Membership Affiliate Program Agreement (Terms).

Last Modified: September 27, 2021

PLEASE READ THIS MEMBERSHIP AFFILIATE PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the “Affiliate”) and 1st Choice Alliance L.L.C., (“1st Choice”). It describes how we will work together and other aspects of our business relationship. It is a legal document, so some of the language is necessarily “legalese,” but we have tried to make it as readable and enjoyable as possible.

The Membership Affiliate Program Agreement applies to your participation in our Membership Affiliate Program (the “Affiliate Program”).  These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. If we update or replace the terms, we or the Affiliate Tool will let you know via electronic means, which may include an in-app notification or by email. If you don’t agree to the update or replacement, you can terminate your membership as described below.

Definitions

“1st Choice Affiliate” means a company owned, operated, or controlled by 1st Choice Alliance L.L.C.

“Membership Affiliate Program” means our Membership Affiliate Program as described in this Agreement.

“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Tool. 

“Affiliate Link” means the unique tracking link placed on your affiliate website or promote through other channels.

“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.

“Affiliate Tool” means the tool that we make available to you upon your acceptance into the Affiliate Program and for you to use to participate in the Affiliate Program.

“Agreement” means this Membership Affiliate Program Agreement and all materials referred or linked to here.

“Commission” means an amount described in the Affiliate Tool (or, if applicable, in the Program Policies) for each Customer Transaction.

“Customer” means the actual authorized user of the 1ST Choice Products or Services who has purchased or signed up for the 1st Choice products or services after being an Affiliate Lead.

“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions may include customer purchases or customer signups, as further described in the Affiliate Tool.

“Customer Data” means all information that Customer submits or collects via the 1st Choice Products and or services and all materials that Customer provides or posts, uploads, inputs, or submits for public or member-only area display through the 1st Choice Products or Services.

“1st Choice Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our products and or services.

“1st Choice Products” means both the Subscription Service and Other Products.

“Program Policies Page” means the landing page: https://www.1stchoicealliance.com, where we will provide all the up-to-date guidelines and policies for the Affiliate Program.

“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include all of our marketing software, legacy sales, and marketing products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“Subscription Service” means our web-based sales software that is subscribed to, and developed, operated, and maintained by us, accessible via http://www.1stchoicealliance.com, 1stchoicehealthquote.com, 1stchoice.academy or another designated URL, and add-on products to our sales software. For the purposes of this Agreement, the Subscription Service does not include our legacy sales products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“We,” “us,” “our,” and “1st Choice” means 1st Choice Alliance L.L.C.

“You,” “Member,” “Partner,” and “Affiliate” means the party, other than 1ST Choice, entering into this Agreement and participating in the Affiliate Program.

Refund Policy

No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used membership periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. 

Exclusivity

This Agreement creates an exclusive agreement between you and us. Both you and we DON’T have the right to recommend similar products and services of third parties and work with other parties in connection with the design, sale, installation, implementation, and use of similar services and products of third parties.

Affiliate or Member Acceptance

The 1st Choice Affiliate, Partner, or Member (Affiliate) program is not for everyone. You will be branding the 1st Choice Logo, Products, and Services. For this reason, 1st Choice holds the right not to accept you into the affiliates program, terminate your affiliate membership at any time and for any reason.

The first thirty (30) days after your initial application are considered a probationary period. During this time, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before fully accepting you into the Affiliates program.

The moment you accept these terms during the application for membership on our platform, the terms and conditions of this Agreement shall apply in full force and effect until terminated, according to the terms set forth below.

You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.

Customer Transactions

  1. Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Tool (or, if applicable, in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link that was made available to you or by you. We will pay you a commission of 33% as described in the Affiliate Tool (or if applicable, in the Program Policies) for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Link made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of the first purchase or sign up (as applicable) of the Subscription Service or course by the Customer. You will receive your first Commission payment for that Customer Transaction after 30 days from that date. For example, suppose the initial Customer Transaction is today. In that case, your first Commission for this transaction will be after 30 days from today, and every 30 days after that, aslong as the Customer’s account remain active. Monthly payments continue to be received from the Customer.
  2. Eligibility. To be eligible for Commission, first and foremost, your Affiliate Membership must be active and in good standing. Supposed that your Affiliate Membership is active and in good standing (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred, (iii) a Customer must remain a customer during the locking period in the Affiliate Tool (or if applicable, in the Program Policies). You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if: (i) such compensation is disallowed or limited by federal, state, or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or 1st Choice Affiliates; (iii) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Membership Affiliate Program, or (v) the Customer already participates in our affiliate programs and is eligible to receive Commission in relation to the Customer Transaction under our program. If at any point you are eligible to receive a revenue share payment or Commission under our program at 1st Choice, that payment amount  will not change based on your participation in the Affiliate Program.

At our discretion, in competitive situations with other affiliates, we may elect to provide the Commission to the Affiliate that we deem to be the most eligible for Commission. We may discontinue Commission payments should any of the eligibility criteria outlined in this subsection fail to be met at any time.

  1. Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that are derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by 1st Choice. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the preceding, we may choose not to accept an Affiliate Lead at our reasonable discretion. If an Affiliate Lead does not purchase the Subscription Service within the time period described on the Affiliate Tool (or if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.

Engagement with Prospects.  Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid, then we may choose to maintain it in our database, and we may choose to engage with such Affiliate Lead. Any engagement between 1st Choice and an Affiliate Lead will be at 1st Choice’s discretion.

  1. Commission and Payment. To receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed through the Affiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account (iv) completed all required tax documentation for the Affiliate Tool to process any payments that may be owed to you.
  2. Requirements for Payment; Forfeiture. Notwithstanding the preceding or anything to the contrary in this Agreement, if any of the requirements outlined in section 4(a)(i-iv) remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5(a)(i-iv), then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.
  3. Commission Payment. We or the Affiliate Tool will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to in our discretion).Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us. Commission Amounts. We reserve the right to alter or change the Commission amount as per the Affiliate Tool.

Training and Support

We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time to time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.

Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks, and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.

During the term of this Agreement, if we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section.  You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with our style guide and Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use.  You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Proprietary Rights

  1. 1st Choice’s Proprietary Rights. No license to any software is granted by this Agreement. The 1st Choice Products are protected by intellectual property laws. The 1st Choice Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the 1st Choice Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the 1st Choice Content, or the 1st Choice Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use 1st Choice Content, you must comply with our Content Usage Guidelines here. 1st Choice, the Sprocket Design, the 1st Choice logos, and other marks that we use from time to time are our trademarks, and you may not use them without our prior written permission, except as otherwise outlined in this Agreement.

We encourage all customers, affiliates, and partners to comment on the 1st Choice Products, provide suggestions for improving them, and vote on recommendations they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the 1st Choice Products without payment to you.

  1. Customer’s Proprietary Rights. As between you and the Customer, the Customer retains the right to access and use the Customer portal associated with the 1st Choice Products. For the avoidance of doubt, the Customer will own and have all rights to the Customer Data.

Confidentiality 

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) 1st Choice customer and prospect information, whether or not otherwise designated as confidential. Confidential information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party before its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.  The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors, and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena, or legal process.

Opt-Out and Unsubscribing

You will comply promptly with all opt-out, unsubscribe, “do not call,” and “do not send” requests.  For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt-out, unsubscribe, “do not call,” and “do not send” requests.

Term and Termination

  1. Term. This Agreement will apply for as long as you participate in the Affiliate Program until terminated.
  2. Termination Without Cause. You or We may terminate this Agreement at any time and without cause. You must cancel your membership subscription before the next membership billing date to terminate this Agreement.
  3. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement by canceling your membership subscription before the next billing date.
  4. Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our Affiliate, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. If you or we terminate our business relationship, 1st Choice has the right to inform the client of the termination of our relationship.
  5. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above.  Provided, however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly outlined in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement.

Upon termination or expiration, you will discontinue all use of all tools we make available to you for your participation in the Affiliate Program, including but not limited to a branded website, insurance quoting tools, tax preparation tools, immigration tools, insurance enrollment tools, and all other tools not mentioned here but that are part of our Affiliate Program. You will delete all Affiliate links that you or we make available to you. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision 1st Choice with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a 1st Choice Affiliate on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; and or use our Trademarks,  (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with 1st Choice’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links and advertising are strictly prohibited; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own Affiliate Link to purchase 1st Choice products for yourself; and (vii) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.

Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your non-compliance with or breach of this Agreement, (d) your use of the Affiliate Tools, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Disclaimers; Limitations of Liability

  1. Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE 1ST CHOICE PRODUCTS, 1ST CHOICE CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE 1ST CHOICE PRODUCTS AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE 1ST CHOICE PRODUCTS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  2. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
  3. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
  4. Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
  5. Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, 1ST CHOICE SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

General

  1. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://1stchoicealliance.com/dashboard. We encourage you to review this Agreement periodically. If you don’t agree to the update, change, or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
  2. Applicable Law. This Agreement shall be governed by the laws of the State of Florida and the county of Miami Dade, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue, and jurisdiction of such action shall be in the state and federal courts in Miami, Florida.
  3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; an act of God; electrical, internet, or telecommunication outage that the obligated party does not cause; government restrictions; or other events outside the reasonable control of the obligated parties. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
  4. Actions Permitted. Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
  5. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
  6. Compliance with Applicable Laws. You shall comply and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal, or unethical marketing activities or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the 1st Choice Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury.  You will not directly or indirectly export, re-export, or transfer the 1st Choice Products to prohibited countries or individuals or permit the use of the 1st Choice Products by prohibited countries or individuals.
  7. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement will continue in effect.
  8. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To 1st Choice Allianc, LLC.: 18590 NW 67th Ave Suite 230 Hialeah, FL 33015 Attention: Legal

To you: your address as provided in our affiliate account information for you.

We may give electronic notices specific to you by email to your email address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

  1. Entire Agreement. This Agreement is the entire Agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. Our obligations are not contingent on the delivery of any future functionality or features of the 1st Choice Products or dependent on any oral or written public comments made by us regarding future functionality or features of the 1st Choice Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
  2. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control, or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of a merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law.
  3. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  4. Program Policies Page. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference
  5. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the 1st Choice Products, our trademarks, or any other property or right of ours.
  6. Sales by 1st Choice. This Agreement shall in no way limit our right to sell the 1st Choice Products, directly or indirectly, to any current or prospective customers.
  7. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
  8. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.

Exhibit A

1st Choice – Data Processing Addendum (Affiliates)

This Data Processing Addendum (“Addendum”) sets out the terms that apply as between 1st Choice and Marketing Affiliate when processing EEA personal data in connection with the Membership Affiliate Program.  This Addendum forms part of the Membership Affiliate Program Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Membership Affiliate Program Agreement (the “Agreement”) unless otherwise defined in this Addendum. 

  1. Definitions: (a) “controller,” “processor,” “data subject,” and “processing” (and “process”) shall have the meanings given to them in Applicable Data Protection Law; (b) “Applicable Data Protection Law” means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, E.U. Data Protection Law (in each case, as may be amended, superseded or replaced from time to time); (c) “E.U. Data Protection Law” means: (i) the E.U. General Data Protection Regulation (Regulation 2016/679) (“GDPR”); and (ii) the E.U. e-Privacy Directive (Directive 2002/58/E.C.); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) “Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.
  2. Purposes of processing. The parties acknowledge that in connection with the Membership Affiliate Program, each party may provide or make available to the other party Personal Data.  Each party shall process such data: (i) for the purposes described the Agreement; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
  3. Relationship of the parties. Each party will process the copy of the Personal Data in its possession or control as an independent controller (not as a joint controller with the other party). For the avoidance of doubt and without prejudice to the foregoing, 1st Choice shall be an independent controller of any Personal Data that it receives or shares with Affiliate in connection with the Membership Affiliate Program.
  4. Compliance with law. Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data. Neither party shall be responsible for the other party’s compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that it is processing of the Personal Data is lawful, fair, and transparent, and shall make available to data subjects a privacy statement that fulfills the requirements of Applicable Data Protection Law.
  5. International transfers. Where Applicable Data Protection Law in the European Economic Area (“EEA”), and/or its member states, United Kingdom and/or Switzerland (collectively for the purposes of this Addendum, the “E.U.’), applies to the Personal Data (“E.U. Personal Data”), neither party shall process any E.U. Personal Data (nor permit any E.U. Personal Data to be processed) in a territory outside of the E.U. unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent a Marketing Affiliate transfers E.U. Personal Data to 1st Choice and 1st Choice is located in a territory outside the E.U. that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law), 1st Choice agrees to abide by and process such E.U. Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time) (“Model Clauses”), which are incorporated by reference in, and form an integral part of, this Addendum. 1st Choice agrees that it is a “data importer” and the Marketing Affiliate is the “data exporter” under the Model Clauses (notwithstanding that 1st Choice may be an entity located outside of the EEA).
  6. Security. Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access (a “Security Incident”) and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of E.U. Data Protection Law/Applicable Data Protection Law.

Disclaimer:

This Agreement will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.