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TeraDact Affiliate Advertising Program Agreement

This Affiliate Program Operating Agreement (the “Affiliate Agreement”) is made and entered into by and between TeraDact Holdings, Inc (“TeraDact” or “we”), and you, (“you” or “Affiliate”) the party submitting an application to become a TeraDact affiliate. The terms and conditions contained in this Affiliate Agreement supplement our Terms of Service (together with the Affiliate Agreement, the “Agreement”, and found here: https://www.teradact.com/terms-of-service/) and apply to your participation in our affiliate referral program (“Affiliate Program”). [Each Affiliate Program offer (an “Offer”) may be for any product or service by TeraDact and may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and such terms and conditions are incorporated as part of this Agreement.] By submitting an application or participating in the Affiliate Program, you expressly consent to all the terms and conditions of this Agreement.

BY AGREEING TO THESE TERMS, YOU AND TERADACT AGREE TO RESOLVE MOST DISPUTES SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. IF YOU DO NOT WISH TO ARBITRATE DISPUTES WITH TERADACT, YOU MAY OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 15 (j). If you do not agree to these Terms, do not use our Services

1. Eligibility and Enrollment in the Affiliate Program

(a) You must have an eligible account with us in order to participate in the Affiliate Program. Employees, contractors, agents or representatives of TeraDact or our partners or vendors may not participate in the Affiliate Program. Participation in the Affiliate Program is subject to your compliance with this Agreement.

(b) You must submit an Affiliate Program application from our website at teradact.com. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within ten (10) business days. We may accept or reject your application at our sole discretion for any reason.

2. Obligations of the Parties

Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement:

(c ) We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you mdisplay on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). You can choose how to share your Media, subject to the terms of this Agreement. You are solely responsible for your Media.

You may only use the pre-approved Links made available to you by us in your Media, unless otherwise approved by us in writing. The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.

(d) We will credit your account for each Qualified Action (the “Commission”) once we have received payment for such Qualified Action from the relevant Customer. You hereby release TeraDact from any claim for Commissions if TeraDact has not received such funds from the Customers. A “Qualified Action” means a referral to an individual person who (i) accesses the Program Web Site via a valid Link provided by you, (ii) is a new user who is not an employee, contractor, agent or representative of you, TeraDact, or any of TeraDact’s affiliates, partners, or vendors, (iii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iv) is not using pre-populated fields, (v) completes all of the information required for such action within the time period allowed by TeraDact and (vi) is not later determined by TeraDact to be fraudulent, incomplete, unqualified or a duplicate (each such individual a “Customer”).

(e) We will initiate an electronic funds transfer to you for Commissions earned quarterly minus any disputed, refunds, or charge back amounts, provided that your account is currently greater than $0. All transfers to you will be payable in United States dollars. Accounts with a balance of less than $0 (e.g., because of the chargebacks mentioned below) will roll over to the next month, and will continue to roll over monthly until $0 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. We may also block or hold payments for violations of this Agreement or based on our policies or for compliance reasons, including when you have not provided adequate tax reporting information.

(f) We will automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by TeraDact in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to TeraDact in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide TeraDact with Affiliate’s reports within three (3) days after 30th day of the calendar month, and if TeraDact’s and Affiliate’s reported statistics vary by more than 10% and TeraDact reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then TeraDact and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then TeraDact’s numbers shall govern.

(g) We may offset any payment obligations to Affiliate that TeraDact may incur under this Agreement against any fees owed to TeraDact and not yet paid by Affiliate under this Agreement or any other agreement between TeraDact and Affiliate.

(h) You must provide TeraDact with your bank or other payment account details and a completed Form W-9 along with any other tax information TeraDact may request. You represent and warrant that all tax information you provide TeraDact is accurate, and you will inform TeraDact if any of the information you have provided changes. If you do not provide full and complete information to TeraDact, TeraDact may not transfer any Commission to you.

(i) Affiliate will:

  • (i) Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, the Media.
  • (ii) Ensure that all materials posted on the Media or otherwise used in connection with the Affiliate Program (i) are not illegal; (ii) do not infringe upon the intellectual property or personal rights of any third party; and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that TeraDact informs you that it considers objectionable (collectively, “Objectionable Content”).
  • (iii) Not make any representations, warranties or other statements concerning TeraDact or any of their respective products or services, except as expressly authorized herein.
  • (iv) Ensure that the Media does not copy or resemble the look and feel of the Program Web Site or create the impression that the Media is endorsed by TeraDact or a part of the Program Web Site, without prior written permission from us.
  • (v) Disclose your paid affiliation with TeraDact clearly and conspicuously in all advertising and Media and otherwise comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, the Media or your use of the Links, including the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255 et seq. (e.g., #TeraDactPaidAffiliate, #PaidAffiliate, or “This site is a paid affiliate of TeraDact”) and the FTC’s Native Advertising Enforcement Policy Statement and Native Advertising: A Guide for Business.
  • (vi) Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
  • (vii) Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to TeraDact for use as intended by TeraDact.
  • (viii) Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by TeraDact, or as required by applicable laws regarding such Offers.
  • (ix) Ensure TeraDact ads are not placed on any online auction platform (i.e. eBay, Amazon, etc.).
  • (x) Maintain on your website information alerting your members to the prohibition against each of the solicitation activities if you are an organization or corporation, such as a club or nonprofit group.
  • (xi) Annually provide a certification in the form requested by TeraDact, under penalty of perjury, that Affiliate has not engaged in any prohibited solicitation activities during the previous year.

(j) The following additional program-specific terms shall apply to any promotional programs set forth below:

  • (i) Email Campaigns. Affiliate will consult TeraDact’s online resources for a list of contacts to be suppressed from email communications (the “Suppression List”) prior to sending any email campaign. Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. TeraDact will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to TeraDact at [[email protected]]. Affiliate emails containing the Links may not include any content other than the Links, except as required by applicable law. As set forth below in the “Anti-Spam Policy” below, Affiliate agrees to otherwise comply with CAN-SPAM Act of 2003 in connection with all email campaigns.

    Affiliate will not mail or market to any contact present in the then-current Suppression List. Doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to TeraDact pursuant to this Agreement or otherwise.
  • (ii) Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by TeraDact in writing. Any pop-ups used for the Affiliate Program shall be clearly identified as Affiliate-served in the title bar of the window and any customer-side ad serving software used by Affiliate shall only have been installed on an end-user’s computer if (A) the function of the software is clearly disclosed to end-users prior to installation, (B) the installation is pursuant to an affirmatively accepted and plain-English end user license agreement, and (C) the software may be easily removed according to generally accepted methods.
  • (iii) Affiliate Network Campaigns. If Affiliate maintains its own affiliate networks, Affiliate will place the Links in such affiliate network (the “Network“) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate“). Affiliate will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate will maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept this Agreement in writing prior to obtaining access to the Links, and retain written records of such acceptance. Affiliate will ensure that each Third Party Affiliate discloses its connection with TeraDact clearly and conspicuously and otherwise complies with all applicable laws, including the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255 et seq. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to TeraDact the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of TeraDact in the Network upon written notice from TeraDact. Unless TeraDact has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by TeraDact, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.

3. Confidentiality

Except as otherwise provided in this Agreement or with the consent of TeraDact, all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning TeraDact or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.

4. Limited License & Intellectual Property

We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.

You may not alter, modify, manipulate or create derivative works of the Links or any TeraDact graphics, creative, copy or other materials owned by, or licensed to, TeraDact in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of TeraDact’s trademarks, service marks, copyrights, patents or trade secrets. You agree that TeraDact may use any suggestion, comment or recommendation you choose to provide to TeraDact without compensation. All rights not expressly granted in this Agreement are reserved by TeraDact, including without limitation all of TeraDact’s trademark rights and the goodwill therein.

5. Termination

This Affiliate Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Affiliate Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Affiliate Agreement for any reason, you will immediately cease all use of and delete all Links, plus all TeraDact intellectual property, will cease representing yourself as a TeraDact affiliate for such one or more Offers, and will delete all confidential and personal information related to TeraDact and its Customers. Each party’s rights to any payment due prior to the effective date of termination, as well as any other provisions that by their nature are intended to survive, will remain in full force and effect following the termination of this Affiliate Agreement.

6. Remedies

In addition to any other rights and remedies available to us under this Agreement TeraDact reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) TeraDact determines that you have violated this Agreement, (ii) TeraDact receives any complaints about your participation in the Affiliate Program which TeraDact reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, TeraDact reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.

7. Anti-Spam Policy

You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to TeraDact for approval by sending it to your TeraDact representative and upon receiving written approval from TeraDact of your email the email may be transmitted to third parties. You acknowledge and agree that TeraDact periodically reviews your actions and Links posted and sent in connection with this Agreement , and may terminate the Agreement for any reason at its sole discretion.

It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon TeraDact’s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon TeraDact’s approval.

8. Fraud

You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. TeraDact shall make all determinations about fraudulent activity in its sole discretion.

9. Representations and Warranties

You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, a) you have the right, power, and authority to enter into and perform this Agreement, to grant the rights granted in this Agreement, and to do so without obtaining the permission of any third party; (b) your execution, delivery, and performance of this Agreement does not, and will not during the term of this Agreement, breach or conflict with any of your other commitments, agreements, understandings or duties; (c) your Media will not infringe any copyright, trademark or other intellectual property or proprietary rights of any third party, including rights or privacy and publicity; and (d) you will comply with all applicable laws and guidelines, including without limitation the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255 et seq.

Subject to the other terms and conditions of this Agreement, TeraDact represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to TeraDact’s own business operations or TeraDact’s proprietary products or services.

10. Modifications

In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, TeraDact may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from TeraDact to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.

11. Independent Investigation

You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.

12. Mutual Indemnification

Affiliate hereby agrees to indemnify, defend and hold harmless TeraDact and its respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or TeraDact intellectual or proprietary property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links) or the distribution or publication of such Media.

TeraDact hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that TeraDact is not authorized to provide you with the Links.

13. Disclaimers

THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TERADACT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TERADACT DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. TERADACT EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF OTHER AFFILIATES OF TERADACT OR THEIR PRODUCTS OR SERVICES. TERADACT DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.

14. Limitation of Liability

IN NO EVENT SHALL TERADACT BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF TERADACT. IN NO EVENT WILL TERADACT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT TERADACT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. TERADACT’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE GREATER OF $100 AND THE AMOUNT OF COMMISIONS PAID IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

15. Dispute Resolution; Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND TERADACT TO
ARBITRATE CERTAIN DISPUTES AND LIMITS THE MANNER IN WHICH YOU AND TERADACT CAN
SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND TERADACT FROM
SUING IN COURT OR HAVING A JURY TRIAL. YOU AND TERADACT AGREE THAT ARBITRATION
WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS
ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. TERADACT AND YOU ARE
EACH WAIVING THE RIGHT TO TRIAL BY A JURY.

YOU AND TERADACT EACH ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE
INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING DISPUTES
AND ARE NOT INTENDED TO DELAY ADJUDICATION OF EITHER PARTY’S CLAIMS.

FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 15 (j), IF YOU WISH TO OPT OUT OF THE
REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.

(a) Claims This Section Applies To. This Section 15 applies to all Claims between you and
TeraDact. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed
in Section 15 (c), below) between you and TeraDact, whether based in contract, tort,
statute, fraud, misrepresentation, or any other legal theory, for which either party wishes to
seek legal recourse and that arises from or relates to these Terms, or the Services, including any claims related to the use or operation of the Services, the purchase of any products or services made available through the Services, all privacy or data security claims, and all claims related to the validity, enforceability, or scope of this Section or any portion of it.

(b) Informal Dispute Resolution Before Arbitration. If you believe you have a Claim against
TeraDact or if TeraDact believes it has a Claim against you, you and TeraDact will first
attempt to resolve the Claim informally to try to resolve the Claim more quickly and reduce
costs for both parties. You and TeraDact will make a good-faith effort to negotiate the
resolution of any Claim for 45 days (“Informal Resolution Period”), from the day either
party receives a written notice of a dispute from the other party that satisfies the
requirements of this Section 15 (b) (a “Claimant Notice”). The Informal Resolution Period is
designed to allow the party who has received a Claimant Notice to make a fair, fact-based
offer of settlement if it chooses to do so. The Informal Resolution Period may be extended
by the parties’ mutual written agreement.
You must send any Claimant Notice to TeraDact by certified mail, addressed to TeraDact
Acquisitions, LLC, Attn: Legal Department, 400 W Broadway suite 101-432, Missoula, MT
59802 or by email to [email protected]. TeraDact will send any Claimant Notice to you by
certified mail or email using the contact information you have provided to TeraDact. The
party sending a Claimant Notice (the “Claimant”) will ensure it includes (i) the Claimant’s
name, address, email address, and telephone number; (ii) a description of the nature of and
basis for the Claim, including the date(s) on which the Claim arose and the facts on which
the Claim is based; (iii) the specific relief sought; and (iv) a personally signed statement from
the Claimant themselves(and not their counsel) verifying the accuracy of the contents of the
Claimant Notice.
No arbitration demand (“Arbitration Demand”) may be filed or proceed before a Claimant
Notice is sent and the Informal Resolution Period has concluded. If you or TeraDact files an
Arbitration Demand without complying with the requirements in this Section 15 , including
the requirement to wait for the Informal Resolution Period to conclude, the other party
may seek relief from a court to enjoin such filing and for such other relief as the court
deems proper. The prevailing party in any such action shall be entitled to recover its costs
and reasonable attorneys’ fees incurred in seeking such relief.
To facilitate the parties’ efforts to reach an efficient resolution of any Claim, the applicable
statutes of limitation will be tolled, and all deadlines associated with arbitration fees
deferred, from the commencement of the Informal Dispute Resolution Process through the
date when suit or arbitration may be filed under these Terms.

(c ) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that
qualify for small claims court (provided that the small claims court does not permit class or
similar representative actions or relief) and any disputes exclusively related to the
intellectual property rights of you or TeraDact, including any disputes in which you or
TeraDact seek injunctive or other equitable relief for the alleged unlawful use of your or
TeraDact’s intellectual property (“IP Claims”), all Claims, including Claims that are not
related to intellectual property or intellectual property rights but are jointly filed with IP
Claims, that are not resolved in accordance with Section 15 (b) must be resolved by a neutral arbitrator through final and binding arbitration rather than in court. Claims subject to binding arbitration include, without limitation, disputes arising out of or relating to the interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of this arbitration provision or any portion of it.

(d) Binding Individual Arbitration. Except as otherwise expressly permitted by this Section 15 ,
any Claim may be resolved only through binding individual arbitration conducted by the
American Arbitration Association (the “AAA”), https://adr.org/, according to the Federal
Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). If you are a “Consumer,” meaning that you
only use the Services for personal, family, or household purposes, the then-current version
of the AAA’s Consumer Arbitration Rules, as modified by these Terms (the “Rules”), will
apply to Claims between you and TeraDact. If you are not a Consumer, the then-current
version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, as modified
by these Terms, will apply to Claims between you and TeraDact.
These Terms affect interstate commerce, and the enforceability of this Section 15 will be
substantively and procedurally governed by the FAA to the maximum extent permitted by
law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive
authority to make all procedural and substantive decisions regarding any Claim and to grant
any remedy that would otherwise be available in court, including the power to determine
the question of arbitrability. As allowed by applicable law, the arbitrator may only award
legal or equitable remedies that are individual to you or TeraDact to satisfy one of our
individual Claims (that the arbitrator determines are supported by credible relevant
evidence).

(e) Arbitration Procedure and Location. You or TeraDact may initiate arbitration of any Claim
not resolved during the Informal Resolution Period by filing an Arbitration Demand with
AAA in accordance with the Rules.
Instructions for filing a demand with AAA are available on the AAA website or by calling AAA
at 800-778-7879. You will send a copy of any demand for arbitration to TeraDact by
certified mail addressed to TeraDact Acquisitions, LLC, Attn: Legal Department, 400 W
Broadway suite 101-432, Missoula, MT 59802 or by email to [email protected]. TeraDact
will send any demand for arbitration to you by certified mail or, if no physical address has
been provided, by email using the contact information you have provided to TeraDact.
The arbitration will be conducted by a single arbitrator in the English language. You and
TeraDact both agree that the arbitrator will be bound by these Terms.
For Claims in which the Claimant seeks less than USD $10,000, the arbitrator will decide the
matter based solely on written submissions, unless the arbitrator decides that a formal
hearing is necessary. For Claims in which the Claimant seeks USD $10,000 or more, or
smaller matters in which the arbitrator determines a hearing to be necessary, hearings will
be conducted by video or telephone, unless the arbitrator determines an in-person hearing
to be necessary. If an in-person hearing is determined to be necessary, the site of any in-
person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and
TeraDact agree otherwise, any decision or award will include a written statement stating
the decision of each Claim and the basis for the award, including the arbitrator’s essential
factual and legal findings and conclusions.
Any arbitration decision or award may be enforced as a final judgment by any court of
competent jurisdiction or, if applicable, application may be made to such court for judicial
confirmation of any award and an order of enforcement.

(f) Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the
applicable Rules and these Terms.

(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a Claimant must
pay all costs incurred by the defending party, including any attorney’s fees and arbitration
fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by
existing law or by a nonfrivolous argument, (ii) the factual contentions for the Claim lacked
evidentiary support when filed or were unlikely to have evidentiary support after a
reasonable opportunity for further investigation; or (iii) the Claim was filed in arbitration for
any improper purpose, such as to harass the defending party, cause unnecessary delay, or
needlessly increase the cost of dispute resolution.

(h) Confidentiality. If you or TeraDact files a Claim in arbitration, you and TeraDact agree to
cooperate to seek from the arbitrator protection for any confidential, proprietary, trade
secret, or otherwise sensitive information, documents, testimony, and other materials that
might be exchanged or the subject of any discovery in the arbitration. You and TeraDact
agree to seek such protection before any such information, documents, testimony, or
materials are exchanged or otherwise become the subject of discovery in the arbitration.

(i) Mass Disputes. If 25 or more Claimant Notices are received by a party that raise similar
Claims and have the same or coordinated counsel, these will be considered a “Mass
Dispute” and the provisions of this Section 15 (i) will apply to all such Claimant Notices. A
Claimant Notice in a Mass Dispute may proceed to arbitration only as set forth below.

  • Applicable Rules. Any Arbitration Demands based on these Claimant Notices filed in arbitration shall be subject to the AAA’s then-current Mass Arbitration Supplementary Rules, as modified by these Terms. Any disputes over whether an Arbitration Demand should be considered part of the Mass Dispute will be decided by the AAA as an administrative matter. The following procedures are intended to supplement the AAA’s Mass Arbitration Supplementary Rules, and to the extent the procedures conflict with those Rules, to supersede them.
  • Initial Arbitrations. The parties shall identify an initial set of 20 Claimant Notices to proceed as Arbitration Demands in order to maximize efficiencies in the management, investigation, and arbitration of the remaining Claimant Notices in the Mass Dispute. The initial set shall be selected as follows. Counsel representing the Claimants in a Mass Dispute must notify the other party in writing (email will suffice) when all or substantially all Claimant Notices for the Mass Dispute have been provided. Counsel for all Claimants and counsel for the responding party each shall then select 10 Claimant Notices to proceed as Arbitration Demands. Claimants shall then file Arbitration Demands for the 20 selected Claimant Notices. No Claimant Notice or Arbitration Demand may be filed or deemed filed, and no related arbitration fees may be assessed, until the Claimant Notice is selected to proceed to arbitration following the process set forth in this Section. A single arbitrator will preside over each Arbitration Demand, and shall preside only over one Arbitration Demand, unless the parties agree otherwise.
  • Mediation. Upon conclusion of the 20 Initial Arbitrations (or sooner if the parties agree) and before proceeding with any other Arbitration Demands, the parties must engage in a single mediation applicable to all Claimant Notices in the Mass Dispute. The parties shall have 30 days following the conclusion of the last of the initial arbitrations to agree on a mediator. If they are unable to do so, the AAA may appoint one as an administrative matter. No additional Arbitration Demands may be filed until 30 days after such mediation concludes or 90 days after the appointment of a mediator, whichever is sooner.
  • Remaining Claimant Notices and Arbitrations. If mediation concludes with 100 or more unresolved Claimant Notices, any remaining Claimant or the receiving party to a remaining Claimant Notice may opt out of arbitration of all Claimant Notices that were not resolved in the initial 20 Arbitration Demands or mediation. Such an election may only be for all Claimant Notices remaining in the Mass Dispute, not a portion thereof. To be effective, such election must be communicated in writing (email suffices) to counsel for the other party within 30 days of mediation concluding. Claimant Notices released from the arbitration requirement must be resolved according to Section 15 .

If complaints based on Claimant Notices that were released from the arbitrationrequirement are filed in court, the Claimants may seek class treatment, although to the fullest extent allowed by applicable law, the putative classes must be limited to those Claimants in the Mass Dispute whose claims remain unresolved, and for which a Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis and may raise any other defenses available under applicable law.

If the mediation process concludes with fewer than 100 Claimant Notices remaining or if no timely election to opt out of arbitration is made, the AAA will randomly select 30 Claimant Notices (or the total remaining if less than 30) that comply with Section 15 (b) to proceed in arbitration in the same manner as described in Section 15 (i)(2), above. Once such arbitrations have concluded, the parties will repeat this process until all Claimant Notices in the Mass Dispute have been resolved.

(j) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted a version of these Terms by emailing [email protected]. To be effective, the opt-out notice must be on your own behalf and include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 15.

(k) Rejection of Modifications to this Section. You may reject any change we make to this Section 15 (except changes to notice addresses) as to you, by emailing [email protected] within 30 days of the date of the change. To be effective, you must send the notice or rejection on your own behalf, and you must include your full name, mailing address, and email address. The notice must clearly indicate your intent to reject changes to Section 15 . You may reject changes to Section 15 only as a whole. You may not reject only certain changes to Section 15 . If you reject changes made to Section 15 , the most recent version of Section 15 that you have not rejected will continue to apply.

(l) Two Years to Assert Claims. To the extent permitted by law, any Claim by you or TeraDact against the other must be included in a Claimant Notice within two years after such Claim arises; otherwise, the Claim is permanently barred, which means that you or TeraDact will no longer have the right to assert that Claim.

(m) Severability. If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15 ; and (iii) to the extent that any claims may proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with these Terms, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.

16. Governing Law & Miscellaneous

Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by TeraDact to enforce the terms of this Agreement. This Agreement contains the entire agreement between TeraDact and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that TeraDact shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether TeraDact “clicks through” or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without TeraDact’s prior written consent. TeraDact may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of this agreement that by their nature are intended to survive termination or expiration of the Agreement shall so survive. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This Agreement will be interpreted, construed, and enforced in accordance with the laws of the State of Montana, U.S.A., without reference to its choice of law provisions. Exclusive venue for any action hereunder will lie in the state and federal courts located in Missoula, Montana, U.S.A. and all parties hereby irrevocably consent to the jurisdiction of such courts.

By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.