DINE AWARE™ AFFILIATE AGREEMENT

Effective Date: 01/08/2018

Our Affiliates are an important part of the Dine Aware™ culture. With your help, we can make a global impact in helping the hospitality/foodservice industry communicate better with guests who have dietary restrictions. Your participation in the Dine Aware Affiliate Program is a critical step in making a difference. So, if you have any questions, concerns or need clarification please do not hesitate to get in touch. We believe in transparent and honest communication. For the quickest results, contact us at learn@dineaware.com

PLEASE ENSURE YOU READ THE ENTIRE AGREEMENT

YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DINE AWARE LTD., DINE AWARE™ (“Company”). BY SUBMITTING THE ONLINE APPLICATION TO REFER INDIVIDUALS, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.

OVERVIEW

1.1. This Agreement contains the complete terms and conditions governing your relationship with the Company and, if applicable, your participation in the Dine Aware™ Affiliate Program (the “Program”). The purpose of this Agreement is for the company to provide unique course links that the Affiliate will use to promote and refer Company courses to potential customers.

Please note that throughout this Agreement, “we,” “us,” and “our” refer to the Company, and “you,” “your,” and “yours” refer to the Affiliate.

1.2. You must be approved by the Company before your participation in Dine Aware’s Affiliate Program. Company reserves the right to withhold or refuse approval for any reason and without providing any further detail as to the reason(s) of the application rejection.

Once you have been approved, your continued right to participate is conditioned upon the ongoing compliance with the terms and conditions of this Agreement.

Failure of the Affiliate to observe the terms and conditions of this Agreement or privacy policy posted on the Company’s Site will disqualify Affiliate from participating in the Program.

Affiliate shall promptly notify Company in the event of a material change in its practices or strategy.

Approval may be withdrawn by Company, at any time and for any reason.

AFFILIATE OBLIGATIONS

2.1. You will have completed and submitted the online application on the Dine Aware website. We have evaluated your application and determined that you are a suitable affiliate candidate.

We will reject your application or cancel an existing Affiliate account if we determine that your site, social channels and/or other methods of company referral, collectively known within this agreement as “referral sources”, are unsuitable for our Program, including if it:

2.1.1. Promotes sexually explicit materials.
2.1.2. Promotes violence.
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
2.1.4. Promotes illegal activities.
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law.
2.1.6. Includes “Dine Aware” or variations or misspellings thereof in its domain name.
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other Affiliates in our program.
2.1.9. Promotes “get-rich-quick” schemes that have no tangible business value.
2.1.10. Is in violation of any other term or condition referenced herein.

2.1.11. You may not create or design a website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Dine Aware™ or any other affiliated business.

2.2. All Affiliates that engage in email marketing must have the consent of the recipient to send such email and shall maintain records evidencing such consent including, without limitation: (a) Subscriber opt-in date; (b) Registration source; (c) First name; (d) Last name; (e) email address; (f) Privacy Policy of Source Site; (g) Any other information collected; and (h) Affiliate will supply such records to the Company within one (1) business day of a request.

2.2.1. Unless otherwise approved in writing by Company, Affiliates may not offer incentives to users as a means to enhance the performance of any program; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
2.2.2. Affiliates may not bid on any variations of Dine Aware brand terms in any keyword based pay-per-click search engines, including, without limitation, Google, Bing, and Yahoo. This includes any “Trademark Plus” (TM+) bidding such as “Dine Aware discount” or “Dine Aware promo code”;
2.2.3. Affiliate website(s) must be fully functional at all levels;
2.2.4. Affiliate’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003;
2.2.5. Spawning process pop-ups are prohibited; and
2.2.6. Such other criteria as Company may from time to time determine, in its sole discretion.

2.3. All Affiliates shall maintain and post in a conspicuous manner on any website involved in the Program a privacy policy that clearly and adequately describes how consumer information is collected and used.

The privacy policy must fully and accurately disclose your use of third-party technology, use of cookies, and options for discontinuing use of such cookies.

The privacy policy and data protection mechanisms used must comply with all data privacy and protection regulations which apply within the countries the Affiliate conducts business (examples include but are not limited to EU Privacy Shield, GDPR, etc.). Company reserves the right to review your privacy policy as necessary. Failure to have a privacy policy may result in termination from the Program.

2.4. Dine Aware reserves the right, at any time, to review and reject the use of links, social postings, email scripts or other contents associated with referral sources and require that you change the placement and/or content or use to comply with the guidelines provided to you.

2.5. The maintenance and the updating of your site (if applicable) will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date for compliance with these terms of use, for compliance with applicable law, and/or to notify you of any changes that we feel should enhance your performance.

2.6. It is entirely your responsibility to comply with all applicable intellectual property and other laws that pertain to your site and/or other referral sources. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.

2.7. Affiliates have the ability to create custom subdomains to assist with their promotions. The Company reserves the right to reject or modify these domains for any reason.

2.8. Affiliate shall comply with all applicable laws, rules and regulations pertaining to this Agreement, including without limitation, consumer protection acts and anti-spamming Acts in your region and Dine Aware brand guidelines.

2.9. It is your obligation to review the Terms of Service for the Affiliate Program regularly. You must stay aware of any changes to the Dine Aware Affiliate Terms of Service, although Dine Aware will use its reasonable efforts to notify you of any changes.

DINE AWARE™ RIGHTS AND OBLIGATIONS

3.1. We have the right to monitor your site and other referral sources at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.

3.2. The company actively monitors traffic for fraud. If fraud is detected, your account will be made inactive pending further investigation. Fraudulent traffic includes but is not limited to: click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; fraudulent leads as determined and reported by Company’s clients; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate payable actions from the Program, and no activity or illicit activity seen in referred accounts.

3.3. If you inflate leads or clicks by fraudulent traffic generation, as determined solely by Company, you will forfeit your entire commission for the Program and your account will be terminated. In addition, in the event that you have already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from you.

3.4. Dine Aware reserves the right to terminate this Agreement and your participation in the Dine Aware Affiliate Program immediately and without notice to you should you commit fraud in your use of the Dine Aware Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Dine Aware shall not be liable to you for any commissions for such fraudulent activity.

TERM AND TERMINATION

4.1. This Agreement will begin immediately upon your acceptance of the application and will continue unless terminated hereunder. Either you or we may end this Agreement with or without cause, immediately.

Termination notice may be provided via email and if so you must immediately cease all advertising activities. All commissions then due will be paid during the next billing cycle, subject to any final accounting and quality assurance verification. Should any violations of Program terms be discovered, any pending payments may be forfeited.

4.2. Affiliates who are also customers of the Company may be subject to termination if their activity within their personal account is in violation of any corresponding terms of service.

MODIFICATION

5.1. We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email, (sent to the email address provided in the course of your registration with the Company).

Modifications may include but are not limited to, changes in the payment procedures and the Dine Aware Affiliate Program rules.

If any modification is unacceptable to you, you may terminate this Agreement. Your continued participation in the Program following the email of the change notice and the new Agreement on our site will indicate your agreement to the changes.

COMMISSIONS AND PAYMENTS

6.1. Dine Aware™ Affiliate program is PPS (pay-per-sale), per course sale.

We pay active Affiliates a one-time 10% commission on referred customers who register and have completed payment for a course based on the unique course registration links provided by us to you.

6.2. Affiliates are paid approximately every 30 days, provided that Company may, in its discretion, withhold payments until such time as referred customers have completed payment.

Payments shall be made by Company via the digital payment host PayPal, Inc. to the email address associated with the PayPal account you provided on your application. All payments are made in U.S. Dollars only.

Additional payment options (including, but not limited to, electronic payments whether directly or via a 3rd-party provider) may be added at any time. Should this occur, a notice will be sent via email with details and instructions for enrollment.

It is the sole responsibility of Affiliates to ensure that their payment information, regardless of means of transmission, is current and correct. Digital Payments (such as PayPal) sent to a valid email address cannot be reversed or retransmitted for any reason.

Additionally, digital payments may be subject to total dollar amount limits as imposed by the payment provider, and if that limit should be exceeded the Affiliate will receive as many separate payments as necessary to reach the full amount earned in the given payment period.

6.3. Company shall compile and calculate the data required to determine your eligible commission payment. Any questions or disputes regarding the data or payout provided by Company must be submitted in writing within five (5) business days from the most recent payment date, otherwise, the information will be deemed accurate and accepted as such by you.

6.4. Dine Aware will only pay Affiliates for commissions that are earned and tracked while active members of the Program. Any Affiliate that is removed from the Program because of non-compliant behaviour will no longer receive commissions from any referred customers.

Affiliates who voluntarily close their account will cease earning commissions immediately, as will any Affiliate who is removed due to the cessation of promotional activity (no referral activity for a period of one (1) year or more) and is not responsive to outreach attempts.

6.5. Dine Aware reserves the right to hold payment until commissions accumulate to the minimum amount of $10.00 USD.

6.6. This agreement in no way constitutes that you are an employee of the Company and it is your sole responsibility to submit and maintain appropriate tax records and filings as per the laws of your state, province, country.

6.7. In addition to any other remedies that may be available to Company, in the event of any breaches by you of this Agreement, you shall forfeit your rights to any amounts owed by Company to you.

PROMOTION RESTRICTIONS

7.1. You are free to promote your own websites, but any promotion mentioning Dine Aware could be perceived by the public or the press as a joint effort. Any pending balances owed to you will not be paid if your account is terminated because of unacceptable advertising. To avoid confusion, the following promotional restrictions are to be followed by all participating Affiliates:

7.1.1. Certain forms of advertising are always prohibited by Dine Aware. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name.
7.1.2. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once.
7.1.3. You may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address.
7.1.4. You may use mailings to individuals to promote Dine Aware so long as the recipient is already a known person to you and/or customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings.
7.1.5. You may post to newsgroups to promote Dine Aware so long as the newsgroup specifically welcomes commercial messages.
7.1.6. At all times, you must clearly represent yourself and your web site(s) as independent from Dine Aware and its clients.
7.1.7. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Dine Aware Affiliate Program.

7.2. Affiliates that advertise among other keywords or exclusively bid in their pay-per-click campaigns on keywords such as Dine Aware, Dineaware.com, www.Dineaware, DineAware, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be terminated from Dine Aware’s Affiliate Program. We will do everything possible to contact the Affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our Affiliate Program without prior notice, and on the first occurrence of such pay-per-click bidding behaviour.

7.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Merchant’s site (i.e., no page from our site or any Dine Aware’s content or branding is visible on the end-user’s screen).

As used herein, “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of Affiliate and non Affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software thereby causing pop ups, commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, Bing, Yahoo, AOL and similar search or directory engines); (c) set commission tracking cookies through loading of Dine Aware’s site in IFrames, hidden links and automatic pop ups that open Dine Aware’s site; (d) targets text on websites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.

7.4. We strongly advise Affiliates to stay compliant with the consumer advertising guidelines for full discloser and transparency on testimonials and endorsements. For example, all endorsements, reviews, testimonials on Dine Aware’s products and services, as well as relationships between other types of content websites (forums, blogs, microblogs and other Social Media channels) and Dine Aware must be clearly disclosed in a separate policy on the Affiliate site(s). We reserve the right to terminate our relationship with any non-compliant Affiliates.

7.5. Dine Aware Affiliates doing business within the EU are required to be compliant with GDPR regulations regarding data protection enacted on May 25, 2018. Company reserves the right to review your compliance as necessary. Failure to prove compliance may result in termination from the Program.

GRANT OF LICENSES AND CONFIDENTIALITY

8.1. Company grants to you a non-exclusive, non-transferable, revocable right to (i) access our site through links provided by the Company solely to be used in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose.

You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Dine Aware’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Dine Aware and the goodwill associated therewith (including any data derived from the Program) will inure to the sole benefit of Dine Aware.

8.2. Confidentiality. Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party.

For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Affiliate agrees that Company may divulge its personal and/or otherwise Confidential Information to an agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Affiliate has violated this Agreement or any applicable law or regulation.

8.3. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
DISCLAIMER

9.1 Dine Aware MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING Dine Aware SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF Dine Aware ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

9.2 The affiliate will read and agree to the statements in the Dine Aware Disclaimer link: http://www.dineaware.com/dine-aware-disclaimer/ as a part of accepting the terms of this Agreement and further agree to not violate or otherwise misinform the public of the intent of Dine Aware in your promotion of the Company through the use of your referral sources.

It is your obligation to review the Dine Aware Disclaimer regularly. You must stay aware of any changes, although Dine Aware will use its reasonable efforts to notify you of any changes. Failure of the Affiliate to observe this Dine Aware Disclaimer posted on Company’s Site will disqualify Affiliate from participating in the Program.

REPRESENTATIONS AND WARRANTIES

You represent and warrant that:
10.1. This Agreement has been duly and validly communicated and agreed to and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
10.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
10.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

LIMITATIONS OF LIABILITY

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.

INDEMNIFICATION

12.1. You hereby agree to indemnify and hold harmless Dine Aware and their subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that you infringed on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site.

12.2. You will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of anti-spam violations.

12.3. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.

MISCELLANEOUS

13.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Dine Aware. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other site or otherwise, that reasonably would contradict anything in this section.

13.2. Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non-assigning party).

13.3. This Agreement shall be governed by and interpreted in accordance with the laws of Barbados. Any dispute arising under this Agreement shall be resolved exclusively in an applicable Court of law within the jurisdiction of Barbados.

13.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

13.5. This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications of the parties, oral or written.

13.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.

13.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

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