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Octane AI Affiliate Program Terms of Service

Octane AI Affiliate Program Terms of Service

You have elected to sign up to the Octane.ai Affiliate Program (the “Program”) offered by Octane.ai, Inc. (“Octane”).

These terms of service (“Terms of Service” or “Agreement”) govern the provision to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent (“Affiliate”) of the Program services (“Program Services”), and Affiliate’s usage of the same. By using the Program Services, Affiliate agrees to be bound by these Terms of Service to the exclusion of all other terms. If Affiliate does not unconditionally agree to all of the terms and conditions of this Agreement, then Affiliate should not use (and has no right to use) the Program Services. Octane may update these Terms of Service from time to time, and will notify Affiliate of such updates either via email or by posting such changes on the Octane Website, or other reasonable means. Affiliate’s continued use of the Program Services following notification of an updated version of the Terms of Service shall constitute Affiliate’s consent thereto. Octane may make modifications to the Program Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Program Services. This Agreement applies solely to the Program Services and no other products or services.

1. Program Description. Affiliate may have business contacts within Octane’s market that may be prospective customers (“Prospects”) of Octane. By signing up for the Program, Affiliate shall be able to refer such Prospects to Octane and track whether such Prospects become customers of Octane (each, a “Referred Customer”). Octane shall pay Affiliate a referral fee (“Referral Fee”) on certain revenues received from Referred Customers, as more fully described on the page located at www.octane.growsumo.com.

2. Program Services. Octane shall use commercially reasonable efforts to provide the Program Services. The Program Services may incorporate or link to components or services provided by one or more third parties (such services, “Third Party Services”, and such providers, “Third Party Service Providers”). Affiliate agrees that its use of those Third Party Services may be subject to terms and conditions and policies (including any amendments or modifications to those terms and conditions and policies) that are specific to such Third Party Services, and that it shall be bound by such terms and conditions and policies.

3. Payment. If Octane is engaged by a Referred Customer within 12 months after Octane’s receipt of Affiliate’s referral, Octane shall pay to Affiliate a Referral Fee equal to twenty percent of the gross revenue actually collected by Octane from each Referred Customer during the Payment Term. “Payment Term” means, with respect to each Referred Customer, the period beginning on the date that Octane is first engaged by such Referred Customer and ending 12 months thereafter. Octane shall make the payments of aggregate Referral Fees to Affiliate within 30 days after the end of the month in which the corresponding revenue was collected by Octane, together with a report showing the calculation of each Referral Fee in reasonable detail.

4. Term and Termination. The term of this Agreement begins on the date when Affiliate signs up for the Program on the Octane Website (the “Effective Date”) and continues until terminated as provided herein. Either party may terminate this Agreement for any reason at any time by written notice to the other party, including via email. Notwithstanding any termination, the obligation of Octane to pay the Referral Fees shall survive the termination of this Agreement until the end of the last Payment Term unless the Agreement is terminated by Octane for a material breach of this Agreement by Affiliate, in which case Octane’s obligation to pay the Referral Fees shall end on the date of termination.

5. Restrictions; Compliance with Laws and Other Matters. Affiliate shall not, and shall not permit any other party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Octane to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of Octane or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code via the Program Services; (ii) interference with others’ usage of the Program Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting; (iv) use of any false, misleading or deceptive TCP-IP packet header information in an e-mail or a newsgroup posting; (v) distribution of advertisement delivery software; (vi) infringement, misappropriation or other violation of any patent, trademark, copyright or other intellectual property or proprietary right; (vii) collection, storage, publication, transmission, viewing or other use of any content that, in Octane’s opinion, (1) is obscene, (2) constitutes or promotes child pornography, (3) is excessively violent, incites or threatens violence, or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual or the public; (viii) any other activity that places Octane in the position of fostering, or having liability for, illegal activity in any jurisdiction; (ix) any activity that violates the acceptable use policy or similar set of terms of any Third Party Service Providers for Third Party Services that have been made available to Affiliate; or (x) attempting to probe, scan, penetrate or test the vulnerability of an Octane system or network or to breach Octane’s security or authentication measures, whether by passive or intrusive techniques. If any IP address corresponding to any Affiliate Application becomes listed on Spamhaus, Spews, NJABL or any other reputable abuse database, then Affiliate will be deemed to be in material breach of this Section regardless of whether or not the IP numbers were listed as a result of Affiliate’s actions. Octane may suspend the provision of Program Services to Affiliate if Affiliate engages in any of the foregoing activities. Affiliate shall take all reasonable security precautions in connection with its use of the Program Services. Affiliate shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Program Services and shall change its passwords periodically. Octane may suspend the provision of Program Services to Affiliate or remove any data or content transmitted via the Program Services without liability (i) if Octane reasonably believes that any Program Service is being used in violation of this Agreement or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Octane shall use commercially reasonable efforts to notify Affiliate prior to suspending Program Services as permitted under this Agreement, or (iii) as otherwise specified in this Agreement. Information on Octane’s servers may be unavailable to Affiliate during a suspension of Program Services.

6. Affiliate Warranties. Affiliate represents and warrants to Octane that (i) the information Affiliate has provided for the purpose of establishing an account with Octane is complete and accurate, and (ii) it has the requisite power and authority to enter into this Agreement and to perform all of its obligations hereunder. Affiliate shall update its account information to maintain the accuracy of such information during the term of this Agreement.

7. Indemnification. Affiliate shall indemnify and hold harmless Octane from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to any actual or alleged use of the Program Services in violation of this Agreement or applicable law by Affiliate or any violation by Affiliate of any terms, conditions, agreements or policies of any Third Party Service Provider. Affiliate shall not settle any claim under this Section without the prior written consent of Octane.

8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL PROGRAM SERVICES ARE PROVIDED “AS IS” AND OCTANE (FOR ITSELF, ITS PARENT, AND ALL OF OCTANE’S SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER OCTANE (NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE PROGRAM SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. AFFILIATE ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF AFFILIATE’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.

9. Confidentiality. “Confidential Information” means any information disclosed by Octane to Affiliate on or after the Effective Date, either directly or indirectly, in writing, electronically, orally or by inspection of tangible objects, whether or not identified or designated as “Confidential” or a similar designation. Confidential Information includes but is not limited to information regarding Octane’s pricing, customers and prospective customers, vendors and vendor lists, costs, processes, know-how, designs, formulae, software, databases, methods of operation, sales techniques, marketing plans and strategies, finances, and any other business information relating to Octane, whether constituting a trade secret, proprietary information or otherwise. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no breach of this Agreement by Affiliate; (iii) is already in the possession of Affiliate at the time of disclosure as shown by Affiliate’s records; (iv) is obtained by Affiliate from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by Affiliate without use of or reference to Octane’s Confidential Information, as shown by competent evidence in Affiliate's possession; or (vi) is required by law or requested by a governmental, regulatory or self-regulatory agency to be disclosed by Affiliate, provided that, if practicable and permitted by law, Affiliate gives Octane prompt written notice of such requirement prior to such disclosure and reasonable assistance in obtaining an order protecting the information from public disclosure. Affiliate agrees not to use any Confidential Information for any purpose except to exercise its rights and perform its obligations under this Agreement, and not to disclose any Confidential Information to third parties. Affiliate shall not reverse engineer, disassemble or decompile any software or tangible objects which embody the Confidential Information. Affiliate shall take reasonable measures to protect the secrecy and avoid disclosure and unauthorized use of the Confidential Information. Nothing in this Agreement is intended to grant any rights to Affiliate under any intellectual property right of Octane. Affiliate shall indemnify, defend and hold Octane and its licensees, and each of their respective officers, directors, employees and agents (the “Indemnitees”) harmless from and against all damages or other amounts payable to a third party, as well as any reasonable attorneys’ fees and costs of litigation incurred by such Indemnitees, to the extent resulting from any claims, suits, proceedings or causes of action brought by such third party against such Indemnitee that arise from or are based on a breach of any of Affiliate’s obligations under this Section.

10. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT OR ANY TORT CLAIMS ARISING HEREUNDER, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION IS INTENDED TO OR SHALL LIMIT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF AFFILIATE UNDER SECTIONS 8 OR 10, OR IN THE CASE OF FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

11. Miscellaneous. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement and the exhibits hereto, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, whether written or oral, and shall not be modified except by a writing signed by the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of any dispute between the parties arising under or related to this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees. The headings in this Agreement are for convenience only and shall not alter or otherwise affect the meaning hereof. No waiver of any of the provisions contained in this Agreement shall be valid unless made in writing and executed by the waiving party. If any party shall on any occasion fail to perform any term of this Agreement and the other parties shall not enforce that term, the failure to enforce on that occasion shall not prevent enforcement of that or any other term hereof on any other occasion. If any section of this Agreement is held invalid by any law, rule, order, regulation, or promulgation of any jurisdiction, such invalidity shall not affect the enforceability of any other sections not held to be invalid.

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