Partner program terms & conditions

By clicking on “I agree” (or a similar box or button) when you sign up for a Partner Account you agree to be bound by the applicable sections of the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.) and Koan Adventures Ltd (“Gift Up!”). You can review the current version of the Agreement at any time at https://help.giftupapp.com/article/150-partner-program-terms-conditions. Gift Up! reserves the right to update and change the Agreement by posting updates and changes here: https://help.giftupapp.com/article/150-partner-program-terms-conditions. If a significant change is made, we will provide reasonable notice by email or in the Partner Dashboard. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement addresses different types of Partner activities. Part A applies to all Partners. Part B applies to Referral Partners. Part C applies to Development Partners. If you do not participate in partner activities described in Parts B or C then these Parts of the Agreement do not apply to you.

You must read, agree with and accept all of the terms and conditions contained in this Agreement, including Gift Up!'s Privacy Policy and Gift Up!'s Acceptable Use Policy, before you may become a Partner. For the avoidance of doubt, Gift Up!'s Privacy Policy and Gift Up!'s Acceptable Use Policy form part of this Agreement and are incorporated by reference. For the purposes of the Partner Program and this Agreement, all references to “Account” and “Services” in Gift Up!'s Acceptable Use Policy will be deemed to refer to “Partner Account” and “Services or Partner’s participation in the Partner Program”, respectively. Some types of Gift Up! Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Customer” means any individual that visits or transacts via the Merchant Store.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information and payment information.

“Development Store” means an account created in the Dashboard that is used by a Partner for (a) testing purposes, or (b) for the development and transfer of a Merchant Store to a Merchant.

“Merchant” means an individual or business that uses the Service to sell products or services.

“Merchant Agreement” means the agreement entered into between a Partner and the Merchant governing the Merchant’s use of the Partner’s services, including, if applicable, the installation and use of an Application.

“Merchant Data” means information (including personal information) relating to a Merchant, including but not limited to business, financial and product information and any Customer Data. Where Partner uses the Gift Up! API, Merchant Data may be delivered in the form of an API response.

“Merchant Store” means the Merchant’s commerce presence hosted by Gift Up!, including their online store and Point of Sale (POS). For clarity, a Merchant may have more than one Merchant Store.

“Partner” or “You” means an individual or entity that has agreed to the terms of this Agreement and participates in the Gift Up! Partner Program. The different types of Partners are listed below:

A “Referral Partner” is a Partner who has registered for a Partner Account via the Gift Up! partner program page and who promotes the service by registering, and being approved by Gift Up!, for a unique referral link (an “Affiliate Link”) to refer Merchants to Gift Up! via such Affiliate Link
A “Developer” is a Partner who has registered for a Partner Account via the Gift Up! partner program page and develops Applications to integrate with the Service

“Partner Account” means a Gift Up! Partner Program account.

“Partner Dashboard” means the internal administrative page available at https://giftupapp.firstpromoter.com/dashboard that allows Partners to manage their Partner Account.

“Partner Manager” means the Gift Up! employee designated by Gift Up! from time to time as the Partner’s primary Gift Up! contact.

“Payment Period” has the meaning as set out in Section 3.2.

“Partner Program” means the resources made available by Gift Up! to Partners.

“Referred Merchant” means any unique Merchant that: (a) has registered for a Gift Up! account; and (b) was introduced by a Referral Partner that actively promoted the Service.

“Revenue Generating Activity” means a revenue-generating activity carried out by Partner, as determined by Gift Up! including the following:

The purchase of a revenue pack or an add-on available within the Dashboard
Any pay as you go plan earnings paid to Gift Up!

A Revenue Generating Activity will be attributed to Partner on the date the Merchant makes the initial payment of subscription fees for the relevant Merchant Store.

“Service” means the Gift Up! hosted commerce platform available via www.giftupapp.com and any associated websites, products or services offered by Gift Up!

“Gift Up! Trademarks” means the trademarks, logos, service marks and trade names of Gift Up!, whether registered or unregistered, including but not limited to the word mark GIFT UP and the respective logos.

“Taxes” means all taxes, federal, provincial, state, local or other governmental sales, value-added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.

“Websites” means any websites that are owned, operated or managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

2. Partner Responsibilities

2.1. Marketing Activities

Partner will bear all costs and expenses related to Partner’s marketing or promotion of Gift Up! or Partner’s other products or services associated with Partner’s participation in the Partner Program (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Gift Up! in its sole discretion.
In no event will Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In conducting all Partner Marketing Activities, Partner will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”. Unless Partner has secured the applicable Merchant’s consent first, Partner will not email any Merchant whose email address they have received via Gift Up!
Without limiting the generality of Section 2.1.2, Partner will (i) not send any email regarding Gift Up! to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information in any email regarding Gift Up! the Service or the Gift Up! platform; and (iii) not imply that such emails are being sent on behalf of Gift Up!
A Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Gift Up!; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Gift Up!; (iii) make any false, misleading or disparaging representations or statements with respect to Gift Up!; (iv) solicit Merchants to leave the Gift Up! Service; (v) copy, resemble or mirror the look and feel of Gift Up!'s websites, Trademarks or Services or otherwise misrepresent Partner’s affiliation with Gift Up!; or (vi) engage in any other practices which may adversely affect the credibility or reputation of Gift Up!, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Gift Up! or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates the Acceptable Use Policy.

2.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

2.3. Partner Duty to Inform

Partner will promptly inform Gift Up! of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Gift Up! by any third party.

2.4. Other Partner Terms

If the Partner is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Partner activities.
You confirm that you are becoming a Partner for the purposes of carrying on business activity and not for any personal, household or family purpose.
To become a Partner, Partner must create a Partner Account by providing all information indicated as required. Gift Up! may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Gift Up! will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Gift Up! cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
If you sign up for a Partner Account on behalf of your employer, your employer will be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by Partner’s employees, agents or subcontractors.
Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
Partner acknowledges and agrees that Gift Up! may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Gift Up!'s website, available at https://help.giftupapp.com/article/39-terms-conditions and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Gift Up! will provide reasonable notice by email, posting a notice on the Partner Dashboard. Partner’s continued participation in the Gift Up! Partner Program after the amended Partner Program Agreement is posted to Gift Up!'s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Gift Up! Partner Program.
Partner acknowledges and agrees that Partner’s participation in the Gift Up! Partner Program, including information transmitted to or stored by Gift Up!, is governed by the Gift Up! Privacy Policy found at https://help.giftupapp.com/article/40-privacy-policy

3. Fees and Payments

3.1. Revenue Sharing Plans

Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner will be entitled to receive certain fees from Gift Up! (the “Fees”).

The Fee will be 10% of any revenue paid to Gift Up! by Merchant for up to 10 referred Merchants
The Fee will automatically increase to 20% if Partner refers 10 or more Merchants to Gift Up! who accrue charges in any given 12-month period.
The Fee is limited to the first 12-months of the Merchant's relationship with Gift Up

3.3. Payment

Fees due to Partner will be calculated by Gift Up! once per month upon receipt of payment from the Merchant, for each month that the Referred Merchant Store is active, provided that Partner has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period (as set out in Part B, Section 3.1).
Partners are responsible for all applicable Taxes that arise from or as a result of any activities under this Agreement or with respect to Partners dealings with a Merchant. Partner is responsible for determining if Taxes are payable on such transaction, and if so, self-remitting Taxes to the appropriate tax authorities.
There is a $50 minimum payout level set on all payments to Partners.

3.4. Additional Payment Information

All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld by Gift Up! during the period of investigation.
Notwithstanding anything to the contrary in this Agreement, Gift Up! will not be responsible to pay any Fees:

a. related to amounts that have been refunded to Merchants by Gift Up!; b. for a Referred Merchant created or owned in whole or in part by a Partner; c. related to fraudulent sales; d. related to revenues that have been subject to chargebacks; or e. to Partners who are employed by the Merchant to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).

If any Fees paid by Gift Up! are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.4.2, or to have been paid in error, Gift Up! will have the right, at its sole discretion, to: (A) reclaim any Fees paid to Partner in error; or (B) set off the amounts described in Section 3.4 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Gift Up!, Partner will pay to Gift Up! the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
Gift Up! reserves the right to modify the Fees or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on the Partner Dashboard. In the event of any disputes over Fees, Gift Up!'s determination will be final and binding.

4. Termination

4.1. Termination

Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.
Fraudulent or other unacceptable behaviour by Partner, including breach of the Acceptable Use Policy, as determined by Gift Up! in its sole discretion, may result in one or more of the following actions being taken by Gift Up!: (a) termination of Partner’s affiliation with Merchants within the Partner Account; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Account entirely without notice to, or recourse for, Partner.
Gift Up! reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Gift Up! will provide reasonable notice by posting a notice on the Partner Dashboard.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party will return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Gift Up! Creative and all Confidential Information (as defined below)); (b) Partner will immediately cease displaying any Gift Up! Creative or any Gift Up! Trademarks on any Website or otherwise; and (c) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, Gift Up! API, or to receive any payments of Fees under this Agreement, unless otherwise determined by Gift Up! in its sole discretion.
This Section 4.2 and the following Sections will survive any termination or expiration of this Agreement:
1. PART A: Section 1 (Definitions), Section 5.4 (Proprietary Rights of Gift Up!), Section 6 (Confidentiality), Section 7 (Disclaimer of Warranty), Section 8 (Limitation of Liability and Indemnification), and Section 9 (General Provisions)
2. PART B: Section 6 (Relationship between VAP and Merchant);
3. PART C.2: Section 4 (Reporting and Audit); and
4. PART D: Section 3.3 (Relationship), Section 3.5 (Taxes), Section 3.6 (Audits).

In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.

5. Intellectual Property Rights

5.1. Gift Up! Creative

All Gift Up! Creative will be solely created and provided by Gift Up! unless otherwise agreed to by Gift Up! in writing in advance. Gift Up! will provide Partner with copies of or access to Gift Up! Creative. The Gift Up! Creative may also be accessible from the Gift Up! partner program page (“Gift Up! Trademark Usage Guidelines”). By using the Gift Up! Creative, you indicate your acceptance of our Gift Up! Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license or permission to use the Gift Up! Creative. The Gift Up! Creative is provided “as is” and without warranty of any kind.
Partner may display Gift Up! Creative on the Websites solely for the purpose of marketing and promoting the Service during the term of this Agreement, or until such time as Gift Up! may, upon reasonable prior notice, instruct Partner to cease displaying the Gift Up! Creative. Partner may not alter, amend, adapt or translate the Gift Up! Creative without Gift Up!'s prior written consent. Nothing contained in any Gift Up! Creative will in any way be deemed a representation or warranty of Gift Up! The Gift Up! Creative will at all times be the sole and exclusive property of Gift Up! and no rights of ownership will at any time vest with Partner even in such instances where Partner has been authorized by Gift Up! to make changes or modifications to the Gift Up! Creative.

5.2. Gift Up! Trademarks

During the term of this Agreement, Gift Up! hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Gift Up! Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Gift Up!'s Trademarks only as permitted under this Agreement; (b) it will use the Gift Up! Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Gift Up! in writing from time to time, including but not limited to the Gift Up! Trademark Usage Guidelines; (c) the Gift Up! Trademarks are and will remain the sole property of Gift Up!; (d) nothing in this Agreement will confer in Partner any right of ownership in the Gift Up! Trademarks and all use thereof by Partner will inure to the benefit of Gift Up!; (e) Partner will not, now or in the future, apply for or contest the validity of any Gift Up! Trademarks; and (f) Partner will not, now or in the future, apply for or use any term or mark confusingly similar to any Gift Up! Trademarks.

5.3. Restrictions on Partner’s Use of the Gift Up! Trademarks

Notwithstanding Section 5.2, Partners will not:

use the Gift Up! Trademarks or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services, unless granted express written permission by Gift Up! in advance of each use; or
purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks, email addresses or domain names that use the Gift Up! Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Gift Up! Trademarks.

5.4. Proprietary Rights of Gift Up!

As between Partner and Gift Up!, the Gift Up! Creative, Gift Up! Trademarks, all demographic and other information relating to Merchants including Referred Merchants, prospective Partners and Partners, the Services, the Gift Up! API, Merchant Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Gift Up! or otherwise related to the Service, Gift Up! Partner Program, Gift Up!, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Gift Up! Property”) will be and remain the sole and exclusive property of Gift Up!. To the extent, if any, that ownership of any Gift Up! Property does not automatically vest in Gift Up! by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to Gift Up!, upon the creation thereof, all rights, title and interest Partner may have in and to such Gift Up! Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

6. Confidentiality

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between Gift Up! and Partner, Merchant Data and Customer Data is the Confidential Information of Gift Up!.
Each Party agrees to use the other Party’s/ies’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 6. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

7. Disclaimer of warranty

The Gift Up! Partner Program, the Service, the Gift Up! Trademarks, the Gift Up! Creative, Ads (including delivery and related reporting) and the Gift Up! API are provided “as-is”. Gift Up! makes no warranties under this Agreement, and Gift Up! expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, Gift Up! further disclaims all representations and warranties, express or implied, that the Service, the Gift Up! API, the Gift Up! Trademarks, the Gift Up! Creative, or the Gift Up! API satisfy all of Partner’s or Merchant’s requirements and or will be uninterrupted, error-free or free from harmful components.

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

Gift Up! will have no liability with respect to the Gift Up! Partner Program, the Service, the Gift Up! API, the Gift Up! Trademarks, the Gift Up! Creative or Gift Up!'s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Gift Up! API, the Gift Up! Trademarks, the Gift Up! Creative, or Partner’s participation or inability to participate in the Gift Up! Partner Program, even if Gift Up! has been advised of the possibility of such damages. In any event, Gift Up!'s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Gift Up! during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and a Partner is strictly between the Merchant and the Partner, and neither Gift Up! are obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances will Gift Up! be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Merchant. These limitations will apply even if Gift Up! has been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Gift Up! and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Gift Up! granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s use of the Gift Up! API; (e) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant Agreement; (f) any third party claim that Partner’s products or services, including without limitation any Application, Theme, or Channel Platform infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Partner’s products or services, including without limitation, any Application or Theme or Channel Platform; and (h) Partner’s relationship with any Merchant.

8.3. Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 3.2.4, 5 or 6 above, in addition to all other rights and remedies available to Gift Up! under this Agreement and under applicable law, Gift Up! will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s access to the Partner Program, (c) receive a prompt refund of all amounts paid to Partner under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by Gift Up! in connection with such violation, in accordance with the provisions of this Section 8.

9. General provisions

9.1. Force Majeure

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Except with respect to the collection and transfer of payments, credits or refunds between Merchants and Partner, or as otherwise expressly stated in this Agreement, neither is Gift Up! an agent, representative or related entity of the Partner. Neither Gift Up! nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party, except where the Partner expressly authorizes Gift Up! to act on its behalf in this Agreement. For the avoidance of doubt, Partner expressly authorizes Gift Up! to act on its behalf for the purposes of collecting and remitting payment, credits or refunds between Merchant and Partner. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

10. Unauthorized and Prohibited Activities

A Partner will not:
1. promote or advertise Gift Up! on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code;
2. use its Affiliate Link directly in any pay-per-click advertising;
3. purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Gift Up! Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the Gift Up! Trademarks or the names or trademarks;
4. create or participate in any third party networks or sub-affiliate networks without the express written permission of Gift Up!;
5. use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
6. use direct linking to any page on any Gift Up! website, without prior written permission from Gift Up!; or
7. mask its referral sites or use deceptive redirecting links.
A Referred Merchant cannot be a store opened or owned by a Partner and for which that Partner seeks compensation pursuant to this Agreement. A Partner will be deemed to have introduced only those Referred Merchants that: (a) access Gift Up! from that Partner’s Affiliate Link assigned by Gift Up!; or (b) are added through a Development Store within the Partner’s Gift Up! Partner Dashboard.

11. Access to the Gift Up! Partners API

Without limiting the restrictions outlined elsewhere in this Agreement or in the Gift Up! API Terms, Developers will not:

Include code in any Application which performs any operations not related to the services provided by the Application, whether or not Developer has obtained Merchant consent to do so, and whether or not the Application obtains consent from the end-user to do so. For the avoidance of doubt, this prohibited activity includes embedding or incorporating code into any Application which utilizes the resources (including CPU resources) of another computer, including for the purposes of cryptocurrency mining;
Develop or distribute the Application in any way in furtherance of criminal, fraudulent, or other unlawful activity, or otherwise violate the Gift Up!'s Acceptable Use Policy
Develop the application to provision accounts unnecessarily or to attempt to extract and store personal information outside of the Gift Up! platform without prior written content by GiftUp!