The below Service Agreement and related materials ("eFind Materials") may be translated into different languages. In the event of any conflict or inconsistency between any term in eFind Materials in the English language and any translation thereof in any other language, the English version shall prevail.
BY AGREEING TO AN APPLICABLE EFIND TERMS & CONDITIONS DOCUMENT, WHETHER BY CLICKING "I AGREE" TO SUCH TERMS AND CONDITIONS, SUBMITTING A PAYMENT FORM, OR BY OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT CUSTOMER IS BOUND BY THE TERMS OF THIS SA.
1. Acceptance. This Services Agreement ("SA") is incorporated by reference into and, along with the applicable Terms & Conditions document for the specific services Customer (as defined below) is accessing ("Terms & Conditions") and other documents incorporated by reference are collectively referred to as the ("Agreement"), by and between eFind, LLC, a South Dakota corporation with its principal place of business located at 1420 East Roseville Parkway, Suite 140-354, Roseville, CA 95661 USA("eFind"), and the business entity or person for whom you ("you") are acting and that will be using the Services (and/or any individual, entity, or successor entity, agency or network acting on Customer's behalf) (the "Customer") and sets forth the legally binding terms between Customer and eFind that govern the delivery of Services. You represent and warrant that you are entering into this Agreement on behalf of Customer and that you have the authority to bind Customer to this Agreement.
2. Services. eFind will deliver the services to Customer as further defined in the applicable Terms & Conditions, (individually, a "Service," and collectively, the "Services") between Customer and eFind. The Services are delivered via Customer's websites, blogs, or other properties approved by eFind (collectively, the "Sites").
3. Authorization. Customer authorizes eFind (a) to deliver the Services, and (b) to use, collect, manage, access, modify, disseminate, make derivative works of, and index the Data (defined below) for the purposes stated in this Agreement. Customer may request to add websites, blogs, or other properties to the Services, and eFind hereby reserves its right to approve or deny Customer's request.
4. eFind's Relationships. eFind has sole discretion to identify, select, and manage relationships with advertisers, merchants, partners and other third parties, establish pricing and other terms and conditions with advertisers, merchants, partners and other third parties, and take all actions relating to the foregoing in order to provide the Services hereunder.
5. Payment Terms.
6. License. Subject to the Terms & Conditions, Customer may provide eFind with certain types of information arising from or related to the Services provided under this Agreement (collectively the "Data").
7. eFind Data. Any Data that eFind aggregates with other data (including eFind's own data, third party data, and data relating to the Sites or the Services), and then disseminates, shall be referred to herein as ("eFind Data").
8. The eFind Platform. If applicable, to enable Customer's use of or the delivery of Services, Customer may need to create an account in a portal provided by eFind to Customer for the provision of Services, which may include a user interface, analytics, dashboard reporting, and other functionalities (the "eFind Platform"), and such use is subject to Customer's creation, and eFind's approval of, Customer's account ("Account"). eFind reserves the right to view, monitor, and/or record activity in Customer's Account without notice or permission from Customer.
9. Confidentiality. "Confidential Information" of a disclosing party under this Agreement ("Discloser") means all of the Discloser's non-public, proprietary or confidential information, including without limitation, the terms of this Agreement. Confidential Information of Discloser shall not be used by the other party hereto ("Recipient") for any purpose other than performing Recipient's obligations or exercising Recipient's rights as contemplated in this Agreement, and subject to the terms of this Agreement, Recipient will not otherwise at any time disclose the Confidential Information of Discloser to any third party without Discloser's prior written consent. Recipient agrees that it shall treat all Confidential Information of Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient's obligations under this Agreement with respect to any portion of the Confidential Information shall terminate if and when Recipient can demonstrate that such information: (a) was publicly available at the time it was communicated to Recipient by Discloser; (b) becomes publicly available after it was communicated to Recipient by Discloser through no breach of this Agreement by Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time it was communicated to Recipient by Discloser; (d) was rightfully communicated to Recipient free of any obligation of confidence subsequent to the time it was communicated to Recipient by Discloser; or (e) was developed by employees or representatives of Recipient independently of and without reference to any of Discloser's Confidential Information. Notwithstanding the foregoing, Recipient may disclose Confidential Information (i) to the extent required by law or (ii) to its employees, attorneys, accountants, banks and other financing sources and their advisors under an obligation of confidentiality; provider, however, Recipient uses commercially reasonable efforts to provide advance written notice to Discloser of such disclosure and work in good faith with Discloser to procure or obtain any reasonable protections with respect to the Confidential Information. Upon termination or expiration of this Agreement, or upon Discloser's written request at any time, Recipient shall promptly return to Discloser, or destroy at Discloser's written request, all documents and other tangible materials representing Confidential Information and all copies thereof.
11. Regulatory Compliance Requirements.
12. eFind IP. Customer may be required to access, implement, or use scripts and/or technology provided by eFind, including the eFind Platform (collectively "eFind IP") to enable eFind's delivery of the Service(s) to Customer. Customer shall use the eFind IP as directed by eFind, without modification, cover, or obscurity, and only on a property that eFind has approved in advance in writing. Upon eFind's written request, Customer must discontinue Customer's use of the eFind IP. Subject to the terms of this Agreement, eFind grants to Customer a nonexclusive, non-transferable, non-sublicensable, revocable, and royalty free right to access and use the eFind IP for the limited purpose of exercising Customer's rights and performing Customer's obligations expressly stated in this Agreement. Customer may not and shall not permit any third party to: (a) reverse engineer, decompile or otherwise attempt to discover the eFind IP; (b) interfere with the operation of the eFind IP; or (c) use the eFind IP in any way other than as expressly set forth in this Agreement. eFind retains all right, title and interest in and to the eFind IP, including all processes and derivative works and improvements thereto. All rights in and to the eFind IP which are not expressly granted to Customer herein are reserved by eFind.
13. Changes to the Services and eFind's Affiliate Advertising Services Agreement. eFind is constantly changing and improving the Services and the eFind IP. eFind may limit, suspend, or terminate Customer's access to or use of the Services or eFind IP if eFind has a reasonable basis to suspect that Customer's continued use of the Services or eFind IP is likely to damage or cause harm or risk to Customer, eFind, the Services, other customers, or end users or their data, devices, or systems. eFind may modify this Agreement at any time. Modifications to this Agreement will be posted on the homepage of eFind's website at https://affiliate.efind.com/legal. Changes will not apply retroactively and generally will become effective 14 days after they are posted. However, changes addressing new functions for a Service or made for legal reasons will be effective immediately. If Customer doesn't agree to any terms in this Agreement, Customer must not use the Services. Customer's continued use of the Services after the Effective Date of this Agreement or the effective date of any change constitutes Customer's acceptance of and agreement to follow and be bound by such changes.
14. Term and Termination. This Agreement is effective as of the date of Customer's acceptance date or the data when Customer begins using the Services, whichever is earlier ("Effective Date") and shall continue until terminated by either party upon written notice to the other party; provided, however, this Agreement shall continue to govern each then-existing Terms & Conditions until such agreement is terminated pursuant to its respective terms. If a party materially breaches any of its obligations under this Agreement, the other party may, in addition to its other rights at law or in equity, terminate the applicable Terms & Conditions and this Agreement: (a) immediately upon written notice to the other party of the breach, if the breach is not capable of cure, or (b) on thirty (30) days' written notice to the other party of the breach, if the other party fails to cure the breach within such thirty (30) day period if capable of cure. Upon termination of this Agreement, except to the extent expressly set forth in this Agreement or the applicable Terms & Conditions: (i) both parties shall remain liable for all accrued and unpaid amounts due under the Agreement; (ii) Customer's rights to use any intellectual property or data provided to Customer by eFind are terminated, including eFind IP; and (iii) Customer shall immediately destroy and purge eFind IP within Customer's possession or control. Any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive termination.
16. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party and its agents, affiliates and licensors from and against any and all losses, claims, damages, liabilities and expenses arising from third-party claims or any government or industry investigation, including the reasonable costs of investigation and reasonable attorneys' fees (collectively, the "Claims"), arising out of or related to the indemnifying party's breach of any representation, warranty, or covenant, or any other provision of this Agreement, or allegations thereof. Each party's obligation to indemnify the other party is subject to: (a) the indemnified party giving prompt written notice to the indemnifying party in the event that it becomes aware of any Claims or the possibility of any Claims requiring indemnification; (b) the indemnified party giving full cooperation with the indemnifying party, at the indemnifying party's expense, in responding to, defending or settling any such Claims; (c) the indemnifying party keeping the indemnified party informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying party, including the decision to defend or not defend the Claims or complaint; (d) the indemnified party not admitting any liability or entering into any settlement regarding the Claims on behalf of the indemnifying party; and (e) the indemnified party giving the indemnifying party sole control of the defense of the Claims and that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claims, including the payment of any award of damages and/or costs to any third party, will be paid by the indemnifying party, provided that no settlement shall be entered into by the indemnifying party that imposes any legal of financial obligation on the indemnified party without the indemnified party's prior written consent.
17. Limitation on Liability. Except with respect to either party's confidentiality, indemnification, and payment obligations, or fraud or willful misconduct, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR (a) ANY COMMERCIAL LOSS OR LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), NOT TO EXCEED THE FEES DUE UNDER THIS AGREEMENT IN A 6 MONTH PERIOD PRECEDING THE CLAIM.
18. Miscellaneous. Each party will, in all matters relating to this Agreement, act as an independent contractor. eFind's affiliates or subsidiaries may perform some or all of the Services. Customer shall promptly provide all materials, resources, access to systems, or information reasonably requested by eFind to provide the Services and understand that Customer's failure or delay in doing so may impact the delivery of Services; furthermore, Customer shall hold eFind harmless from any impact suffered by Customer in connection with such delay. This Agreement, and all disputes relating thereto, shall be governed exclusively by the laws of the State of South Dakota, without application of its rules regarding conflicts of laws. eFind may use Customer's logo and brand names to provide the Services and in its marketing materials indicating that Customer is a business partner of eFind. Except as expressly contemplated by this Agreement, neither party has, nor will represent that it has, any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity. If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision that best approximates the intent and economic effect of the affected provision. Neither party will be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. This Agreement may not be amended except by a writing signed by both parties hereto. Neither party shall assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party; except that a party may assign this Agreement without consent pursuant to a transfer of all or substantially all of such party's business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this provision will be void. This Agreement is binding upon valid heirs, successors, and assigns. This Agreement and the terms of any applicable Terms & Conditions constitutes the entire agreement between Customer and eFind regarding the Services. eFind's failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement constitutes the entire agreement between Customer and eFind and supersedes all prior agreements between Customer and eFind with respect to the subject matter herein. Except where otherwise indicated, any notice or communication under this Agreement shall be sent via email (a) if to Customer, to the email address submitted by Customer with Customer's Account, and (b) if to eFind, to firstname.lastname@example.org.
1. Acceptance. This Independent Controller Data Processing ("DP") is entered into by and between eFind and Customer (each, a "Party" and together, the "Parties"). This DP sets forth the legally binding terms between Customer and eFind that govern the Processing of Personal Data (as defined below) of under the Agreement.
2. Definitions. Processing For the purposes of this DP, the following definitions apply. Capitalized terms that are used but not otherwise defined herein shall have the meanings as set forth in the Agreement.
3. Role of the Parties. In performing their respective obligations under the Agreement, each Party may receive Personal Data which may be subject to Data Protection Laws and Regulations. The Parties acknowledge and agree that each Party is a separate and independent Controller in respect of such Personal Data and shall individually determine the purposes and means of its Processing of such Personal Data. The Parties further acknowledge that neither Party is responsible for determining the requirements of Data Protection Laws and Regulations applicable to the other Party.
4. Restriction on Sensitive Data. The Parties acknowledge and agree that neither Party shall provide or make available Sensitive Data to the other Party in connection with the Services. The Parties acknowledge and agree that eFind shall have no responsibility or liability for any Sensitive Data erroneously or inadvertently transferred under this DP. Nothing in this DP shall be interpreted to limit any restrictions under the Agreement regarding the types of Personal Data that may be provided by Customer to eFind.
5. Obligations of the Parties.
6. No Ownership or License. Nothing in this DP shall be construed to convey any ownership interest or license in the Personal Data that is contrary to the ownership interests and licenses set forth in the Agreement.
7. Data Subjects' Rights. Each Party hereby authorizes the other Party to release all Personal Data in its possession directly pertaining to a verified Data Subject request for data portability to the Data Subject or his/her authorized representative, without regard to whether such Personal Data are owned/licensed by eFind or Customer.
8. Regulators. Each Party agrees to: (a) promptly notify the other Party in writing of any question, complaint, investigation, inquiry, warrant, subpoena or proceedings from or brought by any public, governmental, and/or judicial agency or authority (each, a "Regulatory Request"), that relates to such other Party's (i) Processing of Personal Data in relation to the Services, or (ii) potential failure to comply with Data Protection Laws and Regulations; and (b) comply with any written litigation hold, document preservation notice, or similar legal hold requested by the other Party in connection with any Regulatory Request, lawsuit, or other claim, except to the extent required by applicable law.
9. Data Transfers.
10. Confidentiality. The Parties agree to take steps to ensure that any person acting under their authority who has access to the Personal Data is subject to an appropriate confidentiality obligation.
11. Limitation Of Liability. Each Party's liability arising out of or related to this DP, whether in contract, tort or under any other theory of liability, is subject to any limitation of liability as set forth in the Agreement and any reference to such limitation of liability of a Party means the aggregate liability of the Party under the Agreement and this DP together. Additionally, each Party shall be independently liable for its own Processing of Personal Data to the extent such Processing does not comply with Data Protection Laws and Regulations.
12. Applicable Law and Jurisdiction. This DP is and remains governed by and shall be construed in accordance with the law designated as applicable in the Agreement, except to the extent required otherwise under the SCCs.
13. Order of Precedence. Except as specifically set forth in this DP, the terms and provisions of the underlying Agreement shall remain unmodified and in full force and event. In the event of a conflict between the terms of the Agreement and the terms of this DP, the terms and provisions of this DP shall prevail with regard to data protection matters.
14. Modification. Modifications to this DP will be posted on the Legal Page of eFind's website at https://affiliate.efind.com/legal. Changes will not apply retroactively and generally will become effective 14 days after they are posted. However, changes addressing new functions for a Service or made for legal reasons will be effective immediately. If Customer does not agree to any terms in this Agreement, Customer must not use the Services. Customer's continued use of the Services after the effective date of this DP or the effective date of any change constitutes Customer's acceptance of and agreement to follow and be bound by such changes.
15. Termination and Survival. The Parties agree that this DP is terminated upon the termination of the Agreement.
16. Invalidity And Severability. If any provision of this DP is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect any other provision of this DP and all provisions not affected by such invalidity or unenforceability will remain in full force and effect.
17. Counterparts. This DP may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.