Final Draft Affiliate Program Terms and Conditions

This Final Draft Affiliate Program Terms and Conditions (the “Agreement”), contains the complete terms and conditions that apply to your participation as an affiliate in Final Draft’s Affiliate Network Program (the “Program”). As used in this Agreement, “we”, “us”, or “Final Draft” means collectively, Cast & Crew Production Software, LLC dba Final Draft and/or its parents, subsidiaries and related entities (as applicable), and “you” or “your” means the affiliate participating in the Program. “Site” means a website and, depending on the context, refers either to the finaldraft.com Site or to the portion of the finaldraft.com Site that you will link to using Qualifying Links as defined in Section 2 of this Agreement.

We reserve the right to make changes to the Program and this Agreement at any time, and such changes will be effective immediately upon either being provided to you via email or such other method we select in our sole discretion, including, without limitation, posting the updated terms and conditions on any applicable platform used by us for administering the Program.

MISUSE OF OUR BRAND, PARTICIPATING IN PROHIBITED ACTIVITY AND/OR FAILURE TO COMPLY WITH THIS AGREEMENT MAY RESULT IN A LOSS, REDUCTION AND/OR OFFSET OF REFERRAL FEES OR TERMINATION OF YOUR PARTICIPATION IN THE FINAL DRAFT AFFILIATE PROGRAM.

1. Enrollment in the Program. To begin the enrollment process and to become an affiliate in the Program, you must submit a completed affiliate application. By submitting your Program application and participating in the Program, you are confirming that you have read and understand this Agreement, you represent and warrant that you are lawfully able to enter into contracts, you are at least 18 years old and you agree to be bound by, and will continue to comply with, this Agreement throughout the full duration of your participation in the Program. Additionally, you acknowledge and agree that by submitting your application, the effective date of this Agreement (“Effective Date”) will be the date on which you submit your application. Final Draft employees, family members of employees, and suppliers are not eligible to enroll in the Program.

We will evaluate your application and notify you of your acceptance or rejection for participation in the Program. We may reject your application if we determine (in our sole discretion) that your site or Affiliate Materials (as defined in Section 12): (i) are unsuitable for the Program for any reason, and/or (ii) if you are involved or allegedly involved in prohibited activities (as further described below). Unsuitable websites include, but are not limited to, those that:

  • Contain or promote materials that are sexually explicit or could be deemed obscene, pornographic or excessively violent;
  • Promote violence or hate toward any persons or groups;
  • Promote illegal activities;
  • Promote the sale or use of alcohol or tobacco products or gambling or the lottery in any way;
  • Violate any federal, state or local law (including privacy and “spam” laws);
  • Promote the use of pyramid, “ponzi”, or similar investment schemes;
  • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
  • Contain, in our sole judgment, material that is defamatory, fraudulent, or harassing;
  • Are known as “blogging sites”, defined for purposes of this Agreement as sites that contain only blogging and no other form of informational content;
  • Misrepresent themselves as a Final Draft Domain by using the “look and feel” of or text from a Final Draft Domain;
  • Include “final draft” or variations or misspellings thereof in their domain names;
  • Otherwise violate intellectual property rights of Final Draft or its suppliers;
  • Require a username and password to access;
  • Are child-directed or have knowledge that personal information of children under 13 is being collected, used or disclosed;
  • Disparage Final Draft or its affiliates or suppliers;
  • Do not clearly state an online privacy policy to its visitors;
  • Require downloads and/or knowingly download software to visitors’ computers;
  • Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
  • Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website;
  • Are otherwise considered, in our sole judgment, offensive or inappropriate;
  • Are under construction or not live at the time of Application; or
  • Link or provide a portion of their commission or Affiliate benefits to sites or organizations that would violate any of the above criteria.

Regardless of your acceptance in the Program, we may terminate this Agreement for any reason, at any time.

The terms of our acceptance criteria are subject to change at any time without prior notice.

All decisions for acceptance into the Program will be made within our sole discretion.

If your Application is not accepted, you may reapply to the Program at any time; however, you should not and may not link to our Site unless you are approved for the Program.

As a member of the Program, you grant Final Draft permission to distribute any email communication directly to you that Final Draft determines is necessary communication for you to receive in order to continue as a member of the Program, regardless of your choice to opt-out from certain communication.

2. Links on Your Website or Third Party Websites. Upon acceptance into the Program, we will make available to you Qualifying Links that are subject to the terms and conditions of this Agreement. A “Qualifying Link” is a link from a website to our Site using one of the Universal Record Locators (“URLs “) or graphic links provided by Final Draft, the ShareASale platform or by other means selected by us for use in the Program. All Qualifying Links must link directly and exclusively to Final Draft. Final Draft must approve each and every website that links to our Site through a Qualifying Link. If you use a Qualifying Link to link a website to our Site without seeking explicit authorization, your continued use of that Qualifying Link shall be considered a breach of this Agreement. However, continued use of the Qualifying Link will nonetheless subject such websites to the Terms and Conditions of this Agreement.

The Qualifying Links will serve to identify your website as a member of the Program and will establish a link from a website to our Site. All Qualifying Links that you will use in the Program will be provided to you from the ShareASale platform or by other means selected by us. You also agree that you will display on the website containing the Qualifying Link only those logos, trade names, trademarks (including, without limitation, finaldraft.com and other trademarks and service marks belonging to Cast & Crew Production Software, LLC dba Final Draft or other related entities (collectively, the “Trademarks“)), graphic images and similar identifying material (collectively, “Licensed Materials“) that are provided by us or by the ShareASale platform, and you will substitute such images with any new materials provided by us or the ShareASale platform from time to time throughout the term of this Agreement. A web widget that is pre-approved in writing by Final Draft for use on your website may be considered a Qualifying Link for purposes of this Agreement. Accordingly, web widgets are subject to all of the Terms and Conditions of this Agreement that apply to Qualifying Links.

Only valid Qualifying Links will be tracked for purposes of determining Referral Fees that you may be eligible to receive on sales of Qualifying Products (as defined below) generated through your participation in the Program.

Only Qualifying Links may be used to link a website to areas within our Site. You may not link directly to Final Draft without use of a Qualifying Link. You may post as many Qualifying Links to our Site as you like on a website, provided that you ensure that each website containing a Qualifying Link posted by you meets the terms of this Agreement, including without limitation, that such website does not fall into the “unsuitable website ” category described in Section 1, does not fall into the “prohibitions ” set forth in Section 3, and you take responsibility for all websites on which you post a Qualifying Link in accordance with Section 8. The position, prominence and nature of links on a website shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.

You acknowledge that, by participating in the Program and placing a link to finaldraft.com (or any category page therein) on any website through use of a Qualifying Link, we may receive information from or about visitors to such website or communications between such website and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our Privacy Policy located in the footer of the Final Draft Site.

You will provide us with information on how you are promoting Final Draft, including, without limitation, copies of Affiliate Materials, within forty-eight (48) hours of our request.

3. Prohibitions. You understand and acknowledge that this Agreement is made between you and Cast & Crew Production Software, LLC dba Final Draft and is solely for the purpose of allowing you to link to the Final Draft Site. As a condition to your acceptance and participation in the Program, you agree to the following prohibitions:

A. General Prohibitions.

You may NOT:

  • engineer any website containing a Qualifying Link in such a manner that pulls Internet traffic away from our Site;
  • attempt to modify or alter our Site in any way;
  • make any representations, either express or implied, or create an appearance that a visitor to your website is visiting our Site, e.g., “framing ” or “wrapping ” the Site in any;
  • “scrape” or “spider” the Site or any other websites for content (such as images, logos or text);
  • participate in Yahoo’s Search Submit Pro (SSP) Search Marketing Program;
  • place ads on, or participate in any way in, AdNetworks or Search Content Networks;
  • employ, use or place any web browser add-ons, toolbars or pop-ups on your website;
  • link any Qualifying Link to any website other than our Site, including, for example, your own website;
  • bid on our Trademarks at any website that provides search engine services and that results in driving traffic to any website, other than our Site, including your website;
  • engage in any direct or indirect relationships with ISPs and/or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking (e.g., a user mistypes a web address in the ISP’s address bar or search bar, and, as a result, is redirected to a web page that contains a Qualifying Link that directs the user to sites like finaldraft.com).
  • employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Referral Fees to or from any website;
  • use any Licensed Materials (as defined in Section 2), provided to you as a result of your participation in the Program to advertise or engage in services which result in a sale occurring on your website, whether or not you then have the item fulfilled through Final Draft;
  • without the prior written approval of Final Draft, use any Trademark, or any Licensed Material in an advertisement that is not created or provided by Final Draft in any way that might suggest or imply or mislead or is likely to mislead a visitor to your website into believing that Final Draft or any related entity was the creator or sponsor of such advertisement;
  • re-distribute Licensed Materials to websites which can reasonably be viewed as Final Draft’s competitors, including but not limited to, Celtx, Studio Binder, Fade In, Highland, and Arc Studio Pro;
  • re-distribute, display or syndicate Licensed Materials and/or Final Draft’s data feed, including any product information set forth therein, to any third party partner, network or agency;
  • employ, use, or receive any direct or indirect benefit from, any “cookie stuffing” methods (e.g., use of “cookie stuffing” to cause ShareASale’s tracking systems to conclude that a user has clicked through a Qualifying Link – and to pay commissions accordingly – even if the user has not actually clicked through any such link);
  • install spyware on another person’s computer; cause spyware to be installed on another person’s computer, or use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising other content on a website in a way that interferes with a person’s ability to view that website;
  • display any material on a website containing a Qualifying Link which contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
    without the prior written approval of Final Draft, use any widgets on your website that: (a) include any Licensed Materials; or (b) directly or indirectly send traffic to Final Draft;
  • post, publish, link to or place a Qualifying Link on the Final Draft Facebook Page;
  • forward, redistribute, or otherwise repurpose any or all Qualifying Links to any third party;
  • release Final Draft’s sales circulars, advertisements or other information prior to their authorized release dates; or
  • purchase products or services sold or promoted on Final Draft through a Qualifying Link for resale or commercial use of any kind.

B. Prohibitions Regarding Use of Electronic Communications

Electronic Communication includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication. These prohibitions are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the ShareASale Membership Agreement, as amended. You may not:

  • generate or use Electronic Communication using or containing Licensed Materials or any variation or misspelling thereof, or products, or any of the Qualifying Links or URLs provided to you as part of the Program;
  • send any other Electronic Communication that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that Final Draft or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication;
  • forward, redistribute, or otherwise repurpose any Electronic Communication that Final Draft sends to its affiliates and/or customers; or
  • generate or send any unsolicited Electronic Communication (spam) under this Agreement.

In addition, you are bound to act in compliance with all applicable federal, state and local laws and regulations, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM“) and the Children’s Online Privacy and Protection Act of 1998 (“COPPA“). You shall protect, defend, indemnify and hold harmless us and our parent and related entities from and against any claims, actions, liabilities, losses, damages, costs or expenses, including without limitation, attorneys’ fees and costs of litigation, even if such claims are groundless, fraudulent or false, incurred by us or our parent or related entities arising out of any content or activity by you or on your website or resulting from or in connection with your violation of any of the terms or prohibitions contained in this Agreement or any law, rule or regulation, including without limitation, claims for violations of third party intellectual property rights, and rights of privacy, including but not limited to CAN-SPAM and COPPA.

We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Qualifying Links to our Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. Among other things, we will prepare orders forms; process payments, cancellations, and returns; and handle customer service. Through the ShareASale platform, you have the ability to track sales made to customers who purchase products using your Qualifying Links and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that your Qualifying Links are properly formatted. The form, content, and frequency of the reports are limited to those reports and capabilities available through the ShareASale platform and may vary from time to time in our and/or the ShareASale platform’s reasonable discretion. Final Draft is not responsible for any changes that the ShareASale platform’s format, timing, or types of reports available to members of the ShareASale platform and Final Draft’s Affiliates. Final Draft will not be responsible for improperly formatted links regardless of whether you have made amendments to the code or not. In addition, we are unable to track or provide credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled.

4. Referral Fees. We will pay you Referral Fees on certain product sales to third parties generated from our Site only. For a product sale to generate a Referral Fee, the customer must

  • use a browser that has its cookies setting enabled;
  • follow a Qualifying Link (in the format specified by Final Draft) from a site to our Site;
  • purchase the product using our automated ordering system;
  • accept delivery of the product at the shipping destination; and
  • remit full payment to us.

We will pay, to ShareASale for ultimate payment to you, Referral Fees on products that are actually purchased by a customer within one (1) day after the customer has initially entered our Site (“Referral Fee Time“) as long as the customer reenters our Site directly during that time (and not through another affiliate link). We will not pay Referral Fees on any products are purchased on our Site when a customer has re-entered our Site (other than through a Qualifying Link from your website) after the Referral Fee Time, even if the customer previously followed a link from your website to our Site. Referral Fees will not be earned on products where a customer’s purchase of the product derived from search results driven from free or natural search; this includes results containing Qualifying Links displayed in a search engine’s free/non-paid, natural, or organic search results in response to a search query which sends customers directly to Final Draft without the customer first being sent to an affiliate site and the customer clicking on a link to arrive at Final Draft. Purchases using Gift Cards or Promotional Codes are not eligible to earn Referral Fees. Customer Service invoice adjustments and reorders are not eligible to earn Referral Fees. Products that are entitled to earn Referral Fees under the rules set forth above are hereinafter referred to as “Qualifying Products.”

5. Referral Fee Schedule. You will earn Referral Fees based on the sale price of Qualifying Products (as defined above), according to fee schedules to be established by us. “Sale price” means the sale price listed on our Site and excludes costs for shipping, handling, rebates, refunds, returns, chargebacks, cancellations and taxes. The current Referral Fee Schedule is available to you through the affiliate portal available to all members of the Program (“Affiliate Portal“). We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Referral Fee Schedule, at any time. If you have any questions concerning whether a certain item is eligible for a referral fee, please contact [email protected].

6. Referral Fee Payment. Approximately 20 days following the end of each calendar month, you will receive a check for the Referral Fees earned on products that were shipped during that month, less any taxes that we or ShareASale platform are required by law to withhold from the final payment to you. If a customer returns a product that generated a Referral Fee, you will see a deduction for the corresponding Referral Fee from your next monthly payment; if there is no subsequent payment, you will receive an invoice for the Referral Fee payable within sixty (60) days of your receipt of the invoice. All determinations of Qualifying Links and whether a Referral Fee is payable will be made by the ShareASale platform and/or Final Draft and will be final and binding.

7. Policies and Pricing. Customers who buy products through this Program will be deemed to be customers of Final Draft without affecting their status as your customer. Accordingly, all Final Draft rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at Final Draft. We may change our policies and operating procedures at any time consistent with applicable laws. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by Final Draft, provided that any price information must be accompanied with a statement on your website indicating to the user that in the event of any price difference between your website and finaldraft.com, the price listed on finaldraft.com will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.

8. Responsibility for Your Website or a Third Party Website on which you place a Qualifying Link (“Third Party Site”). You will be solely responsible for the development, operation, and maintenance of your website and for all content that appears on your website. For example, you will be solely responsible for:

  • the technical operation of your website and all related equipment;
  • creating and posting product descriptions on your website or a Third Party Site and linking those descriptions to our Site;
  • updating product information, content and item descriptions (including, but not limited to, product price and availability) within 24 hours of any update of such product information, content and/or item description at Final Draft or from data feed content provided through the ShareASale platform;
  • the accuracy, timeliness and appropriateness of content posted on your website (including, among other things, all product-related materials);
  • ensuring that materials posted on your website or a Third Party Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), or any term of this Agreement;
  • monitoring your website content and the content of a Third Party Site to ensure your website or the Third Party Site does not publish, link to, sell or otherwise distribute Objectionable Content;
  • removing any Licensed Materials from your website or a Third Party Site as soon as any Objectionable Content appears on the website
  • notifying us and the ShareASale platform of any Objectionable Content that appears or appeared on your website or a Third Party Site at any time during your participation in the program, within six (6) hours of its appearance, even if you immediately removed the Objectionable Content per the requirements of this Agreement or for any other reason;
  • ensuring that content posted on your website or a Third Party Site is not libelous or otherwise illegal; and
  • notifying us and the ShareASale platform of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of this Agreement.

We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and contents of your website.

9. Term of the Agreement. The term of this Agreement will begin on the Effective Date and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us five (5) days prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination. Upon termination, all Final Draft related content and links shall be promptly removed from your website. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

10. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by emailing you or posting a change notice or a new agreement on our Site or the platform used by us for administering the Program. Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee Schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

11. Relationship of Parties. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this Section.

12. Licenses and Use of the Final Draft Logos and Trademarks.

A. Trademark Usage.

Provided you are an affiliate in good standing (i.e., not in breach of this Agreement), we grant you, during the time you are an affiliate, a limited, non-exclusive, non-transferable, non-assignable, revocable right and license to: (a) access our Site content through the Qualifying Links solely in accordance with the terms of this Agreement and (b) solely in connection with such Qualifying Links, to use Licensed Materials, only as provided to you by or on behalf of us and solely for the purpose of identifying your website as a Program participant and to assist in generating the sale of Final Draft products. You agree to the limitations below:

  • Each Trademark must appear by itself and must be surrounded by sufficient empty space on all sides in order to avoid unintended associations with any other objects (including, without limitation, type, photography, borders and edges).
  • You must include the following notice on any materials you create that include the Final Draft logo: “FINAL DRAFT TM is a trademark of Cast & Crew Production Software, LLC”

B. Intellectual Property Rights

You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and all of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.

C. Licensed Material Usage

You shall not make any specific use of any Licensed Materials for purposes other than generating the sale of Final Draft products from your site without first submitting a sample of such use to us and obtaining our prior written approval, which we may withhold in our sole and absolute discretion. Without limiting the foregoing, you may not use any Licensed Materials in direct mail or email without first submitting a sample of such use to us and obtaining our prior written approval, which we may withhold in our sole and absolute discretion. You may use the Licensed Materials only for purposes expressly authorized by us and follow the below limitations:

  • You may only include Licensed Materials in emails and newsletters that are approved in advance by us and are fully compliant with all applicable laws and regulations, including, without limitation, CAN-SPAM and COPPA. You may not alter, modify, or change the Licensed Materials in any way; for example, you may not change the proportion, color, or font of any Trademark.
  • You may not display the Licensed Materials in any manner that implies our sponsorship or endorsement of your products, services or site outside of your involvement in the Program.
  • You may not use the Licensed Materials to disparage Final Draft, its products or services, or in a manner that, in our sole judgment, may diminish or otherwise damage the goodwill in our name and the Licensed Materials.
  • You may not use the Licensed Materials as a feature or design element of any other logo.
  • Your use of the Final Draft name or logo shall be in a manner that is clearly less prominent than that of your products, trademarks, logos and/or site name.

You may not copy any image on our site except for those specifically provided to you under this Agreement.

D. Licensed Materials Guidelines

We reserve the right in our sole discretion to modify these guidelines at any time with notice and the right to take action against and use that does not conform to these guidelines. The determination of whether you are using the Licensed Materials, your page, Affiliate Materials or any other content or materials related to this Agreement in the best interest of Final Draft is left to our sole and absolute discretion. We may revoke your license to the Licensed Materials at any time, upon notice to you, at which time you agree to immediately cease using the Licensed Materials.

E. Affiliate License to Affiliate Materials

You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use your approved names, titles, logos, trademarks, trade names, and service marks, copyrights, and any other materials created or used by you (which must be approved by us in writing) in connection with the Program (collectively, the “Affiliate Materials”) to advertise, market, promote and publicize in any manner the Program, your participation in the Program and/or to promote Final Draft or our product(s). Final Draft will not be required to use the Affiliate Materials or to advertise, market, promote or publicize your affiliation with the Program. You represent and warrant that the Affiliate Materials, your page and any other materials created or used by you in connection with the Program will not contain anything that, in our sole judgment, violates any law, regulation or ordinance or third party rights, is considered to be defamatory or constitute libel or slander, may be inconsistent with our public image, may be in bad taste, are indecent or in our opinion otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon us or any affiliated and/or subsidiary companies. You are responsible for ensuring that the Affiliate Materials and any other materials posted on your Site do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. You must have express written permission to use another party’s intellectual, proprietary or contractual rights, or to use another’s name, portrait, voice or likeness and you agree to provide such written permission to us promptly upon request. You will be solely responsible for the development, operation and maintenance of your page, for all materials that appear on your page, and for all marketing and promotion you conduct on your page and in public.

13. Representations and Warranties. You hereby represent and warrant to us as follows:

This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby. Your execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your site or the Affiliate Materials, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.

Any material displayed on your site or Affiliate Materials will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulation; (c) be defamatory or libelous; (d) be lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, anti-discrimination or false advertising; (f) promote violence or contain hate speech; (g) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (h) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

14. Indemnification. You acknowledge that by entering into this Agreement, Final Draft does not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your site(s) or the Affiliate Materials. Accordingly, you hereby agree to indemnify, defend and hold harmless Final Draft, our affiliates, licensees and licensors, and each of our respective directors, officers, employees, agents, shareholders and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including court costs and attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”), even if such claims are groundless, fraudulent or false, that arise out of or are based on: (i) any breach or alleged breach of any representation or warranty or breach of a covenant or agreement made by you; (ii) the content and/or activities of your site and Affiliate Materials (including, without limitation, any activities or aspects thereof or commerce conducted thereon) or related business; (iii) your use and/or modification of any of the services or materials provided by us or ShareASale in connection with this Agreement; (iv) your violation of any law, rule, regulation, ordinance or applicable policy of or agreement in connection with the Program or your obligations or services hereunder, including, without limitation, the FTC Guidelines; and/or (v) you or your employees’ negligence or willful misconduct.

15. Limitation of Liability

You hereby agree that Final Draft, including without limitation its respective directors, officers, employees, agents, members, partners, licensees and licensees, will not be liable for any indirect, special, exemplary, consequential or incidental damages, or any loss of revenue, profits or data, arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid to you under this Agreement in the twelve (12) months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred.

16. Disclaimers

WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS; HOWEVER, WE WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ERRORS OR INTERRUPTIONS PROMPTLY.

17. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with your website. You have independently evaluated the desirability of participating in the Program and are not relying on any representations, guarantee, or statement other than as set forth in this Agreement.

18. Miscellaneous

This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in or for Los Angeles County, California and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

19. Publicity

You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.

20. Confidentiality

Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists and purchase history, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to Final Draft.

21. Remedies to Final Draft

Violation of any of the terms or prohibitions contained in this Agreement may result in, among other things, (a) the immediate termination of this Agreement; (b) the withholding of Referral Fees due to you; or (c) the commencement of an action by Final Draft against you seeking, without limitation, injunctive relief, recovery of actual, statutory or punitive damages.

We have the right in our sole and absolute discretion to monitor your website at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your website for such purpose.

22. Force Majeure

You acknowledge that Final Draft’s servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond our reasonable control. Such temporary service interruptions will not constitute amaterial breach of this Agreement.

23. General Questions

If you have questions about any of the requirements set forth in this Agreement, please contact us at [email protected].