions, and You are solely responsible for them if You do. We will use commercially reasonable efforts to present accurate information on a Proko.com Webpage, but We cannot guarantee the availability or price of any Proko.com Products and Services.

13. TERM AND TERMINATION

    1. Term. The term of this Agreement will begin upon Our acceptance of Your application to the Proko Affiliate Marketing Program and will continue until terminated in accordance with this Agreement (the “Term”). You and Proko may terminate this Agreement at any time, with or without cause.
    2. Commission Period. You are only eligible to earn Commission Fees on Confirmed Purchases occurring during the Term. Commission Fees earned immediately prior to the effective date of termination will be eligible for commissions only if the orders for Proko.com Products and Services are not cancelled within thirty (90) days and comply with all of the terms of this Agreement. We may withhold Your final payment of Commission Fees (as calculated pursuant to Section 8.7) for a reasonable period of time to ensure that all Confirmed Purchases are valid and payments from Referred Customers are authorized and legitimate.
    3. Forfeiture of Commissions. We reserve the right to immediately terminate Your participation in the Proko Affiliate Marketing Program if You violate this Agreement or any applicable law. Any such termination will result in the forfeiture of any right to any and all Commission Fees that have been accrued but not paid as of the effective date of termination.

14. MODIFICATION

    We may revise and update this Agreement from time to time in Our sole discretion. Your continued participation in the Proko Affiliate Marketing Program after reasonable notice of the revised Agreement means that You accept and agree to the changes, provided, however, that any changes will only apply to events that occur after the effective date of the changes and after You have had reasonable opportunity to review them. Changes to the Agreement may include, but are not limited to, changes in the scope of available Commission Fees, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and rules of the Proko Affiliate Marketing Program. If You do not agree with any of the changes, Your only recourse is to terminate this Agreement and Your participation in the Proko Affiliate Marketing Program by written notice to Us (if You do this, You will of course be entitled to all of Your rights, including any Commission Fees due, under the unmodified Agreement). Your continued participation in the Proko Affiliate Marketing Program following the effective date of the changes means that You accept and agree to such changes.

15. LIMITATION OF LIABILITY

    IN NO EVENT PROKO BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD-PARTY (INCLUDING ANY REFERRED CUSTOMER) FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROKO AFFILIATE MARKETING PROGRAM, REGARDLESS OF (A)WHETHER SUCH DAMAGES WERE FORESEEABLE, (B)WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C)THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. FURTHER, IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROKO AFFILIATE MARKETING PROGRAM, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE COMMISSION FEES PAID TO YOU IN THE THREE (3) MONTHS PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

16. INDEMNIFICATION

    You agree to defend, indemnify and hold harmless Proko, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to Your violation of this Agreement or Your participation in the Proko Affiliate Marketing Program, including, without limitation, any such claims related to Your Marketing Affiliate Websites.

17. CONFIDENTIALITY

    You and Proko each agree that all information about the other’s business affairs, technology, financial information, customer lists, or pricing and sales information (including, without limitation, commission rates), are and shall remain strictly confidential and You and Proko shall shall: (a)protect and safeguard the confidentiality of such information; (b)not use the such information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c)not disclose any such information to any person or entity, except to the individuals who need to know such information. The foregoing does not apply to information that: (i)is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 17; (ii)is or becomes available to the to You or Proko on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such information; (iii)was known by or in the possession of You or Proko before being disclosed by the other party; or (iv)was or is independently developed by You or Proko without reference to or use, in whole or in part, of any of the information received from the other party.

18. MISCELLANEOUS

    1. DISCLAIMERS. YOUR PARTICIPATION IN THE PROKO AFFILIATE MARKETING PROGRAM IS AT YOUR OWN RISK. THE PROKO AFFILIATE MARKETING PROGRAM, PROKO.COM PRODUCTS AND SERVICES, PROKO.COM WEBPAGE, AND REFERRAL LINKS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PROKO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT YOUR PARTICIPATION IN THE PROKO AFFILIATE MARKETING PROGRAM WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS (INCLUDING THE EARNING OR PAYMENT OF ANY COMMISSION FEES). NEITHER PROKO NOR ANY PERSON ASSOCIATED WITH PROKO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, OR ACCURACY OF A PROKO.COM WEBPAGE (INCLUDING THE TRACKING OF INFORMATION RELATED TO REFERRED CUSTOMERS). WITHOUT LIMITING THE FOREGOING, NEITHER PROKO NOR ANYONE ASSOCIATED WITH PROKO REPRESENTS OR WARRANTS THAT THE PROKO.COM PRODUCTS AND SERVICES, PROKO.COM WEBPAGE, AND REFERRAL LINKS (INCLUDING THE TRACKING OF INFORMATION RELATED TO REFERRED CUSTOMERS) WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. PROKO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
    2. Relationship of the Parties. Nothing herein shall be construed to create an agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between You and Proko. You and Proko shall be independent contractors under this Agreement. You do not have any express or implied right, power, or authority to assume or create any obligations on behalf of or in the name of Proko or to bind Proko to any contract, agreement, or undertaking with any third-party.
    3. Dispute Procedure. Except for any claim of intellectual property infringement, which shall be subject to litigation in the courts as set forth in Section 18.4:
       1. EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, YOU AND PROKO ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. EXCEPT FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR PARTICIPATION (OR APPLICATION FOR PARTICIPATION) IN THE PROKO AFFILIATE MARKETING PROGRAM, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
       2. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with their Commercial Arbitration Rules and Mediation Procedures (the “Commercial Rules”) then in effect, except as modified by this Section 18.3. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
       3. The award rendered by the arbitrator shall be final, non-reviewable, and non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.
       4. There shall be one arbitrator agreed to by You and Proko within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
       5. You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR PROKO WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER MEMBERS OF THE PROKO AFFILIATE MARKETING PROGRAM IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
       6. The seat or place of arbitration will be San Diego, California, USA. The arbitration will be conducted and the award shall be rendered in the English language.
       7. Except as may be required by law, neither You nor Proko nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right.
       8. The arbitrator will have no authority to award punitive damages, consequential damages, liquidated damages, or compensatory damages exceeding the limits set forth in Section 15.
       9. You or Proko may elect to pursue a claim in small claims court rather than arbitration by providing the other party with written notice of Your or Proko’s intention to do so within sixty (60) days of the time the claim arises. The arbitration or small-claims court proceeding will be limited solely to Your or Proko’s individual dispute or controversy.
    4. Governing Law and Jurisdiction. All matters relating Your participation in the Proko Affiliate Marketing Program and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). Subject to Section 18.3, any legal suit, action or proceeding arising out of, or related to, these Your participation in the Proko Affiliate Marketing Program or this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the San Diego County, California, USA although We retain the right to bring any suit, action or proceeding against You for breach of this Agreement in Your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
    5. Waiver and Severability. No waiver by Proko of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Proko to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
    6. Force Majeure. Neither You nor Proko shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control and which it could not have mitigated, avoided, or prevented the non-performance through the exercise of reasonable care and precautions (a “Force Majeure Event”), including, without limitation: (a)acts of God; (b)flood, fire, earthquake, or explosion; (c)war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d)government order or law; (e)actions, embargoes, or blockades in effect on or after the date of this Agreement; (f)action by any governmental authority; (g)national or regional emergency; and (h)pandemic or other widespread disease or illness.
    7. Assignment. You may not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Proko’s prior written consent. Any purported assignment, delegation, or transfer in violation of this Section 18.7 is void.
    8. Entire Agreement. This Agreement constitutes the sole and entire agreement between You and Proko with respect to Your participation in the Proko Marketing Affiliate Proko Affiliate Marketing Program supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Proko Affiliate Marketing Program.