AFFILIATE PROGRAM AGREEMENT

(Green Dot Brands)

 

This Affiliate Program Agreement ("Agreement") is entered into by and between Green Dot Corporation, a Delaware corporation with its principal place of business at 3465 E. Foothill Blvd., Pasadena, CA 91107 ("GDC"), and each entity that applies to participate in the GDC Affiliate Program ("Affiliate"). Affiliate desires to participate in the GDC Affiliate Program in accordance with the terms of this Agreement.

 

By clicking the "Submit" button to apply online for the GDC Affiliate Program or otherwise applying for or participating in the GDC Affiliate Program, Affiliate agrees to be bound by the terms and conditions of this Agreement. If Affiliate is an individual applying for the GDC Affiliate Program on behalf of a company or other organization, Affiliate represents and warrants that Affiliate has all necessary authority to bind such company or organization to this Agreement.

 

GDC markets and services variously-branded prepaid debit cards, card-accessed checking accounts, credit cards and related payment products (collectively, "Cards") on behalf of its affiliated companies and as a card program manager for Card-issuing banks. GDC operates an online, performance-based marketing program at GreenDotAffiliates.com (the “GDC Affiliate Site”), under which unaffiliated third party advertisers, referred to in this agreement as “Affiliates,” may receive compensation for advertising, marketing and promoting the offer, distribution and sale of Cards (the "GDC Affiliate Program"). Third party advertisers that participate in the GDC Affiliate Program are not subsidiaries or corporate affiliates of GDC, or otherwise related to GDC in any way; use of the terms "GDC Affiliate Program" and “Affiliate” to describe participating third party advertisers is solely for consistency with customary practice in the industry and is not a legal designation.

 

Affiliate’s advertising, marketing and promotional activities may include (i) the placement of promotional offers containing textual or graphical coded hypertext links using buttons, banner advertisements and similar mechanisms preapproved by GDC (each, an “Offer”) that link from websites owned or controlled by Affiliate or that are part of Affiliate’s network of sub-affiliates (the “Affiliate Sites”) to Card application pages on various websites owned or controlled by GDC (“Landing Pages”); and (ii) opt-in email marketing. The Card brands that may be advertised, marketed and promoted under the GDC Affiliate Program may include Green Dot, Walmart Moneycard, GoBank, AccountNow, READYdebit, Achievecard and other brands that GDC owns or has the right to use (collectively, the “Green Dot Brands”). GDC shall in its sole discretion determine the Card brands that may be advertised through the GDC Affiliate Program.

 

A collection of Offers available for use by Affiliate (the “GDC Offer Library”) is available on the GDC Affiliate Site. The GDC Offer Library may include associated fee schedules and terms and conditions specific to each Offer (including without limitation restrictions on incentives that may be associated with any Offer). Compensation under the GDC Affiliate Program payable to each Affiliate shall be set forth in an insertion order for specified marketing campaigns (each, an “Insertion Order”).

 

From time to time, GDC may amend this Agreement by (a) posting an updated version of this Agreement on the GDC Affiliate Site with the date on which such updated version was posted, and (b) with respect to any material changes, notifying Affiliate via email or other written notice at the address provided by Affiliate to GDC. Thereafter, the amended version of this Agreement shall be deemed effective five (5) business days after the later of such posting or notice, and Affiliate will be conclusively deemed to have agreed to such amended version of this Agreement unless Affiliate notifies GDC of terminating this Agreement prior to such effective date; provided, that no amendment to this Agreement will affect Affiliate's right to receive any Marketing Fees (defined below) lawfully earned by Affiliate prior to such effective date.

 

1. Application; Registration Data. To join the GDC Affiliate Program, Affiliate must accurately and fully complete all required fields of the application or registration forms available at the GDC Affiliate Site. Upon receipt of an application from Affiliate, GDC may, in its sole discretion, accept or reject such application for participation in the GDC Affiliate Program. Affiliate agrees to (a) provide accurate, current and complete information about Affiliate as may be prompted by any application or registration forms on the GDC Affiliate Site or otherwise provided to GDC ("Registration Data"); (b) maintain the security of Affiliate's username and password; and (c) maintain and promptly update the Registration Data, and any other information Affiliate provides to GDC, to keep it accurate, current and complete.

 

2. Affiliate's Obligations. Affiliate acknowledges and agrees that it is solely responsible for the development, operation and maintenance of the Affiliate Sites and for all content and material that appears on the Affiliate Sites, except as provided in this Agreement. Upon acceptance into the GDC Affiliate Program, and subject to the terms of this Agreement, Affiliate may display one or more Offers, on one or more sections of the Affiliate Sites, email advertisements, and search engines in accordance with the specifications and requirements set forth herein. GDC may provide or make available to Affiliate from time to time in connection with the GDC Affiliate Program guidelines and instructions regarding the content, function, design, label and placement of the Offers ("Guidelines"). Subject to the Guidelines, the function, design, label and placement of the Offers will be determined by Affiliate. Notwithstanding the foregoing, GDC shall have sole discretion to withdraw or revise any Offers or any aspect thereof, or mandate the removal of any Offers from the Affiliate Sites, with or without cause, and Affiliate shall immediately comply with all requirements and instructions provided by GDC from time to time regarding the content, function, design, label and placement of the Offers (whether or not set forth in the Guidelines), including without limitation complete removal of any Offers. Without limiting the foregoing, Guidelines include the following:

 

(a) The Affiliate Sites shall not contain any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

 

(b) The Affiliate Sites shall contain only English language or Spanish language content.

 

(c) The Affiliate Sites shall not offer any additional incentives to consumers other than those included in an Offer, or offer incentives to end users to click on Offers or complete information relating to Offers. Examples of prohibited incentives include but are not limited to (i) offering or awarding cash, points, prizes or contest entries for clicking on an Offer; (ii) placing statements near Offers requesting that consumers "click" on the advertisement (e.g., "Please click here") or "visit" the sponsor (e.g., "Please visit our sponsor"); (iii) placing misleading statements near Offers (e.g., "Win $5,000"); (iv) displaying content or advertisements from GDC’s website on the Affiliate Sites; (v) changing any Offer in any way without GDC's prior written consent; (vi) redirecting traffic from an Offer to a website or web page other than a GDC-designated Landing Page; (vii) asking users to take advantage of advertisements or offers other than Offers made available by GDC for the GDC Affiliate Program; or (viii) replacing or modifying Affiliate tracking codes. GDC reserves the right to determine in its sole and absolute discretion whether an incentive is being offered in connection with an Offer in violation of this Section, and has the right to prohibit the Affiliate’s display of the offending Offer or all Offers.

 

(d) The Affiliate Sites shall not place Offers into Affiliate's framed environment.

 

(e) The Affiliate Sites, the Offers, and any email or other communications distributed by Affiliate in connection with the GDC Affiliate Program shall not contain any content that is potentially harmful, obscene, indecent, sexually explicit, gratuitously violent, defamatory, unlawful, misleading, deceptive, fraudulent, infringing of third-party intellectual property rights (including without limitation any copyrights, trademarks, trade secrets, or rights of privacy or publicity), or otherwise offensive or objectionable, and shall not promote gambling, illicit drugs, software pirating, hacking, phreaking or any spoofing, redirecting of websites in an effort to gain traffic, or committing any harmful or illegal act.

 

(f) The Affiliate Sites shall at all times feature customer-friendly site navigation and meet acceptable commercial and aesthetic standards, as determined by GDC in its sole discretion.

 

(g) Affiliate shall not (i) violate the terms or conditions of any search engines or search engine advertising program; (ii) engage in any search engine spam, doorway pages, cloaking, or similar activities; or (iii) bid on any trademarks or terms (including any variations of the Green Dot Brands not owned by Affiliate in any pay-per-click/"keyword"/"adword"/campaign unless given advance written permission by GDC or the trademark owner.

 

(h) Affiliate shall not advertise the availability of credit products or loans together with Offers for prepaid debit cards, or mention the terms “borrow money”, “get a loan”, “build credit” or similar terms together with Offers for prepaid debit cards.

 

(i) Rules Governing Sub-Publishing. Affiliate may solicit third parties that are not participating in the GDC Affiliate Program to distribute Offers (collectively "Sub-Affiliates"), provided that each Sub-Affiliate agrees in writing to be bound by and subject to the restrictions and conditions set forth in this Agreement. Each Sub-Affiliate shall, for purposes of this Agreement, be deemed to be an agent of Affiliate, and Affiliate shall be responsible in all respects for all acts and omissions of its Sub-Affiliates. Any breach by Sub-Affiliates of this Agreement shall be deemed a breach by Affiliate. Notwithstanding the foregoing, (a) GDC is not and shall not be party to any agreement between Affiliate and any Sub-Affiliate; (b) Affiliate shall not and is not authorized to make any commitments on behalf of GDC to any Sub-Affiliate, including but not limited to any payment or other commitment by GDC; (c) no license other than the licenses set forth in this Agreement may be extended by Affiliate to any Sub-Affiliate; and (d) nothing herein shall be construed as extending to any Sub-Affiliate the status of third-party beneficiary of any agreement between GDC and Affiliate, including without limitation this Agreement.

 

(j) Special Rules Governing Click-Through Campaigns. From time to time, an Affiliate may request a campaign wherein payment is based not on customer conversion but on the number of recipients clicking on an Offer (a "click-through rate" or "CTR"). For any CTR campaign, Affiliate will not employ any device that has the effect of inflating the click-through rate, including but not limited to automatic page-spawning, automatic redirects, "robots" or incentives offered to any recipient. GDC reserves the right to audit any website traffic at any time with or without cause. Should GDC determine, in the exercise of its reasonable business judgment, that Affiliate has employed any device to artificially inflate the click-through rate, (a) GDC may immediately terminate Affiliate's membership in the GDC Affiliate Program, (b) any unpaid Marketing Fees (defined below) attributable to the subject CTR campaign will be immediately forfeited, whether or not earned, and (c) upon demand, Affiliate will return to GDC immediately any Marketing Fees attributable to the subject CTR deal that had been previously paid.

 

(k) Restrictions on Use of Offers. Affiliate shall not modify or omit any terms of any Offer, or use any Offer other than for the purposes of promoting the Cards, and as otherwise contemplated by this Agreement. Affiliate shall publish or distribute Offers solely in accordance with the terms and conditions set forth in this Agreement and the Guidelines.

 

(l) Affiliate Responsibilities Governing Email Advertisements. Affiliate represents and warrants that it will not send, transmit or distribute any Offer or other promotion of the Cards via email without GDC’s prior written consent. If GDC’s consent is given, Affiliate shall conform to all terms of this Agreement, and Affiliate’s email must not constitute or be deemed "spam email." An email shall be deemed to be "spam email" if such email satisfies any one or more of the following criteria:

 

(i) The email fails to accurately identify as the sender of the email the entity who initiated the message;

 

(ii) The email contains a falsified sender domain name or non-responsive IP address;

 

(iii) The email contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the email;

 

(iv) The email fails to notify the recipient that he or she may unsubscribe or "opt out" from further email solicitations from the Affiliate;

 

(v) The email fails to contain or include a valid return email address or other internet-based mechanism whereby recipients can unsubscribe or "opt out" from receiving further email solicitations from the Affiliate;

 

(vi) The email fails to contain or include a valid physical postal address or P.O. box address for the Affiliate;

 

(vii) The email is sent to an individual who was not provided with an accurate, clear and conspicuous description of the marketing purposes for which his or her email address may be used at the time such email address was provided by the individual;

 

(viii) The email fails to provide clear and conspicuous notice that the message is an advertisement or solicitation;

 

(ix) The email is sent for the purpose (but not necessarily the sole purpose) of harvesting the email addresses in order to send future unsolicited emails; or

 

(x) The email contains nudity, profanity, sexually oriented materials, hate speech, or other obscene, offensive or otherwise objectionable content.

 

The return email address or other internet-based mechanism for unsubscribing or "opting out" from receiving further email solicitations shall remain valid for no less than thirty (30) days from the date of transmission of the email and Affiliate shall implement all requests to unsubscribe or "opt out" within ten (10) days of receipt of such request.

 

GDC may notify Affiliate of any complaint received by GDC regarding Affiliate’s email practices or any alleged violation of the above representations and warranties. Within forty-eight (48) hours of such notification, Affiliate shall respond to GDC and provide comprehensive details regarding any emails requested by GDC including, but not limited to, the time, date, sender/opt-in source IP address, and content of the questionable emails along with the applicable "opt-in" information (e.g., time, date and IP address of opt-in source) of the recipient. If Affiliate fails to provide such information satisfactory to GDC to demonstrate that the Affiliate did not send spam email or otherwise breach the above representations and warranties, then GDC may immediately suspend payment to Affiliate or terminate this Agreement, or both.

 

3. Marketing Fees.

 

(a) Marketing Fees. Except as otherwise specified by GDC or in an Insertion Order, within fifteen (15) days after the end of each calendar month, Affiliate shall provide an invoice itemizing all amounts due to Affiliate for advertising and marketing activity pursuant to this Agreement (“Marketing Fees”) occurring during such calendar month. GDC will pay Affiliate the undisputed amount of each invoice within thirty (30) days of receipt of an invoice. Notwithstanding the foregoing, upon receipt of an invoice in an amount less than fifty dollars ($50.00), GDC may in its discretion suspend payment of the invoice for an additional two (2) months and pay the invoice when the total balance of unpaid invoices equals or exceeds fifty dollars ($50.00); provided, however, that in no event shall an invoice in an amount less than fifty dollars ($50.00) be paid no later than ninety (90) days of receipt of an invoice. If GDC reasonably determines that Affiliate is in breach of a material term of this Agreement, GDC may notify Affiliate of such breach and thereafter suspend any payment of any earned but unpaid Marketing Fees until such breach has been cured. In the event of any dispute between GDC and Affiliate regarding the amount payable to Affiliate, Affiliate may request reasonable additional supporting documentation from GDC, and GDC shall provide such supporting documentation. The parties shall work in good faith to resolve any disputes regarding amounts payable to Affiliate.

 

(b) Calculation of Marketing Fees. Calculation of Marketing Fees shall be as provided in the fee schedules and other terms and conditions for each Offer, or as provided in an Insertion Order. Information necessary for calculation of Marketing Fees and preparation of invoices shall be made available by GDC at the GDC Affiliate Site, and such information shall be the exclusive source of information used for calculation of Marketing Fees.

 

(c) Refund of Marketing Fees. GDC may provide notice to Affiliate of any (i) traffic generated from advertisements, Offers or Links that GDC deems to contain misleading, fraudulent, or materially inaccurate information, (ii) traffic generated from advertisements, Offers or Links that GDC finds is artificially inflated or generated, or (iii) overpayments to Affiliate, duplicate entries or other errors. Promptly upon receipt of such a notice from GDC, Affiliate shall refund to GDC all Marketing Fees paid to Affiliate that were attributable to such improperly generated traffic or overpayments. GDC may also recoup Marketing Fees paid to Affiliate that were attributable to such improperly generated traffic or overpayments by way of offset against future Marketing Fees earned by Affiliate. GDC may also, in its discretion, immediately terminate this Agreement without further payment obligation to Affiliate upon a finding of such improperly generated traffic or overpayments.

 

(d) Advance of Marketing Fees. GDC may elect in its sole discretion to advance Marketing Fees to Affiliate prior to such Marketing Fees being earned, against which Marketing Fees earned thereafter shall be offset. Affiliate acknowledges and agrees that payment of such advances of Marketing Fees is subject to GDC's right to demand return of unearned Marketing Fees at any time and for any or no reason. Upon receipt of such demand, Affiliate shall promptly refund such unearned Marketing Fees to GDC.

 

4. Taxes. Each party shall be solely responsible for its own tax obligations in connection with its performance under this Agreement.

 

5. Proprietary Rights and License.

 

(a) Ownership. As between the parties, all right, title and interest (including without limitation all patents, copyrights, trademarks and other intellectual property rights) in and to the GDC Affiliate Site, Cards, Offers and the text, graphics, data, designs, computer programs, computer code, items, inventions, works of authorship, trademarks, service marks, concepts, materials, methods, processes and other content and information contained therein or relating thereto, shall remain with GDC or its licensors and/or suppliers.

 

(b) License Grant. GDC hereby grants to Affiliate for the term of this Agreement, a non-exclusive, royalty-free license to promote, reproduce, distribute and publicly display the Offers to promote the Cards in accordance with the terms of this Agreement.

 

(c) Restrictions. Affiliate shall not modify any Offers, documents, or other materials created or furnished by GDC without the prior written consent of GDC. Affiliate shall not display or otherwise use the trademarks, service marks, or trade dress of GDC (except as contained in materials provided by GDC), any financial institution that issues the Cards, or any payment network on which the Cards may be used (e.g., of Visa or MasterCard), without the prior written consent of GDC.

 

6. Compliance with Law. In performing its obligations under this Agreement, Affiliate will comply with all applicable federal, state and local laws and regulations, including without limitation, the federal CAN-SPAM Act, Gramm-Leach-Bliley Act, Fair Credit Reporting Act, unfair and deceptive trade practices laws, gambling laws, contest and sweepstakes laws, and laws governing lead generation (“Applicable Law”).

 

7. Non-exclusivity. Each party expressly acknowledges and agrees that the rights granted to the other party in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from soliciting third party content, links, banner ads or other materials, serving content, links, banner ads or other materials to third parties' websites, or hosting or permitting third parties to place links, content, links, banner ads or other materials on such party's website, whether or not, in each such case, such content, links, banner ads or other materials are competitive with the products, services, content or banner ads of the other party.

 

8. Warranty. Each party represents and warrants to the other party that (a) its websites and any email or other communications distributed by it in connection with the GDC Affiliate Program, do not and will not contain any materials actually or potentially obscene, indecent, offensive, defamatory, unlawful, misleading, deceptive, fraudulent, infringing of third-party intellectual property rights (including without limitation any copyrights, trademarks, trade secrets, or rights of privacy or publicity), or contain any harmful material such as viruses, worms or other malicious material, and (b) it is, and will be throughout the term of this Agreement, in compliance with Applicable Law.

 

9. Disclaimer. Neither party makes any representation or warranty that the operation of its respective websites will be uninterrupted or error-free. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GDC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GDC AFFILIATE SITE, CARDS, AND THE GDC AFFILIATE PROGRAM.

 

10. Indemnity. Affiliate shall indemnify and hold harmless GDC, any financial institution that issues Cards, any payment network on which the Cards may operate, and any payment processor or other service provider to GDC, their affiliates, and each of their directors, officers, members, employees and agents, against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, arising out of or in connection with (a) the Affiliate Sites and any email or other communications distributed by Affiliate in connection with the GDC Affiliate Program, (b) Affiliate's participation in the GDC Affiliate Program, (c) acts or omissions constituting a breach of any covenant, representation or warranty of Affiliate in this Agreement, or (d) acts or omissions of Affiliate that are inconsistent with the Guidelines.

 

GDC shall defend, indemnify and hold harmless Affiliate its affiliates, and each of their directors, officers, members, employees and agents, against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, arising out of or in connection with (a) violation of third party trademark or intellectual property rights in connection with Affiliate’s use of any and all content and images supplied by GDC; and (b) GDC’s breach of this Agreement.

 

11. Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, REVENUES OR DATA, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

12. Termination. Either party may terminate this Agreement for convenience upon prior written notice to the other party. Termination may be effected by delivery to the non-terminating party of notice as provided below. Upon termination, Affiliate will immediately, but in any event no later than three (3) business days following receipt of the termination notice, remove all Offers and other related information from the Affiliate Sites, cease all email and other promotional campaigns in connection with the Cards, and if requested by GDC certify to the same within two (2) business days after termination.

 

All covenants, representations and warranties made by a party under this Agreement which by their nature are intended to be performed after termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement. Without limiting the generality of the foregoing, Sections 8, 9, 10, 11, 12, 13 14 and 15 shall survive the termination or expiration of this Agreement. GDC shall pay Affiliate all Marketing Fees earned through the effective date of termination or expiration of this Agreement, subject to all conditions or limitations in this Agreement.

 

13. Confidentiality. Each party (the "Receiving Party") undertakes to retain in confidence all information that is disclosed by one party to the other that relates to the other party’s pricing and financial information, technical specifications of products, proposed release dates for products, marketing plans or strategies, distribution plans or strategies, projections, operations, sales estimates, business plans and performance results, plans for products or services, customer or supplier lists, nonpublic information of customers or consumers, scientific or technical information, concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases,  information and trade secrets, and any other information that should reasonably be recognized as confidential, whether or not marked or designated as confidential ("Confidential Information"); provided that each party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. Each party agrees to use reasonable best efforts to protect the Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. The foregoing restrictions shall not apply to any information that: (a) was known by the Receiving Party prior to disclosure thereof by the other party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by Applicable Law (but in such event, only to the extent required to be disclosed); or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, or in any event upon any termination or expiration of the term of this Agreement, each party shall return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party, except that the Receiving Party shall be entitled to keep one (1) copy of the Confidential Information if required to do so for legal and compliance purposes so long as such copy if kept in accordance with the terms of the Agreement . Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section.

 

14. Governing Law; Venue. This Agreement will be governed and construed in accordance with the laws of the State of California without giving effect its conflict of law principles. The parties hereby irrevocably consent to exclusive personal jurisdiction and venue in the state and federal courts located within the boundaries of the federal Northern or Central Districts of California with respect to any actions, claims or proceedings, including mediation or arbitration proceedings, arising out of or in connection with this Agreement, and agrees not to commence or prosecute any such action, claim or proceeding other than in the aforementioned venue.

 

15. Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, including Affiliate's participation in or termination from the GDC Affiliate Program (each, a "Dispute"), prior to initiating any lawsuit in a court of applicable jurisdiction, the parties shall first attempt to resolve the Dispute through good faith negotiation. During the negotiation, each party will honor the other's reasonable requests for information that is not privileged or proprietary and relates to the Dispute.

 

(a) Mediation and Arbitration. In the event that the Dispute cannot be resolved through good faith negotiation, the parties shall next refer the Dispute to a mutually acceptable mediator. Thereafter, if mediation cannot resolve the Dispute, the parties shall submit the Dispute to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The decision reached by such arbitrator may be entered as a judgment in any court of competent jurisdiction. The prevailing party in any Dispute shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with such Dispute.

 

(b) Equitable Relief. Either party, before or during any discussion, mediation or arbitration, may apply to a court of competent jurisdiction under this Agreement for injunctive relief where such relief is necessary to protect its proprietary interests or confidential information pending completion of the discussion, mediation or arbitration, or if the expiration of the statute of limitations for a cause of action is imminent.

 

16. Public Statements. Neither party shall make any press release or other public announcement regarding the other party’s participation in the GDC Affiliate Program without the prior approval of the other party.

 

17. Severability; Headings. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approxi­mates the intent and economic effect of the invalid provision. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.

 

18. Independent Contractors. Notwithstanding the use of the term "affiliate" herein or in connection with the GDC Affiliate Program generally, the parties to this Agreement are independent contractors, and no agency, common ownership interest, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party may take any actions which are binding on the other party or make any representations or warranties to third parties on behalf of the other party.

 

19. Notice. Unless otherwise specified herein, any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or by email with receipt acknowledged by the recipient; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to the address of the respective party as indicated above or in Registration Data.

 

20. Assignment and Transfer of Control. Affiliate may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of GDC. GDC may assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of Affiliate. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns.

 

21. Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Waiver of a breach of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.