Affiliate Program Agreement
Last updated: March 5, 2024
Effective March 5, 2024
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT
CARRETLY.
This document is a legal contract between you (the
“Affiliate”) and us (“Mamello GmbH”). It explains our cooperation and
other aspects of our business relationship. This is a
legal document, so some of the language used is necessarily legal; however, we have tried to make the text as understandable as
possible.
The Affiliate Program Agreement applies to your participation in our
affiliate program (the “Affiliate Program”). However, these terms are so
important that we cannot allow you to participate in the Affiliate Program unless you agree to them.
We update these terms regularly. In addition, we reserve the right to replace these Terms in their entirety if the Affiliate Program changes, ends, or becomes part of an existing program, including our affiliate programs. If we update or replace the Terms, we will notify you by email. If you do not agree to the update or replacement of the Agreement, you may terminate your agreement with us as described below.

Definitions

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

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

“Affiliate Guidelines” means the affiliate guidelines that are made available to you.

“Affiliate Tool” means the tool we make available to you after you are accepted into the Affiliate Program to enable you to participate in the Affiliate Program.

“Agreement” means this Affiliate Program Agreement and any materials referenced or incorporated by linking into this document.

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

“Customer” means the authorized actual user of the Freebord Products who has purchased or subscribed to the Freebord Products.

“Customer Transactions” means Customers’ transactions that are eligible for a Commission under the “Customer Transactions” section of this Agreement. Customer Transactions may include Customer purchases and subscriptions.

“Customer Data” means any information submitted or collected by a Customer through the Freebord Products and any materials made available or published, uploaded, entered or submitted for public display by a Customer through the Freebord Products. “Freebord Content” refers to all information, data, text, messages,
software, audio, music, video, photos, graphics, images and tags that we include in our
Services.

“Freebord Products” includes both the Subscription Service and other products.

“Program Policies Page” means the landing page:

https://eu.freebord.com/affiliates/affiliate-terms-conditions/ . There we provide the

most current Affiliate Program Policies.

“We”, “us”, “our” and “Freebord” refer to Mamello GmbH.

“You”, “your” and “Affiliate” refer to the party other than Mamello

entering into this Agreement and participating in the Affiliate Program.

Non-Exclusivity

This Agreement is not an exclusive agreement between you and us. Both you and we have the right to suggest similar third party products and services and to collaborate with other parties in the design, sale, installation, implementation and use of similar third party services and services.
Becoming an Affiliate
After we receive your application to the Affiliate Program, we will review your application and inform you of our decision as to whether or not you may participate in the Affiliate Program. Before we accept your application, we may contact you to obtain additional information from you.
We may impose certain requirements or require you to have certain certification(s) before we accept your application.
If you join the Affiliate Program, these Terms will apply with full force and effect after you notify us of your acceptance until the Agreement is terminated in accordance with the terms below.
You will comply with the terms of this Agreement at all times, including all applicable Program Policies.
Customer Transactions
1. Affiliate Program Restrictions. We will pay you as set out in the Affiliate Program Agreement. e-Tool (or in the Program Policies, as applicable), a commission
for each Complete Freebord and Freebord Truck sold after the customer clicks on an Affiliate Link provided by you, provided that you remain eligible to receive a commission under the terms of this Agreement.
2. Eligibility. To be eligible for a commission, (i) a customer transaction must have occurred, you are not eligible to receive a commission or other compensation from us based on transactions from other products, or if: (i) such compensation is prohibited or restricted by federal, state or local law in the United States or by the law or regulation of your state; (ii) the customer pays or will pay such commission, referral fee or other compensation directly to you;
(iii) the commission payment was obtained through fraudulent conduct, misuse of the Affiliate Link, violation of any Affiliate Program policies we provide to you, misuse of the Affiliate Tool, or any other means we deem to be in violation of the purpose of the Affiliate Program; If at any time you are entitled to a revenue share payment or commission from another program with Mamello, that payment amount will not change as a result of your participation in the Affiliate Program. In competitive situations with other Affiliates, we reserve the right, at our sole discretion, to pay the commission to the Affiliate we believe is more entitled to the commission. We may stop paying commission if any of the qualifying criteria in this subsection are no longer met at any time.
3. Acceptance and Validity. You are only entitled to commission payments for Customer Transactions generated through the Affiliate Link we provide to you and which are accepted by Mamello.
4. Commission and Payment. To receive payment under this Agreement, you must: (i) have agreed to the terms of this Agreement; (ii) have completed all necessary steps to create your account in the Affiliate Tool in accordance with our instructions; (iii) have a valid and current payment method on file for that account in the Affiliate Tool; (iv) have maintained personal information such as address at https://eu.freebord.com/my-account/ so that the Affiliate Tool can process any payments that may be owed to you.
5. Requirements for Payment; Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the provisions set forth in Article 4(a)(i-iv) are still outstanding within six (6) months after the completion of a Customer Transaction, your right to receive all commissions resulting from Customer Transactions with the Affiliated Customer is forever forfeited (each, a “Forfeited Transaction”). We are not obligated to pay you any commission in connection with a Forfeited Transaction. Once you have met all of the requirements under Section 4(a)(i-iv), you will be entitled to receive commissions on Customer Transactions, provided that such Customer Transactions do not involve the Customer associated with a Forfeited Transaction. 6. Commission Payment. We always pay in EUR at the end of the quarter. Taxes. You are responsible for paying any taxes and fees (including bank fees) that may be applicable in relation to the commission. All amounts paid by us to you are subject to offset against amounts you owe us. Commission Amounts. We reserve the right to change the commission amount in accordance with the Affiliate Tool. Trademarks You grant us the non-exclusive, non-transferable, 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, and in the event that we provide you with our trademark in the Affiliate Tool, you may use our trademark provided that you comply with the requirements for use in this section. You: (i) may only use the images of our trademark that we provide to you without altering them in any way; (ii) may only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) must only use the logos on our eu.Freebord.com site and (iv) must immediately comply with our request to stop using them. You are prohibited from (i) using our trademark in a misleading or derogatory manner; (ii) using our trademark in a manner that suggests that we endorse, promote or approve of your services or products; and (iii)

use our trademark in violation of applicable law or in connection with obscene, offensive or unlawful subject matter or material.

Proprietary Rights
1. Mamello Proprietary Rights. The Freebord products are protected by intellectual property law. The Freebord products are our property or that of our licensors (if applicable). We retain all ownership rights in the Freebord products. You agree not to copy, rent, lease, sell, distribute or create derivative works based on the Freebord content or the Freebord products, in whole or in part, in any manner, unless you receive express written permission from us to do so. If you wish to use Freebord content, you must follow our guidelines for using our content here. Affiliates may use content from our official sites and social media. Deviations from this are not permitted and Mamello GmbH accepts no liability for them. Deviations must be approved in writing by Mamello GmbH. Violations will result in termination without notice. See the Termination chapter. Freebord, the Freebord symbol, the Freebord logos and other signs we occasionally use are our trademarks, which you may not use without our prior express written permission, unless this agreement contains provisions to the contrary. We ask all customers, affiliates and partners to comment on the Freebord products, make suggestions for improvement or vote for suggestions that they like. You agree that all such comments and suggestions are not confidential and that we own all rights to their use and implementation of the Freebord products without you being entitled to any payment. 2. Customer property rights. With regard to the relationship between you and the customer, the customer retains the right to access and use the customer portal for the Freebord products. For the avoidance of doubt, the Customer has and retains all rights
in and to the Customer Data.
Confidentiality
The term “Confidential Information” as used in this Agreement means all confidential information disclosed by one party (“disclosing party”) to the other party (“receiving party”), (i) whether orally or in writing and identified as confidential, and (ii) information about Freebord customers and prospective customers, whether or not identified as confidential. Confidential Information does not include information (i) that is or becomes generally known to the public without breach of any duty owed to the disclosing party, or (ii) that was already known to the receiving party prior to its disclosure by the disclosing party without breach of any duty owed to the disclosing party. The receiving party will: (i) protect the confidentiality of the disclosing party’s Confidential Information with the same degree of care it uses for its own Confidential Information, but no less than reasonable care, (ii) not use the disclosing party’s Confidential Information for purposes outside the scope of this Agreement, (iii) not disclose the disclosing party’s Confidential Information to third parties, and (iv) limit access to the disclosing party’s Confidential Information to its employees, contractors and agents. The receiving party may disclose the disclosing party’s Confidential Information if required to do so by any national, state or local law, ordinance, rule or regulation, or by subpoena or the requirements of a legal process.

Term and Termination

1. Term. This Agreement is valid for the duration of your participation in the Affiliate Program until terminated.

2. Termination without cause. Either you or we may terminate this Agreement by giving the other fifteen (15) days’ written notice. 3. Termination for Changes to the Agreement. If we update or replace the terms of this Agreement, you may terminate this Agreement by giving us five (5) days’ written notice, provided you send us your notice of termination within ten (10) days of us notifying you of the changes. 4. Termination for Cause. We may terminate this Agreement: (i) by giving you thirty (30) days’ notice of a material breach, provided that such breachß has not been remedied by the expiry of the term, (ii) by giving you fifteen (15) days’ notice of non-payment of any amount due to us, provided that such amount has not been paid by the expiry of the term, (iii) with immediate effect if you are the subject of a petition for bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) with immediate effect if we determine that you are acting or have acted in a manner that is or may be detrimental to the reputation or interests of us, our prospective customers or our customers.
5. Effect of Termination or Expiration. The expiration of this Agreement or the termination of this Agreement: (i) by us without cause, (ii) by you with cause, (iii) pursuant to the section entitled “Termination for Changes to the Agreement” by you, will not affect our obligation to pay you a commission provided that the relevant payment is recorded by us through the Customer Transaction within thirty (30) days of the date of termination or expiration. Under no circumstances will you be entitled to receive commissions under this Agreement if you are entitled to receive revenue share payments under the Agreement. We will not pay you commissions on Customer Transactions recorded by us after thirty (30) days of the date of termination or expiration set forth above. However, if the Agreement is terminated by you without cause or by us with cause, our obligation to pay you and your right to commission will also terminate on the date of such termination, regardless of whether you otherwise had a right to commission prior to the date of termination. Except as expressly provided in this section, you will not be entitled to receive any commission payment upon expiration or termination of this Agreement. Upon termination or expiration of this Agreement, you will cease all use of the Affiliate Tool we provide to you for your participation in the Affiliate Program. Upon termination or expiration of this Agreement, you will immediately cease all use of our trademarks and all references to this Affiliate Program on your website(s) and in any other accompanying materials. Affiliate Representations and Warranties
You represent and warrant that: (i) you have sufficient rights and authority to participate in this Affiliate Program (ii) your participation in this Affiliate Program does not conflict with any contracts and agreements you have entered into elsewhere,
You further represent and warrant that: (i) you will ensure that you comply with any trade or regulatory requirements applicable to your participation in the Affiliate Program (for example, by clearly indicating on any website you own and on which you provide an Affiliate Link that you are a Freebord Affiliate); (ii) you will not purchase advertisements linking to your website(s) or through an Affiliate Link that could be viewed as competing with Freebord’s advertising, including, without limitation, our branded keywords; (iv) you will not engage in “cookie dropping” or use pop-ups, false or misleading links, which is strictly prohibited; (v) you do not attempt to mask the
referring URL information; (vi) you do not use your own affiliate link
to purchase Freebord products for yourself.
Indemnification
You will indemnify, defend and hold us harmless, at your expense, from and against any and all
claims, suits, actions and legal proceedings (collectively,
“Claims”) brought by an unrelated third party against
us (and our officers, directors, employees, agents, service providers, licensors and Affiliates) arising out of or arising out of (a) your participation in the Affiliate Program, (b) your failure to comply with this
Agreement or your violation of any of its terms, (c ) your use of the
Affiliate Tool or (d ) our use of the Affiliate Marks. If we become aware of any such claim, we will notify you in writing within thirty (30) days and give you sole control of the defense or settlement of the claim and will provide you (at your expense) with all information and assistance you may reasonably request to conduct the defense or settlement of the claim. Without our prior written approval, you may not

You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make any concessions; (iii) creates liabilities not covered by these indemnities or imposes restrictions on us.

Exclusions; Limitations of Liability
1. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATION OR WARRANTY REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE
Freebord PRODUCTS, THE Freebord Content, THE AFFILIATE PROGRAM
OR THE AFFILIATE TOOL FOR ANY PARTICULAR PURPOSE. APIs
(APPLICATION PROGRAMMING INTERFACES) AND THE AFFILIATE TOOL MAY
NOT BE AVAILABLE AT ALL TIMES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE
Freebord PRODUCTS AND THE AFFILIATE TOOL ARE PROVIDED “AS IS” AND WITHOUT
WARRANTY OR REPRESENTATION OF ANY KIND. WE
DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND
REGARDING THE Freebord PRODUCTS AND THE AFFILIATE TOOL; THIS INCLUDES ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF LAWS AND THIRD PARTY PROPERTY RIGHTS. 2. No indirect damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. 3. Limitation of Liability. IN THE EVENT THAT, WITHOUT PREJUDICE TO THE OTHER TERMS OF THIS AGREEMENT, OUR LIABILITY TO YOU OR ANY THIRD PARTY IS FOUND, THE CONTRACTUAL PARTIES AGREE THAT OUR TOTAL LIABILITY SHALL BE LIMITED TO THE TOTAL AMOUNT OF COMMISSION TO WHICH YOU HAVE ACTUALLY OBTAINED A CLAIM FROM THE CUSTOMER TRANSACTIONS IN QUESTION IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. 4. Affiliate Tool. WE EXCLUDE ANY LIABILITY RELATING TO THE AFFILIATE TOOL YOU USE. WE MAKE NO PROMISE TO PROVIDE YOU WITH THE AFFILIATE TOOL. WHETHER OR NOT WE DO SO IS IN OUR SOLE DISCRETION.
5. Cookie Duration. COOKIES USED WITHIN THE AFFILIATE TOOL HAVE A CERTAIN DURATION. IF A PROSPECTIVE CUSTOMER DELETES THEIR COOKIES DURING THAT PERIOD, Mamello HAS NO OBLIGATION TO PAY YOU ANY COMMISSIONS OBLIGED.
General
1. Modifications; No Waiver. We may update and modify this Agreement in whole or in part, or replace it entirely. If we update or modify this Agreement, the updated Agreement will be provided to you through the Affiliate Tool and/or by email. The updated Agreement will take effect and become legally binding on the following business day after you are notified by us or the Affiliate Tool. If we change this Agreement, the “Last Modified” date above will be adjusted to reflect the date of the current version at https://eu.freebord.com/affiliates/affiliate-terms-conditions/. We strongly recommend that you review this Agreement regularly. If you do not agree to the update, modification or replacement of the Agreement, you may terminate it as described above. Any delay in exercising any right or remedy or failure to object shall not be construed as a waiver of that right or remedy or any other right or remedy. A waiver in one instance shall not constitute a waiver of any right or remedy in subsequent instances. 2. Governing Law. This Agreement shall be governed by the laws of the Federal Republic of Germany. If a claim is brought by either party in connection with this contract or any other legal dispute between the parties, the exclusive jurisdiction and venue for the claim shall be the District Court of Munich, Germany. 3. Force Majeure. Neither party shall be liable for any delay or non-performance due to acts of war, hostilities or acts of sabotage, force majeure, power, internet or telecommunications failures not caused by the obligated party, governmental requirements or other events that are reasonably beyond the control of the obligated party. Each of the two parties shall take all reasonable steps to mitigate the effects of events attributable to force majeure. 4. Limitation of Claims. With the exception of claims for non-payment or violation of a party’s property rights, no claims of any kind may be brought by the parties more than one (1) year after the cause of the claim in question has been established.

or in connection with this
agreement.
5. Relationship of the contracting parties. You and we agree that the agreement
between the parties does not establish a joint venture, partnership,
employment relationship or agency relationship.
6. Restriction on products: The affiliate may not promote
similar products in parallel to our program.
7. Compliance with applicable laws. You must ensure and ensure
that third parties you commission to carry out sales or offer activities comply with all relevant
national and foreign laws (this applies, among other things, and without limitation, to
export control laws and laws governing the sending of unsolicited email messages), government regulations, ordinances and court administrative
decisions. You are not permitted to pursue deceptive, misleading, illegal or immoral marketing activities or other activities
that may otherwise be detrimental to us, our customers or the public. EU export control laws and regulations and other relevant local export control laws and regulations must apply to
Freebord products. You will comply with the

EU uniform regulations (Regulation (EC) No. 428/2009 (EU Dual-Use Regulation)

and the associated delegated regulations and, in addition, the national German

regulations (Foreign Trade Act (AWG)/Foreign Trade Regulation (AWV) with

export list). You may not directly or indirectly export, re-export or transfer the Freebord products to

countries or persons designated as prohibited.

8. Severability Clause. If any part of this Agreement is declared

invalid or unenforceable under applicable law, the invalid or unenforceable provision will be

replaced by a valid, enforceable provision that most closely matches the intent of the original provision and the

remaining provisions of this Agreement will continue to be in force.

9. Notices. Notices will be sent to the contact addresses specified in this Agreement

(which may be changed by notice to the other party) and dated of actual receipt.
To Mamello GmbH, Sankt-Wendel-Str. 46, 81379 Munich, Germany , Attention: General
Counsel
To you: Your address provided to us in your Affiliate Account Information.
We may send electronic notices specifically to you by email to the email address(es) provided to you in your Account Information. We may also send notices by telephone to the telephone numbers provided to you in your Account Information.
10. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the Affiliate Program and supersedes all other electronic, oral or written offers and agreements between us.
We object to and reject any additional or different terms provided by you, including those you include in your order, acceptance
or website. Our obligations are not contingent on the availability of future features of the Freebord Products or on any oral or written public comments by us that refer to future features of the Freebord Products. You and we expressly request that this Agreement and all related documents be written in German. We may provide versions of this Agreement in languages ​​other than German. In such a case, the German version of this Agreement will govern our relationship. The translated version is for information purposes only and shall not be construed to alter the German version of this Agreement. 11. Assignment. You may not assign or transfer this Agreement, including, without limitation, any assignment or transfer resulting from a merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law, unless you obtain 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.

12. No Third Party Beneficiary. Nothing in this Agreement,

express or implied, shall confer any right, benefit or remedy under this Agreement of any kind or on any basis to any person or entity (other than the parties hereto), and no provision of this Agreement shall

This Agreement shall be construed accordingly.

13. Program Policies Page. We may modify the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated into this Agreement by this reference.

14. No Licenses. We grant you only the rights and licenses expressly set forth in this Agreement, and you are granted no other rights or licenses with respect to us, the Freebord Products, our trademarks, or any other rights or property of ours.

15. Sales by Mamello. This Agreement does not in any way limit our right to sell the Freebord Products directly or indirectly to current or prospective customers.

16. Authority. The parties represent and warrant that they have the necessary authority to enter into this Agreement and that it is binding on each party and enforceable according to the terms contained herein.

17. Survival of Provisions. The following sections will survive the termination or expiration of this Agreement: “Commission and Payment,” “Proprietary Rights,” “Confidentiality,” “Effects of Expiration or Termination,” “Indemnification,” “Exclusions,” “Limitations of Liability,” “Non-Solicitation,” and “Final Provisions.”

18. Data Processing and Protection Both parties acknowledge that each party may provide or make available personal data to the other party as part of the Affiliate Program. To the extent that personal data is processed in connection with the Project, the terms and conditions set out in Mamello’s Data Processing Agreement for Business Partners (available at: https://eu.freebord.com/affiliates/affiliate-terms-conditions/) shall apply, which are hereby incorporated into this document by reference. Each Party will process the personal data in its possession or control: (i) in accordance with Mamello’s Data Processing Agreement for Business Partners (ii) as an independent controller (and not as a joint controller with the other Party) (iii) for the purposes described in this Agreement and/or (iv) as otherwise permitted under applicable data protection law. For the avoidance of doubt, and without prejudice to the foregoing, Mamello is an independent controller of the personal data it receives or shares with its Affiliate Partner.