Go Ape Affiliate Operating Agreement
This Affiliate Operating Agreement, inclusive of the Go Ape Program Guidelines, (the “Agreement”) is made by and between you (“you” or “Affiliate”) and Adventure Forest LLC, d/b/a Go Ape, a Delaware limited liability company. This Agreement sets forth the terms and conditions applicable to your participation in the Go Ape Affiliate Program (the “Program”). Any person or entity that participates or attempts to participate in the Go Ape Affiliate Program must accept this Agreement without change.
As used in this Agreement, “we” and “our” and “Go Ape” shall mean collectively, Adventure Forest LLC and/or its parents, subsidiaries and related entities and “you” and “your” shall mean the Affiliate.
By submitting your Go Ape Affiliate Program application (the “Application”) and participating in the Program, you are confirming that you have read and understood this Agreement, you represent and warrant that you are lawfully able to enter into contracts, and you ACCEPT AND AGREE to be bound by this Agreement, including the Go Ape Program Guidelines (the “Program Guidelines”) throughout the full duration of your participation in the Program. This Agreement, inclusive of the Go Ape Program Guidelines, constitutes the entire agreement between you and Go Ape, and supersedes all prior or contemporaneous agreements, representations, warranties, and understandings with respect to Go Ape, the Program, and the subject matter of this Agreement. This Agreement shall become binding when/if your application is accepted by Go Ape.
1. Description of the Affiliate Program
The Go Ape Affiliate Program allows you to monetize your website, social media user-generated content, or online software application (“Site”) by placing on your Site an ASM link or booking widget (“Go Ape Link”) that will allow for customers to directly purchase tickets and book services through Go Ape’s booking engine (the “Network”).
When customers click through the Go Ape Link to purchase tickets, you can receive Program Fees for Qualified Purchases, as further defined and subject to the limitations contained in Section 7 Affiliate Program Fees of the Go Ape Program Guidelines.
Go Ape reserves the right to update, suspend, discontinue, change or otherwise modify the Program or the terms and conditions of this Agreement (including those in the Program Guidelines) at any time and in our sole discretion. Such changes shall be effective immediately upon being posted to the Go Ape Affiliate Website (the “Website”). YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH POSTING WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8 BELOW.
3. Compliance Requirements
As a condition of your participation in the Program, you must comply with this Agreement, including all Program Guidelines. You must promptly provide us with any information that we request to verify your compliance.
Further, you must comply with all laws, rules and regulations applicable to your participation in the Program, including, for example, the requirement to make proper and appropriate disclosures in compliance with the Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (“FTC Guidelines”). You must clearly state the following on your Site or any other location where Go Ape may authorize your display or other use of Go Ape Links or other authorized materials (e.g., images, videos, music, photographs, data, text or other graphics supplied to you by Go Ape (hereinafter, “Go Ape Content”): “[INSERT YOUR NAME] is a participant in the Go Ape Affiliate Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to goape.com and affiliated sites.” You shall not misrepresent our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between Go Ape and you or any other person or entity except as expressly permitted by this Agreement.
4. Customer Policies and Pricing
Customers purchasing Go Ape services through the Program are considered to be customers of Go Ape. All of our rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers when using our Website. We may change our policies and operating procedures at any time in our sole discretion. Go Ape shall solely handle any and all customer service issues arising from customers.
Go Ape will determine, in its sole discretion, the prices to be charged for our services sold under the Program in accordance with our own pricing policies.
You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with Go Ape, you will state that those customers must follow contact directions from Go Ape to address customer service issues.
You hereby represent and warrant to us as follows:
(i) The information submitted in your Application is truthful and accurate and the person completing the Application is at least 18 years old;
(ii) You are lawfully able to enter into this Agreement;
(iii) This Agreement constitutes a legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby;
(iv) Any material displayed on your Site will not: (a) infringe on Go Ape’s or any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulation; (c) be defamatory or libelous; (d) be lewd, pornographic or obscene; (e) promote violence or contain hate speech; (f) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (g) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
(v) You have independently considered your participation in the Affiliate Program and are not relying on any representation, guarantee, or statement by Go Ape other than as expressly set forth in this Agreement
GO APE MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE LICENSED MATERIALS (AS DEFINED IN SECTION 7 BELOW), OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, TITLE, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF ANY CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE). 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.
NO ADVICE OR INFORMATION OBTAINED FROM US OR THROUGH THE AFFILIATE PROGRAM, GO APE CONTENT, THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. Limited Licenses and Use of Go Ape Trademarks
For the term of this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (a) access our Network through the Go Ape Links solely in accordance with the terms of this Agreement and (b) solely in connection with such Go Ape Links, to use our logos, trade names, trademarks and similar identifying material (collectively, the “Licensed Materials”), only as provided to you through the Program and solely for the purpose of generating the sale of Go Ape services from your site.
You may not modify the Licensed Materials or any associated Go Ape Links in any way. You acknowledge that all use of Go Ape Links by you is intended to inure solely to the benefit of Go Ape, and you agree to not use the Go Ape Links in a manner that is disparaging to Go Ape.
You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and all of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.
You may not display the Licensed Materials in any manner that implies our sponsorship or endorsement of your products, services or site outside of your involvement in the Program.
We may update this Section at any time without prior notice to you and you will make these updates immediately. We reserve the right to take appropriate action against any use without permission or any use that does not conform to this Agreement and the Program Guidelines at any time and in our sole discretion
8. Term and Termination
The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party in accordance with this Section. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You may provide termination notice by terminating your participation in the Program and removing all Go Ape Links from your Site. Go Ape may terminate this agreement for convenience or otherwise upon immediate written notice to the email contact you provided on your Application.
We may hold accrued unpaid Program Fees as defined in the Guidelines for a reasonable period of time following termination to ensure that the correct amount is paid.
Upon any termination of this Agreement, you will immediately cease use of, and remove from your site, all Go Ape Links and Go Ape Content. All rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 3, 4, 5, 6, 8, 9, 10, 11 and 12 of this Agreement will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
Except as otherwise provided in this Agreement, you agree that all information related to this Agreement and/or your participation in the Program, including, without limitation, the terms of this Agreement, our customer information, business and financial information, our customer lists, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, the parties agree that you shall have no obligation to hold in confidence any such information that (a) is required to be disclosed pursuant to a subpoena issued by any court or administrative agency, (b) is to be disclosed to your accountants, attorneys, or other agents on a confidential basis, and or is (c) otherwise as required by applicable law, rule, regulation or legal process, provided that, in cases involving (a) and (c), you give prior written notice to Go Ape and allow Go Ape to intercede on our own behalf. You shall ensure that each of your employees, officers, directors, or agents who has access to the confidential information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement.
10. Limitations of Liability
You hereby agree that Go Ape, including without limitation its parent, subsidiaries and affiliates and their respective directors, officers, employees, agents, shareholders, members, partners, licensees and licensees, will not be liable for any indirect, special, exemplary, consequential or incidental damages, (including any loss of revenue, profits, goodwill, use, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Program Fees paid or payable to you under this Agreement in the twelve months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred.
YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS OR THE PRECEDING PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GO APE SHALL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE OR YOUR VIOLATION OF THIS AGREEMENT (INCLUDING ANY PROGRAM GUIDELINES), AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD GO APE, OUR OWNERS, SUBSIDIARIES, PARTNERS, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, MEMBERS, PARTNERS AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING COURT COSTS AND ATTORNEYS’ FEES) RELATING TO (A) YOUR MATERIAL BREACH OF ANY COVENANT, DUTY, REPRESENTATION, OR WARRANTY OF THIS AGREEMENT; (B) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (C) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (D) YOUR USE OF ANY CONTENT, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (E) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM GUIDELINES), OR (F) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
(a) No Agency. The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Go Ape or our respective affiliates. You will have no authority to make or accept any offers or representations on Go Ape’s or our affiliates’ behalf. You will not make any statement, in any form, that contradicts or may contradict anything in this paragraph.
(b) Assignment. You may not assign this Agreement without our express prior written approval.
(c) Governing Law; Venue. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Maryland, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Frederick County, Maryland and you irrevocably consent to the jurisdiction of such courts.
(d) Entire Agreement. This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, Program Guidelines, schedules, and other rules referenced in this Agreement or accessible on the Affiliate Site. In the event of any conflict between this Agreement and any Program Guideline, this Agreement will control. This Agreement (including the Program Guidelines) is the entire agreement between you and us regarding the Affiliate Program and supersedes all prior agreements and discussions.
(e) Severability. The provisions of this Agreement are independent and separable from each other and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid in whole or in part.
(f) No Waiver. Failure by Go Ape to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.