This OtterAffiliate Agreement (“Agreement”) is a legal contract between you and Otter that applies to your participation in the Otter Affiliate Program (“Program”).In this Agreement, “Otter,” “we” or “us” means Restaurant Technology SolutionsLLC d/b/a “Otter”. By participating in the Program, or otherwise indicating your acceptance of this Agreement, you agree to this Agreement. If you are participating or registering on behalf of a business, then the term “you” means such business, and you represent and warrant that you have authority to bind that business to this Agreement.
BY ENTERING INTO THE AGREEMENT,EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN SECTION 8THIS AGREEMENT MAY BE MODIFIED FROM TIME TO TIME AS SET FORTH IN SECTION 9.
1. Program Overview.
a. The Program offers contracted participants the opportunity to earn referral fees for referring customers and others to Otter’s lead generation services and perform related promotional activities (collectively, “Promotional Activities”). This Agreement gives you(including any personnel, agents, or subcontractors you decide to engage) the right to conduct Promotional Activities.
b. You will be solely responsible for determining the most effective manner to conductPromotional Activities, including determining when, where, and how to conduct Promotional Activities, and the frequency with which you do so, in accordance with the terms of this Agreement. Except as expressly set forth in this Agreement, Otter will not control the manner or prescribe the method you use to conduct Promotional Activities contemplated by this Agreement. ThisAgreement authorizes you to conduct Promotional Activities consistent with the terms of this Agreement, but it does not obligate you to conduct anyPromotional Activities or other activities.You will only be paid for the services you render under the terms of thisAgreement. You are free to engage employees, agents, subcontractors and other personnel (collectively, “Personnel”) to assist you in the conduct of your PromotionalActivities, provided that you are solely responsible for their direction and control, and ensuring that they also comply with the terms of this Agreement.You will be solely responsible for all payments to, any Personnel who perform Promotional Activities pursuant to thisAgreement on your behalf, including as applicable, their retention, engagement, hiring or direction. You alone determine the method and means by which the work is done, including services provided by any of your Personnel, whose pay will be determined solely by you. You will be solely responsible for all costs and expenses of doing business, including all payments for services by any Personnel engaged by you to conduct Promotional Activities, and all taxes and other business expenses that may be incurred in connection with your conduct of Promotional Activities.
c. Your participation in the Program, including your conduct of Promotional Activities, is subject to the most current version of the Program participation terms, guidelines, schedules and other rules available on the Otter website or theNetwork Provider’s platform, as may be updated by Otter from time to time(“Promotional Terms”).
d. You agree to comply with all applicable laws in connection with this Agreement at all times. You agree to provide and maintain accurate, complete, and up-to-date information when registering for the Program and, if applicable, in your Program account once registered for the Program. Otter reserves the right to decline your registration for any reason, in its sole discretion. You are responsible for all activity that occurs under your Program account. Unless otherwise permitted by Otter, you may only possess one Program account and may not register for aProgram account if Otter cancelled a prior Program account that you registered for or used in the past. You will not use, distribute or modify any Otter trademarks, text, images, videos, documents or other content of Otter except as permitted in the Promotional Terms.
a. The Promotional Terms and/or applicable insertion orders outline how you may be eligible to receive fees for your Promotional Activities. If you do not comply with this Agreement, including any Promotional Terms, you will not be eligible to receive any fees that otherwise would have been payable to you under this Agreement, and Otter may withhold payment of such fees upon notice to you. For fees you are eligible to receive, payment will be made to you as described in the Promotional Terms. You agree that payment may be made to you through a Network Provider or other service provider designated by Otter. You acknowledge and agree that any fees paid pursuant to this Agreement are based on your output, and are not related to time worked. [Legal1]
3. Relationship of the Parties
a. The parties intend this Agreement to create the relationship of service recipient and independent contractor, and not that of employer and employee. You will not be treated as an employee of Otter for federal or state tax purposes, or for any other purpose. The parties are not employees, agents, joint venturers or partners of each other for any purpose. You have no authority to bind Otter or its affiliates and you agree not to hold yourself out as an employee, agent or authorized representative of Otter or its affiliates. If, as a matter of law, you (or your Personnel) are deemed an agent or representative of Otter, you agree to indemnify, hold harmless and (at Otter’s option) defend Otter and its affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
b. You(including any Personnel you engage) will not receive any vacation, illness, or holiday pay from Otter, nor will you (or any Personnel you engage) participate in any welfare, pension, profit sharing, share option or other benefit plans available to Otter’s employees.You will provide Otter or the Network Provider all requested tax forms and information, including, if applicable, federal employer identification number and business license number. You will be solely responsible to pay all applicable tax liabilities arising from payments made to you under thisAgreement, including, but not limited to, local, provincial and federal income taxes; Social Security and Medicare taxes; self-employment taxes and disability insurance. You are not eligible for workers’ compensation benefits. The parties acknowledge and agree that your conduct of Promotional Activities under thisAgreement exempt you from federal employment tax law under Internal RevenueCode section 3508, and any materially or substantially similar state provisions exempting direct sellers from state taxes.
4. Term and Termination
a. Term. The term of this Agreement will continue until terminated by a party as set forth in this Agreement. The parties acknowledge that the term of this Agreement does not reflect an uninterrupted service arrangement, as this Agreement guarantees you the rightto choose when, if at all, to conduct Program Activities during the term of this Agreement.
b. Termination. Either party may terminate thisAgreement, or any insertion order hereunder, in its entirety with or without cause, by giving at least seven (7) days’ prior written notice of termination to the other party (email sufficient). Otter may, in its sole discretion, terminate all or any part of this Agreement immediately for any breach of the Promotional Terms. Upon termination, your rights as set forth in this Agreement will immediately terminate and you will immediately cease conducting all Promotional Activities.Any outstanding payment obligations and Sections 3– 10 and outstanding payment obligations will survive the expiration or termination of thisAgreement. Termination of this Agreement will terminate all of your insertion orders; provided, termination of individual insertion orders will not terminate the Agreement.
5. Confidentiality. You agree to protect the confidentiality of any non-public information of a confidential or proprietary nature (including all moral rights to such proprietary or confidential information) that you obtain in connection with this Agreement (“Confidential Information”). You will not retain or use the Confidential Information except to the extent necessary for you to perform thisAgreement, and you will not disclose Confidential Information to any third party except to your accountants, lawyers or other agents on a confidential basis, or as required by law (for example, to comply with a subpoena), provided that prior to any disclosure required by law you give advance written notice toOtter and allow Otter to object and seek protective treatment or pursue other actions regarding such Confidential Information. The foregoing obligations will survive the termination of this Agreement. You agree this Agreement and all insertions orders constitute our Confidential Information and you will not disclose to any third party other than as necessary to participate in theProgram. You may not issue a press release or otherwise refer to Otter in any manner in connection with theProgram or this Agreement, without the prior written consent of Otter.
6. Indemnification. You will indemnify, hold harmless and(at Otter’s option) defend Otter and its affiliates, and their respective directors, officers, employees, and agents from and against all claims, losses, liabilities, damages, costs and expenses (including reasonable legal fees) with respect to any third party claim arising out of or related to: (a) your performance of and conduct in connection with the Program and this Agreement, including the activities of your personnel, agents and subcontractors; (b)allegations that any content or other material you distribute, display or perform infringes or violates any intellectual property right, right of publicity, or other proprietary right (except to the extent the allegedly infringing material was originally provided by Otter to you for such distribution, display or performance); (c) allegations that any of the messages you send or calls made or received that violate relevant Privacy andCommunications laws, including but not limited to CAN-SPAM Act, TCPA or relevant state laws; (d) your failure to satisfy any debt, obligation or liability, including your failure to comply with your obligations to any of your personnel, agents or subcontractors, including payment of wages, provision of benefits, and payment of employment taxes; or (e) your breach of thisAgreement. Unless Otter elects to control the defense, you will assume the defense of the indemnified claim through counsel designated by you and reasonably acceptable to Otter, and Otter may, at its expense, participate in the defense with its own counsel. You will not settle or compromise any indemnified claim, or consent to the entry of any judgment, without written consent of Otter, which will not be unreasonably withheld. Otter will reasonably cooperate with you in the defense of an indemnified claim, provided that you reimburse Otter for its costs and expenses as they are incurred to provide such cooperation.
7. Disclaimers and Limits ofLiability.
a. THE PROGRAM, AS WELL AS THE PLATFORMS AND SERVICES OF ANY NETWORK PROVIDER, IS PROVIDED “AS IS” AND “AS AVAILABLE.” OTTER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING IMPLIED WARRANTIES, IN CONNECTION WITH THE PROGRAM OR THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
b. WITHOUT LIMITING THE FOREGOING, OTTER MAKES NO GUARANTEES THAT YOUR PARTICIPATION IN THE PROGRAM ORTHE PROGRAM ACTIVITIES YOU CONDUCT UNDER THIS AGREEMENT WILL RESULT IN REFERRAL FEES, CONTINUED OR FUTURE BUSINESS WITH OTTER, OR OTHER BUSINESS OPPORTUNITIES FOR YOU.
c. YOU UNDERSTAND THATIN THE COURSE OF CONDUCTING PROGRAM ACTIVITIES, YOU MAY INTERACT WITH A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHERS. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH YOUR CONDUCT OF PROGRAM ACTIVITIES. OTTER ANDITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU,ANY POTENTIAL NEW USER, OR ANY OTHER THIRD PARTY.
d. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF BUSINESS OR LOSS OF PROFITS, IN CONNECTION WITH THE PROGRAM OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY TERMINATION OF THIS AGREEMENT BY OTTER WILL BE WITHOUT LIABILITY TO OTTER OR ITS AFFILIATES.
a. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to this Agreement, or any breach thereof, shall be settled by binding arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the Canadian Arbitration Association in accordance with its Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Toronto, Ontario. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction.The arbitrator will have the right to include in the award any relief which he or she deems proper in the circumstances, only to the extent permitted by theAgreement and applicable law, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses. Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding between you and Otter will not be consolidated with any other arbitration proceeding involving Otter or any other person or entity. This Section 8 is the full and complete agreement relating to the formal resolution of disputes arising out of or related to this Agreement and/or arising out of or related to any PromotionalActivities you may conduct. In the event any portion of this Arbitration section is deemed unenforceable or invalid, the unenforceable or invalid provision or provisions will be restricted or severed from this Arbitration section, in order to preserve as much of the parties’ Arbitration section as possible.
9. Modification of Agreement. Otter may amend or otherwise make changes to thisAgreement (including the Promotional Terms) by providing at least thirty (30)days’ prior written notice of the amendment. If you don’t agree to these changes, you may terminate this Agreement at any time prior to the effective date of the changes. By continuing to conduct any Promotional Activities after the effective date of the changes, you are agreeing to such changes.
10. Miscellaneous. Network Providers. Otter may work with Otter local partner network providers (“each, a“Network Provider”) that provide technology platforms and related services to support the Program, such as for Program registration, creation of your Program account, tracking, creatives, and payment of fees to you. You agree that we are not responsible for the products or services provided by a Network Provider.Participation in the Program requires that you agree to the terms and conditions of each Network Provider (“Network Provider Terms”). In the event of a conflict or inconsistency between any provision of this Agreement and the NetworkProvider Terms, the provision of this Agreement will control. Nonexclusive.The parties acknowledge and agree that this Agreement will be non-exclusive, and recognize that they may be engaged in similar arrangements with others.Without limiting any separate agreement that you and Otter may choose to enter into regarding exclusivity, nothing in this Agreement will preclude either party from doing business with any other entity or person, including the performance of marketing, sales, or promotional services for such entities or persons. Governing Law. This Agreement will be governed by and construed in accordance with the law of Ontario, Canada, without regard to the choice or conflicts of law provisions of any jurisdiction. Advice of Counsel. Each party acknowledges having had the opportunity to be represented by and/or advised by independent counsel of its own choice throughout all negotiations preceding execution of this Agreement; therefore, the terms of this Agreement will be given a neutral interpretation, and any ambiguities or uncertainty in this Agreement will not be construed against any party. No Assignment.You may not assign this Agreement, whether by operation of law or otherwise, without the prior written consent of Otter, and any attempted assignment without such consent will be void. Otter may assign this agreement to (a) an affiliate of Otter, or (b) in connection with the sale or transfer of substantially all of Otter’s business or assets to which this Agreement relates. Subject to the foregoing restriction on your assignment, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Notices.Any notice or other communication to Otter under this Agreement shall be in writing and either delivered to 777 South Figueroa Ave, 41st Floor, Los AngelesCA 90017 (effective when received) or by an overnight commercial delivery service (effective one business day after sending). You agree that we may use the email address you provide to us to send you notices under this Agreement(effective on the day sent). Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions of thisAgreement, or the failure of either party to exercise any option in thisAgreement, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. Severability. If any provision of this Agreement is or becomes invalid or non-binding, the parties will remain bound by all other provisions of this Agreement. Any invalid or non-binding provision will be severed or restricted, in order to preserve as much of the parties’ Agreement as possible and in light of the contents and purpose of this Agreement. EntireAgreement; Waiver; Interpretation. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings between the parties regarding such subject matter. For clarity, this Agreement does not amend, replace or supersede any Network Provider Terms, except that to the extent of any conflict or inconsistency between a provision of this Agreement and a provision of any Network Provider Terms, the provision of this Agreement will control. The failure of Otter to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Otter in writing. In thisAgreement, the words “including” and “include” mean “including, but not limited to.”