Lemonade Stand Operating Agreement
Lemonade,
Inc.’s
Lemonade Stand Operating Agreement
Lemonade Stand Operating Agreement
Effective Date: August 28, 2007
This Lemonade Stand Operating Agreement (“Additional Terms”) is made part of and incorporated into Lemonade, Inc.’s Terms of Service (“TOS”) and contain terms and conditions that apply to Lemonade, Inc.’s “Lemonade Stand Program” which enables a person or entity (“Operator(s)”) to design, create, build, manage, publish, post and update a customizable widget (“Lemonade Stand”) onto a Web site to drive traffic to another Web site or Web site content throughout the Internet; whereby Operators may earn financial compensation (“Payouts”) for “Transactions” (actions by Visitors as defined by the Merchant) referred by such Operator via an action made by a “Visitor” through an Internet connection (“Link”) to a Web site or Destination Page operated by another person or entity (“Merchant”, “Advertiser” (including all Internet advertising companies) or “Sponsor”, starting with the term “Merchant”, collectively, “Merchant”) from a Merchant or business partner (“Partner”) authorized promotional method that is listed in our Offers database (“Offers Database”) and accessed, promoted or used by such Operator within such Operator’s Lemonade Stand(s).
As used in these Additional Terms, “we”, “us”, or “our” means Lemonade, Inc. or any of our affiliate companies, as the case may be, and “you” “your” or “Operator” means the person or entity agreeing to these Additional Terms. “Lemonade.com Site” means the site that has its primary home page identified by the URL www.lemonade.com, and “site” or “Web site” means a World Wide Web site or Destination Page. Save for our obligation to pay Payouts to you under Section 12, which may be performed solely by us, we may cause any of our obligations under these Additional Terms to be fulfilled by any of our affiliates, Third Party Providers or Partners, on our behalf.
In the event of any conflict between the provisions, terms or conditions of these Additional Terms and those of said TOS or our Privacy Policy, the provisions, terms or conditions of these Additional Terms shall govern and control, and the terms of said TOS and Privacy Policy shall be modified hereby. All capitalized terms not defined herein shall have the meanings ascribed to them in the TOS.
1. Acceptance:
In order to participate in the Lemonade Stand Program, you must first provide the required information and ‘clicking through’ the acceptance button of these Additional Terms made available to you on the Lemonade Web site. You may not participate in the Lemonade Stand Program if you do not accept these Additional Terms. You understand and agree that by actually participating in the Lemonade Stand Program through your using or accessing our Services, you accept the terms of these Additional Terms (including the referenced Privacy Policy which is incorporated herein and made a part of these Additional Terms by this reference) and are bound thereby and that we will treat your participating in the Lemonade Stand Program and/or access to and/or use of the Services as acceptance of the terms of these Additional Terms from that time forward. You may not participate in the Lemonade Stand Program or use the Services and may not accept the terms of these Additional Terms if (a) you are not of legal age to form a binding contract with us, or (b) you are a person barred from participating in the Lemonade Stand Program or from receiving, accessing or using the Services under the laws of the United States or other countries including the country in which you are resident or from which you may participate in the Lemonade Stand Program or use the Services.
2. Unsuitable Sites
The following is an exemplary list of sites that are unsuitable places to post your Lemonade Stand. Unsuitable sites include, but are not limited to, those that:
• promote sexually explicit materials
• promote violence
• promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
• promote illegal activities
• include “lemonade,” “Merchant’s name” or any other trademark of such parties or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., “.com”, “.net,” “.uk” etc.) -- for example, a URL such as “lemonade.mydomain.com,” “lemonade.com” or “lemonadestand.net” would be unsuitable
• are or promote spam or link farms, or
• otherwise violate the terms of these Additional Terms or those of any Merchants or Partners or intellectual property rights of another.
By participating in our Lemonade Stand Program you agree that you will not engage in any such activities.
3. Grant of License from Lemonade to You
Upon your acceptance of these Additional Terms and your participation in the Lemonade Stand Program, we grant you a revocable, non-exclusive, royalty-free limited license for the duration of and subject to the terms of these Additional Terms, to create, design, maintain and update your Lemonade Stand(s) and to publish and/or post such Lemonade Stand(s) within the Lemonade Marketplace and throughout the Internet in accordance with the terms of these Additional Terms. Such license shall allow you to name each of your Lemonade Stands, upload certain content onto your Lemonade Stand(s) and to select and post Products (and related Link(s) using a variety of formats that we make available to you, such as text link format, graphical link format, customizable “widget” format, or “product preview” link format) therein, solely for purposes of facilitating referrals, in accordance with these Additional Terms and any applicable Merchant’s Program and/or Partner’s terms, from your Lemonade Stand(s) to earn Payouts. A “Product” is any Merchant’s product, offer, advertisement or service made available on or through the Services, including those listed on or within our Offers Database that are made available to Operators for use in their Lemonade Stand(s).
You may display (and remove) Links from your Lemonade Stand(s) in accordance with our then-current guidelines and these Additional Terms. Notwithstanding anything else, we reserve the right to update, add, dismantle, deactivate or remove any Links into/from/within any Lemonade Stand(s) in our sole and absolute discretion, at any time with or without notice and without liability, except for our payment obligation to you for Payouts previously earned by you in accordance with the terms of these Additional Terms. The Lemonade Parties reserve all of our respective rights and licenses not explicitly granted to you.
4. Grant of License to Link to Merchants.
Upon your selection and posting of a Merchant’s Link into your Lemonade Stand, such Merchant grants you a license to display and Link to the Merchant’s Web site or Destination Page (defined below) in accordance with such Merchant’s Program terms for the limited purposes of promoting the Merchant's program or Product, subject to such Merchant’s Program’s terms and conditions and these Additional Terms (“collectively, “Merchant’s Program”). Your use of the Link signifies your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files, code or content contained in such Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between Lemonade and you, Lemonade or its Merchants or Partners own all rights in and to all information regarding the Visitors that you refer to Merchants through Lemonade Stand(s), Lemonade and/or its Partners.
5. Your License to Lemonade.
You authorize Lemonade to utilize your trademarks, service marks, trade names, Information and/or Content that you provide to Lemonade through your participation in the Lemonade Stand Program and/or your access to or use of the Services to post and display your Lemonade Stand onto the Internet, promote your Lemonade Stand(s) and your participation in the Lemonade Stand Program and use of the Services.
6. Trademark; Goodwill.
All proprietary rights of Merchants, Partners, you, and Lemonade, and all goodwill arising as a result of such rights, inure to the benefit of such owner. You explicitly agree not to adopt or use in any manner any trademarks, service marks, trade names, designs, slogans and/or URLs that are the same or likely to be confusingly similar to, or are combined with, those of Lemonade or any Partner or Merchant.
7. Links.
To permit accurate tracking, reporting, and referral fee accrual, you must not tamper with or in any way modify any Links. The Links that you place/list in your Lemonade Stand(s) are specifically tagged to identify and record all activity originating from your Lemonade Stand(s). If Links are not dynamically updated through the Service(s), upon notification you are obligated to update a Merchant’s Links in order to earn Payouts. You will earn Payouts only with respect to activity occurring directly through the Links placed/listed on your Lemonade Stand(s); we will not be liable to you with respect to any act or omission by you which may result in any reduction of amounts that would otherwise be paid to you pursuant to these Additional Terms.
8. Operator Acknowledgements.
You acknowledge, understand and agree that:
(i) By placing any Links onto or within your Lemonade Stand(s), or through other monitoring, tracking or collection technology that we may place into or embed therein, allows us or our Merchants or Partners to receive information from your Lemonade Stand(s) or about Visitors to your Lemonade Stand(s), including, but not limited to, Lemonade Stand location(s) and all Visitor, Transaction and/or tracking code data. Your participation in the Lemonade Stand Program and/or use of the Services constitutes your specific and unconditional consent to and authorization for our or our Merchants’ and Partners’ access to, receipt, storage, use, and disclosure of any and all such information without limitation. Notwithstanding, Lemonade may provide, without limitation, any and all such information to any third party in Lemonade’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Lemonade reserves the right to be able to utilize tracking code data provided to it, which may include: information about your performance statistics, to analyze Lemonade Stand Program and Service trends, monitor Service efficiencies, maintain the integrity of the tracking code, promote Service capabilities and efficiencies, and promote you and your Lemonade Stand(s) performance to Merchants, Partners or third parties.
(ii) Lemonade may, but is not obligated to, provide your email address(es) and basic Operator account detail and interests (including but not limited to your address, phone, Lemonade Stand name, the date the Lemonade Stand first entered into operation, profile/interest data provided to us by our Partners and Visitor demographics) to Merchants or Partners to provide, promote and enhance our relationships with such parties and the Services.
(iii) Except for the license explicitly granted to you, you do not obtain any license or rights in any intellectual property, including, without limitation, any intellectual property with respect to Lemonade’s, its Partners’ or Merchant’s trademarks, service marks, trade names, URLs, copyrighted material, the Links, link formats, technical specifications, proprietary properties, patents, and patent applications, and agree not to challenge our or such parties’ proprietary rights.
(iv) We and our Merchants and Partners may crawl or otherwise monitor your Lemonade Stand(s) for the purpose of ensuring compliance and the quality and reliability of Links on your Lemonade Stand (for example, to detect links that are broken or non-functional, etc.). Therefore, you agree that we and our Merchants and Partners may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring and that we and our Merchants and Partners may use technical means to overcome any methods used to block or interfere with such crawling or monitoring.
(v) We reserve the sole and absolute right to: (i) decide what category(ies) to classify Your Lemonade Stand within; (ii) select Offers(s) for your Lemonade Stand(s) if you do not select an Offer(s) that we have provided to you; (iii) change, update or add content or Links relevant to us, Merchant Program(s) or the Lemonade Stand Program to your Lemonade Stand(s) for any reason and without notice; and (iv) deactivate your account(s) or any Lemonade Stand(s) for any reason, with or without notice, without liability to you, except for our payment obligation to you for Payouts previously earned by you in accordance with the terms of these Additional Terms.
(vi) We or our Merchants and Partners may from time to time send you email updates, promotions, news letter and alerts (“Email Updates”). By participating in the Lemonade Stand Program and/or accessing or using the Services, you consent to our or our Merchants or Partners sending you these Email Updates.
(vii) You shall comply with these Additional Terms, applicable Merchant’s or Partner’s terms and all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, rules, regulations, etc. are now in effect or later come into effect during the time you are a Lemonade Stand Program participant.
(viii) You shall: (a) not, and shall not authorize or encourage any third party to, sell, redistribute, sublicense or transfer any content or Links obtained from you by us or our Merchants or Partners; (b) not, and shall not authorize or encourage any third party to, use any content or Links obtained from you by us or our Merchants or Partners in a manner intended to send sales to any Web site other than the Lemonade or Merchant or Partner intended Web site or Destination Page; and (c) promptly delete any content or Links that are no longer made available by us or our Merchants or Partners or that we notify you is no longer available for your use.
(ix) You shall not, and shall not authorize or encourage any third party to (i) edit, modify, filter or change the order of the information contained in any Product description, offer or advertisement, or remove, obscure or minimize any Product description, offer or advertisement in any way; (ii) redirect an end user away from any Web page accessed by an end user after clicking on any part of an advertisement, offer or Link (“Destination Page”), or (iii) provide a version of the Destination Page different from the page an end user would access by going directly to the Destination Page or intersperse any content or any advertisements on any error page, registration or “thank you” page (e.g. a page that thanks a user after he/she has registered with the applicable website).
(x) You are solely responsible (and assume all liability and risk) for determining whether or not content that may be submitted or published by us or any Merchant or Partner is appropriate or acceptable to you.
(xi) You shall provide us with accurate information about you, and to maintain up-to-date account information (such as contact and transactional information.) For U.S. taxpayers, this information may include without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information may include without limitation either a signed certification that the taxpayer does not have U.S. activities or a fully completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued Payout. You shall promptly pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Lemonade Stand Program and use of the Services.
(x) We or any of our Merchants or Partners may serve content and/or advertisements on your Lemonade Stand(s), wherever located, and in any manner, mode and frequency that we determine. Such content or advertisements may collect information directly from Visitors and may place or recognize cookies, web beacons or gifs on Visitors’ browsers.
(xi) All Merchants and Partners are responsible for their content posted and Lemonade does not assume any responsibility for any claims made by the individual Merchants or Partners. Lemonade’s allowance of a third party advertisement is not an endorsement of the content or the Merchant’s product, offer or service.
(xii) Any dealings with Merchants, including payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings are solely between Visitors and the Merchant. We or our Merchants or Partners may change our or their policies and operating procedures at any time with or without notice. Lemonade is also not responsible for any claims you or Visitors may have against individual Merchants or Partners.
(xiii) The Merchant will process Product orders placed by Visitors who follow Links from your Lemonade Stand to such Merchant’s site. You understand, acknowledge and agree that such Merchant reserves the right to reject orders that do not comply with any requirements that we or they periodically may establish; (ii) we will not be responsible for any aspects of order processing and fulfillment; (iv) such Merchant will be responsible for all aspects of order processing and fulfillment, which shall include, but not be limited to: preparation of order forms, process payments, cancellations, and returns, and handle customer service.
(xiv) We will receive reports from our Partners that will track click through, impressions and/or sales made to Visitors who purchase Products or respond to advertisements by using Links from your Lemonade Stand to our and our Merchants and Partners’ sites or Destination Pages and we will make available to you reports summarizing this click through, impression and sales activity. The providing of, placement, form, content, and frequency of the reports may vary from time to time in our sole discretion.
(xv) You shall be responsible for all usage and activity on your account(s) and for loss, theft or unauthorized disclosure of your password. You shall provide us with prompt written notification of any known or suspected unauthorized use of your account(s) or breach of the security of your account(s).
(xvi) Each and every Lemonade Stand shall, at our discretion, display a Lemonade, Inc. trademark, logo, design, image and/or phrase (and related Links) (collectively “Trademark”).
(xvii) We may add, delete or modify the Trademark at any time and for any reason.
(xviii) You may not in any manner misrepresent or embellish the relationship between us and you or between you and any Merchant or Partner, or express or imply any relationship or affiliation between us and you or you and any Merchant or Partner or any other person or entity except as expressly permitted.
(xix) A Merchant or Partner may apply, or Lemonade may apply, a debit to your account(s) in an amount equal to a Payout previously credited to your account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Merchant; or (v) Operator failure to comply with any applicable terms (collectively “Charge-back”). Charge-backs may be applied to your account at any time, including previous payment cycles.
(xx) If your account(s) has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at Lemonade’s then-current rate shall be applied to such account each calendar month that such account remains an open yet Dormant Account or until such account balance reaches a zero balance, at which time the account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
(xxi) You may have a negative balance if your account(s) is/are debited amounts equivalent to previous Payouts for Charge-backs and you do not have an adequate account balance to cover the Charge-back amounts. When you have a negative balance, you must immediately remit payment to Lemonade in an amount sufficient to bring such account(s) to a zero balance, or such account may be, at our sole discretion, subject to 1.0 % interest per month, compounded monthly or the highest rate permitted by applicable law, whichever is lower.
(xxii) the Links or Services may contain, or direct Visitors or you to sites containing, information that some people may find offensive or inappropriate. The Lemonade Parties make no representations concerning any content contained in or accessed through the Links or Services, and the Lemonade Parties shall not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Link or Services.
(xxiii) You are responsible for all of your activity in connection with the Services.
(xxiv) Lemonade makes no guarantee regarding the level of impressions of or clicks on any offer, Link or advertisement, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to you in connection with your participation in the Lemonade Stand Program, Merchant Program and/or the Services.
(xxv) You shall not use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including materials that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. You shall not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any other automated processes.
(xxvi) We may have access to or be provided with certain of your non-personally identifiable profile information and data (“Operator Profile Data”) that is listed, displayed or stored on any Partner’s or Merchant’s site(s) and/or made available to us by a third party on such Merchant’s or Partner’s behalf. We may use such Operator Profile Data to perform targeted advertisements within your Lemonade Stand(s) and to provide, promote and enhance our relationships with such parties and the Services.
(xxvii) Operators may only register under one account.
9. Non-Bona Fide Transactions.
You must promote Lemonade and Merchants such that you do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to such Merchant from the Link. You shall not, and shall not authorize or encourage any third party to cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where you or your agent are the Visitor. Multiple leads from the same individual, entity or IP address may be considered non-bona fide Transactions, which shall be determined in our or the applicable Merchant’s or Partner’s sole discretion. You shall not earn Payouts for non-bona fide Transactions.
10. Promotions.
You represent and warrant that:
(A) all Promotional means used by you will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that you will not mislead others (B) you agree to: (i) use ethical and legal business practices, (ii) comply with the Lemonade Stand Program, Merchant’s Program and Partner’s terms and these Additional Terms and TOS, (iii) not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications; (iv) not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software) and (v) not engage in diluting, tarnishing or blurring our or our Merchant’s or Partner’s trademarks, trade names, and/or service marks.
We reserve the right to review all of your posting, publishing, marketing, selling and promotional (“Promotional”) activities and may deem such activities inappropriate and a material breach of these Additional Terms in our sole and absolute discretion. We may review an Operator’s conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by you through your Promotional methods, or that is perpetrated through use of the Lemonade Stand Program or Service(s); a finding of which shall be grounds for immediate termination of these Additional Terms or deactivation of your Lemonade Stand(s) or any or your accounts.
11. Information Rights.
Lemonade may retain and use for its own purposes all information you provide. Notwithstanding anything else, you agree that Lemonade may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Lemonade Stand Program and/or your use of the Services, including to third parties that reside in jurisdictions with less restrictive data laws than your own jurisdiction. Lemonade disclaims all responsibility, and will not be liable to you, however, for any disclosure of that information by any such third party. In addition, you grant Lemonade, its Merchants and Partners the right to access, index, and cache your Lemonade Stands and any Web site your Lemonade Stand may be placed upon, or any portion thereof, including by automated means including Web spiders or crawlers.
12. Compensation.
Subject to other provisions in these Additional Terms, Lemonade shall credit your account(s) with a Payout for each qualifying Transaction in accordance with our and the Merchant’s or Partner’s Payout rate and our and the Merchant’s Program or Partner’s terms for the relevant Transaction. Subject to the payment terms set forth herein, Lemonade will issue to you any positive balance in your account for Transactions reported for the previous period(s), together with any Cleared Funds, provided your account balance exceeds the required “Minimum Account Balance” (set by Lemonade at any time in its sole discretion) and you have a valid functioning Pay Pal account. Lemonade shall have no obligation to make payment of any Payouts for which Lemonade has not received payment from the relevant Merchant or Partner of all monies due to Lemonade (including for all Payouts owed by such Merchant or Partner to all Operators) or if you do not have a valid working Pay Pal account and as further set forth herein. If Lemonade elects, in its own discretion, not to make payment to you for amounts not received from a Merchant or Partner, those amounts shall not be included in the Minimum Balance Amount. Payouts of certain funds may be withheld by Lemonade, in its sole discretion, to cover any Charge-backs or potential Charge-backs; provided that, Lemonade shall issue to you any such withheld sum(s) that remain in your account after such Charge-backs are satisfied and/or are no longer needed to be withheld to offset Charge-backs (such remaining sum(s), “Cleared Funds”), in accordance with the terms set forth herein.
If you dispute any payment made in connection with the Services, you must notify Lemonade in writing within thirty (30) days of any such payment. Failure to so notify Lemonade shall result in the waiver by you of any claims related to such disputed payment. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by Lemonade, shall be final and binding on you. No other measurements or statistics of any kind shall be accepted by Lemonade or have any effect under these Additional Terms.
Notwithstanding, your recourse for any earned Payouts not paid to you shall be to make a claim against the relevant Merchant(s) or Partners, and Lemonade disclaims any and all liability for such payment.
Lemonade reserves the right to change its payment terms at any time, upon prior notice to you, which may be sent by email or posted in your profile or on the Services.
13. Support.
Support for Operators is available on-line through the “Contact Us” area in the Lemonade Account Manager, which allows you to categorize and describe your issue.
14. Operator’s Indemnification Obligations.
Operator shall promptly defend, indemnify and hold the Lemonade Parties (as such term is defined in the TOS) harmless from and against all claims, suits, demands, damages, liabilities, losses, penalties, interest, investigations, settlements and judgments, costs and expenses (including attorneys’ fees) as incurred, claimed or sustained, directly or indirectly as a result of (a) Operator’s breach of or non-compliance with these Additional Terms, (b) Operator’s violation of any law, rule or regulation or an alleged violation of law, rule or regulation by the Lemonade Parties, that is a direct or indirect result of Operator’s use of the Service(s), (c) Operator’s access to and/or use of the Service(s), (d) Operator’s participation in the Lemonade Stand Program, (e) any content, goods or services offered, sold or otherwise made available by Operator to any person, (f) Operator’s acts or omissions in using, displaying or distributing any links obtained from the Service(s) or elsewhere, (g) any claim that Lemonade is obligated to pay tax obligations in connection with payment made to Operator pursuant to these Additional Terms, and (h) any violation or alleged violation by Operator of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(h) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this Section 14, the Lemonade Parties shall be entitled, at its/their own expense, and upon reasonable notice to Operator, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Operator’s obligations to indemnify or hold the Lemonade Parties harmless. Operator shall not settle any Claim without the Lemonade Parties prior written consent. Operator also shall indemnify for any reasonable attorneys’ fees or other costs as incurred by the Lemonade Parties in investigating or enforcing this Section 14. This section shall survive any termination of these Additional Terms.
15. Term, Termination and Deactivation.
(a) Term. These Additional Terms shall commence upon your indication that you have accepted these Additional Terms by providing the required information and ‘clicking through’ the acceptance button on the Lemonade Web site and shall continue until terminated in accordance with the terms of these Additional Terms.
(b) Termination. These Additional Terms may be terminated by either party upon 15 days notice. These Additional Terms may be terminated immediately upon notice for your breach or alleged breach of these Additional Terms or upon the request of any Merchant or Partner. Your account(s) and/or Lemonade Stand(s) may be deactivated during investigation of any breach or alleged breach of these Additional Terms or upon request from any Merchant or Partner. If these Additional Terms are terminated based upon your breach or alleged breach, you shall not be eligible to enter into a new click-through Additional Terms with Lemonade, and any attempt to do so shall be null and void. Upon termination of these Additional Terms, or in case of deactivation of your account(s) and/or Lemonade Stand(s), you shall no longer accrue Payouts in your account(s), including but not limited to subsequent sales and/or leads for click-throughs that occurred prior to termination. You are eligible to earn Payouts only on Transactions that occur during the term, and in accordance with the terms herein. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
(c) Termination of Programs and Offers. Merchant Programs and offers may be discontinued at any time and for any reason with or without notice.
(d) Post-termination. Upon termination of these Additional Terms, any outstanding payments, not subject to good faith dispute, shall be paid by Lemonade to you within a reasonable time of the termination date to ensure that the correct amount is paid, and any outstanding debit balance shall be paid by you to Lemonade within 30 days of termination of these Additional Terms. All payments are subject to recovery for Charge-backs. Upon termination of these Additional Terms, any permissions granted under these Additional Terms will terminate.
16. Notice.
Except as provided elsewhere herein, both parties must send all notices relating to these Additional Terms to:
(i) for Lemonade, send to:
P.O. Box 445
South Norwalk, CT 06856
Attn: Legal Department
via registered mail, return receipt requested or via an internationally recognized express mail carrier to (effective upon actual and acknowledged receipt),
with a copy to
Collen IP
80 South Highland Avenue
Ossining, New York 10562,
Attn: Matthew Wagner, Esq.
and, (ii) for you,
at the email or physical address listed on your account (effective upon sending the email) or five (5) days after mailing) or upon posting of such notice onto your Operator profile.
17. Modification.
We may modify any of the terms and conditions contained in these Additional Terms, at any time and in our sole discretion, by posting a change notice or a new agreement on our Web site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THESE ADDITIONAL TERMS. YOUR CONTINUED PARTICIPATION IN THE LEMONADE STAND PROGRAM AND/OR ACCESS TO OR USE OF THE SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
18. Relationship of Parties.
You and we are independent contractors, and nothing in these Additional Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 Lemonade Stand, through Promotions or otherwise, that reasonably would contradict anything in this Section.
19. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE, IN NO EVENT SHALL THE LEMONADE PARTIES BE LIABLE TO YOU FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNATIVE DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIMS ARISING IN CONNECTION WITH YOUR PARTICPATION IN THE LEMONADE STAND PROGRAM OR ACCESS TO OR USE OF THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOUR REMEDIES UNDER THESE ADDITIONAL TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE ADDITIONAL TERMS.
WITHOUT LIMITING ANYTHING ELSE, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THESE ADDITIONAL TERMS AND THE LEMONADE STAND PROGRAM SHALL NOT EXCEED THE TOTAL PAYOUTS OWED BY US TO YOU UNDER THESE ADDITIONAL TERMS.
NOTHING IN THESE ADDITIONAL TERMS, SHALL EXCLUDE OR LIMIT LEMONADE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE ADDITIONAL TERMS.
20. Disclaimers.
YOUR PARTICIPATION IN THE LEMONADE STAND PROGRAM AND YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE LEMONADE PARTIES OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE ADDITIONAL TERMS.
THE LEMONADE PARTIES, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. WITHOUTLIMITING ANY OF THE FOREGOING, THE LEMONADE PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE LEMONADE STAND PROGRAM, THE SERVICES OR ANY PRODUCTS, SERVICES OR LINKS MADE AVAILABLE ON OR SOLD THROUGH THE LEMONADE STAND PROGRAM AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO LEMONADE STANDS OR ANY OTHER SITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. THE LEMONADE PARTIES DO NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY MERCHANT PROGRAM, OFFER, ADVERTISEMENT OR CAMPAIGN, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711): THE LEMONADE PARTIES MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR THROUGH THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE ADDITIONAL TERMS.
21. Independent Investigation.
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE ADDITIONAL TERMS AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THESE ADDITIONAL TERMS OR OPERATE OR ENABLE OTHERS TO OPERATE LEMONADE STAND(S) THAT ARE SIMILAR TO OR COMPETE WITH YOUR LEMONADE STAND(S). YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE LEMONADE STAND PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPLICITLY SET FORTH IN THESE ADDITIONAL TERMS.
22. Choice of Law and Location for Resolving Disputes.
Notwithstanding anything else, these Additional Terms and your relationship with Lemonade hereunder, shall be governed by the laws of the State of Connecticut without regard to its conflict of laws provisions. You and Lemonade agree to submit to the exclusive jurisdiction of the courts located within the State of Connecticut to resolve any legal matter arising from these Additional Terms. Notwithstanding this, you agree that the Lemonade Parties shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You understand, acknowledge and agree that a printed version of these Additional Terms will be admissible in judicial and administrative proceedings based upon or relating to these Additional Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. Lemonade controls and operates its Web site from the USA and access or use where illegal is prohibited.
24. Miscellaneous.
You may not assign these Additional Terms, by operation of law or otherwise, without our prior written consent. Subject to that restriction, these Additional Terms will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of these Additional Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these Additional Terms. All remedies set forth in these Additional Terms are cumulative and in addition to and not in lieu of any other remedy of the Lemonade Parties at law or in equity. If any part of these Additional Terms is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of these Additional Terms will remain fully in force. Lemonade shall not bear responsibility or liability for any losses arising out of any delay in or interruptions of its performance of its obligations under these Additional Terms due to any act of God, act of governmental authority, act of the public enemy or due to war, terrorism, illness, riot, fire, flood, civil commotion, insurrection, labor difficulty (including, without limitation, any strike or other work stoppage or slowdown), severe or adverse weather conditions or other cause beyond the reasonable control of Lemonade. The terms and conditions providing for any activity following the termination or expiration of these Additional Terms, any warranties, disclaimers, remedies and any indemnification obligations, and any other provision which, by its terms is intended to survive the termination of these Additional Terms, shall survive the termination or expiration of these Additional Terms.
This Lemonade Stand Operating Agreement (“Additional Terms”) is made part of and incorporated into Lemonade, Inc.’s Terms of Service (“TOS”) and contain terms and conditions that apply to Lemonade, Inc.’s “Lemonade Stand Program” which enables a person or entity (“Operator(s)”) to design, create, build, manage, publish, post and update a customizable widget (“Lemonade Stand”) onto a Web site to drive traffic to another Web site or Web site content throughout the Internet; whereby Operators may earn financial compensation (“Payouts”) for “Transactions” (actions by Visitors as defined by the Merchant) referred by such Operator via an action made by a “Visitor” through an Internet connection (“Link”) to a Web site or Destination Page operated by another person or entity (“Merchant”, “Advertiser” (including all Internet advertising companies) or “Sponsor”, starting with the term “Merchant”, collectively, “Merchant”) from a Merchant or business partner (“Partner”) authorized promotional method that is listed in our Offers database (“Offers Database”) and accessed, promoted or used by such Operator within such Operator’s Lemonade Stand(s).
As used in these Additional Terms, “we”, “us”, or “our” means Lemonade, Inc. or any of our affiliate companies, as the case may be, and “you” “your” or “Operator” means the person or entity agreeing to these Additional Terms. “Lemonade.com Site” means the site that has its primary home page identified by the URL www.lemonade.com, and “site” or “Web site” means a World Wide Web site or Destination Page. Save for our obligation to pay Payouts to you under Section 12, which may be performed solely by us, we may cause any of our obligations under these Additional Terms to be fulfilled by any of our affiliates, Third Party Providers or Partners, on our behalf.
In the event of any conflict between the provisions, terms or conditions of these Additional Terms and those of said TOS or our Privacy Policy, the provisions, terms or conditions of these Additional Terms shall govern and control, and the terms of said TOS and Privacy Policy shall be modified hereby. All capitalized terms not defined herein shall have the meanings ascribed to them in the TOS.
1. Acceptance:
In order to participate in the Lemonade Stand Program, you must first provide the required information and ‘clicking through’ the acceptance button of these Additional Terms made available to you on the Lemonade Web site. You may not participate in the Lemonade Stand Program if you do not accept these Additional Terms. You understand and agree that by actually participating in the Lemonade Stand Program through your using or accessing our Services, you accept the terms of these Additional Terms (including the referenced Privacy Policy which is incorporated herein and made a part of these Additional Terms by this reference) and are bound thereby and that we will treat your participating in the Lemonade Stand Program and/or access to and/or use of the Services as acceptance of the terms of these Additional Terms from that time forward. You may not participate in the Lemonade Stand Program or use the Services and may not accept the terms of these Additional Terms if (a) you are not of legal age to form a binding contract with us, or (b) you are a person barred from participating in the Lemonade Stand Program or from receiving, accessing or using the Services under the laws of the United States or other countries including the country in which you are resident or from which you may participate in the Lemonade Stand Program or use the Services.
2. Unsuitable Sites
The following is an exemplary list of sites that are unsuitable places to post your Lemonade Stand. Unsuitable sites include, but are not limited to, those that:
• promote sexually explicit materials
• promote violence
• promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
• promote illegal activities
• include “lemonade,” “Merchant’s name” or any other trademark of such parties or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., “.com”, “.net,” “.uk” etc.) -- for example, a URL such as “lemonade.mydomain.com,” “lemonade.com” or “lemonadestand.net” would be unsuitable
• are or promote spam or link farms, or
• otherwise violate the terms of these Additional Terms or those of any Merchants or Partners or intellectual property rights of another.
By participating in our Lemonade Stand Program you agree that you will not engage in any such activities.
3. Grant of License from Lemonade to You
Upon your acceptance of these Additional Terms and your participation in the Lemonade Stand Program, we grant you a revocable, non-exclusive, royalty-free limited license for the duration of and subject to the terms of these Additional Terms, to create, design, maintain and update your Lemonade Stand(s) and to publish and/or post such Lemonade Stand(s) within the Lemonade Marketplace and throughout the Internet in accordance with the terms of these Additional Terms. Such license shall allow you to name each of your Lemonade Stands, upload certain content onto your Lemonade Stand(s) and to select and post Products (and related Link(s) using a variety of formats that we make available to you, such as text link format, graphical link format, customizable “widget” format, or “product preview” link format) therein, solely for purposes of facilitating referrals, in accordance with these Additional Terms and any applicable Merchant’s Program and/or Partner’s terms, from your Lemonade Stand(s) to earn Payouts. A “Product” is any Merchant’s product, offer, advertisement or service made available on or through the Services, including those listed on or within our Offers Database that are made available to Operators for use in their Lemonade Stand(s).
You may display (and remove) Links from your Lemonade Stand(s) in accordance with our then-current guidelines and these Additional Terms. Notwithstanding anything else, we reserve the right to update, add, dismantle, deactivate or remove any Links into/from/within any Lemonade Stand(s) in our sole and absolute discretion, at any time with or without notice and without liability, except for our payment obligation to you for Payouts previously earned by you in accordance with the terms of these Additional Terms. The Lemonade Parties reserve all of our respective rights and licenses not explicitly granted to you.
4. Grant of License to Link to Merchants.
Upon your selection and posting of a Merchant’s Link into your Lemonade Stand, such Merchant grants you a license to display and Link to the Merchant’s Web site or Destination Page (defined below) in accordance with such Merchant’s Program terms for the limited purposes of promoting the Merchant's program or Product, subject to such Merchant’s Program’s terms and conditions and these Additional Terms (“collectively, “Merchant’s Program”). Your use of the Link signifies your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files, code or content contained in such Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between Lemonade and you, Lemonade or its Merchants or Partners own all rights in and to all information regarding the Visitors that you refer to Merchants through Lemonade Stand(s), Lemonade and/or its Partners.
5. Your License to Lemonade.
You authorize Lemonade to utilize your trademarks, service marks, trade names, Information and/or Content that you provide to Lemonade through your participation in the Lemonade Stand Program and/or your access to or use of the Services to post and display your Lemonade Stand onto the Internet, promote your Lemonade Stand(s) and your participation in the Lemonade Stand Program and use of the Services.
6. Trademark; Goodwill.
All proprietary rights of Merchants, Partners, you, and Lemonade, and all goodwill arising as a result of such rights, inure to the benefit of such owner. You explicitly agree not to adopt or use in any manner any trademarks, service marks, trade names, designs, slogans and/or URLs that are the same or likely to be confusingly similar to, or are combined with, those of Lemonade or any Partner or Merchant.
7. Links.
To permit accurate tracking, reporting, and referral fee accrual, you must not tamper with or in any way modify any Links. The Links that you place/list in your Lemonade Stand(s) are specifically tagged to identify and record all activity originating from your Lemonade Stand(s). If Links are not dynamically updated through the Service(s), upon notification you are obligated to update a Merchant’s Links in order to earn Payouts. You will earn Payouts only with respect to activity occurring directly through the Links placed/listed on your Lemonade Stand(s); we will not be liable to you with respect to any act or omission by you which may result in any reduction of amounts that would otherwise be paid to you pursuant to these Additional Terms.
8. Operator Acknowledgements.
You acknowledge, understand and agree that:
(i) By placing any Links onto or within your Lemonade Stand(s), or through other monitoring, tracking or collection technology that we may place into or embed therein, allows us or our Merchants or Partners to receive information from your Lemonade Stand(s) or about Visitors to your Lemonade Stand(s), including, but not limited to, Lemonade Stand location(s) and all Visitor, Transaction and/or tracking code data. Your participation in the Lemonade Stand Program and/or use of the Services constitutes your specific and unconditional consent to and authorization for our or our Merchants’ and Partners’ access to, receipt, storage, use, and disclosure of any and all such information without limitation. Notwithstanding, Lemonade may provide, without limitation, any and all such information to any third party in Lemonade’s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Lemonade reserves the right to be able to utilize tracking code data provided to it, which may include: information about your performance statistics, to analyze Lemonade Stand Program and Service trends, monitor Service efficiencies, maintain the integrity of the tracking code, promote Service capabilities and efficiencies, and promote you and your Lemonade Stand(s) performance to Merchants, Partners or third parties.
(ii) Lemonade may, but is not obligated to, provide your email address(es) and basic Operator account detail and interests (including but not limited to your address, phone, Lemonade Stand name, the date the Lemonade Stand first entered into operation, profile/interest data provided to us by our Partners and Visitor demographics) to Merchants or Partners to provide, promote and enhance our relationships with such parties and the Services.
(iii) Except for the license explicitly granted to you, you do not obtain any license or rights in any intellectual property, including, without limitation, any intellectual property with respect to Lemonade’s, its Partners’ or Merchant’s trademarks, service marks, trade names, URLs, copyrighted material, the Links, link formats, technical specifications, proprietary properties, patents, and patent applications, and agree not to challenge our or such parties’ proprietary rights.
(iv) We and our Merchants and Partners may crawl or otherwise monitor your Lemonade Stand(s) for the purpose of ensuring compliance and the quality and reliability of Links on your Lemonade Stand (for example, to detect links that are broken or non-functional, etc.). Therefore, you agree that we and our Merchants and Partners may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring and that we and our Merchants and Partners may use technical means to overcome any methods used to block or interfere with such crawling or monitoring.
(v) We reserve the sole and absolute right to: (i) decide what category(ies) to classify Your Lemonade Stand within; (ii) select Offers(s) for your Lemonade Stand(s) if you do not select an Offer(s) that we have provided to you; (iii) change, update or add content or Links relevant to us, Merchant Program(s) or the Lemonade Stand Program to your Lemonade Stand(s) for any reason and without notice; and (iv) deactivate your account(s) or any Lemonade Stand(s) for any reason, with or without notice, without liability to you, except for our payment obligation to you for Payouts previously earned by you in accordance with the terms of these Additional Terms.
(vi) We or our Merchants and Partners may from time to time send you email updates, promotions, news letter and alerts (“Email Updates”). By participating in the Lemonade Stand Program and/or accessing or using the Services, you consent to our or our Merchants or Partners sending you these Email Updates.
(vii) You shall comply with these Additional Terms, applicable Merchant’s or Partner’s terms and all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, rules, regulations, etc. are now in effect or later come into effect during the time you are a Lemonade Stand Program participant.
(viii) You shall: (a) not, and shall not authorize or encourage any third party to, sell, redistribute, sublicense or transfer any content or Links obtained from you by us or our Merchants or Partners; (b) not, and shall not authorize or encourage any third party to, use any content or Links obtained from you by us or our Merchants or Partners in a manner intended to send sales to any Web site other than the Lemonade or Merchant or Partner intended Web site or Destination Page; and (c) promptly delete any content or Links that are no longer made available by us or our Merchants or Partners or that we notify you is no longer available for your use.
(ix) You shall not, and shall not authorize or encourage any third party to (i) edit, modify, filter or change the order of the information contained in any Product description, offer or advertisement, or remove, obscure or minimize any Product description, offer or advertisement in any way; (ii) redirect an end user away from any Web page accessed by an end user after clicking on any part of an advertisement, offer or Link (“Destination Page”), or (iii) provide a version of the Destination Page different from the page an end user would access by going directly to the Destination Page or intersperse any content or any advertisements on any error page, registration or “thank you” page (e.g. a page that thanks a user after he/she has registered with the applicable website).
(x) You are solely responsible (and assume all liability and risk) for determining whether or not content that may be submitted or published by us or any Merchant or Partner is appropriate or acceptable to you.
(xi) You shall provide us with accurate information about you, and to maintain up-to-date account information (such as contact and transactional information.) For U.S. taxpayers, this information may include without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information may include without limitation either a signed certification that the taxpayer does not have U.S. activities or a fully completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued Payout. You shall promptly pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Lemonade Stand Program and use of the Services.
(x) We or any of our Merchants or Partners may serve content and/or advertisements on your Lemonade Stand(s), wherever located, and in any manner, mode and frequency that we determine. Such content or advertisements may collect information directly from Visitors and may place or recognize cookies, web beacons or gifs on Visitors’ browsers.
(xi) All Merchants and Partners are responsible for their content posted and Lemonade does not assume any responsibility for any claims made by the individual Merchants or Partners. Lemonade’s allowance of a third party advertisement is not an endorsement of the content or the Merchant’s product, offer or service.
(xii) Any dealings with Merchants, including payment and delivery of goods and services, and any other terms, conditions, warranties or representations associated with such dealings are solely between Visitors and the Merchant. We or our Merchants or Partners may change our or their policies and operating procedures at any time with or without notice. Lemonade is also not responsible for any claims you or Visitors may have against individual Merchants or Partners.
(xiii) The Merchant will process Product orders placed by Visitors who follow Links from your Lemonade Stand to such Merchant’s site. You understand, acknowledge and agree that such Merchant reserves the right to reject orders that do not comply with any requirements that we or they periodically may establish; (ii) we will not be responsible for any aspects of order processing and fulfillment; (iv) such Merchant will be responsible for all aspects of order processing and fulfillment, which shall include, but not be limited to: preparation of order forms, process payments, cancellations, and returns, and handle customer service.
(xiv) We will receive reports from our Partners that will track click through, impressions and/or sales made to Visitors who purchase Products or respond to advertisements by using Links from your Lemonade Stand to our and our Merchants and Partners’ sites or Destination Pages and we will make available to you reports summarizing this click through, impression and sales activity. The providing of, placement, form, content, and frequency of the reports may vary from time to time in our sole discretion.
(xv) You shall be responsible for all usage and activity on your account(s) and for loss, theft or unauthorized disclosure of your password. You shall provide us with prompt written notification of any known or suspected unauthorized use of your account(s) or breach of the security of your account(s).
(xvi) Each and every Lemonade Stand shall, at our discretion, display a Lemonade, Inc. trademark, logo, design, image and/or phrase (and related Links) (collectively “Trademark”).
(xvii) We may add, delete or modify the Trademark at any time and for any reason.
(xviii) You may not in any manner misrepresent or embellish the relationship between us and you or between you and any Merchant or Partner, or express or imply any relationship or affiliation between us and you or you and any Merchant or Partner or any other person or entity except as expressly permitted.
(xix) A Merchant or Partner may apply, or Lemonade may apply, a debit to your account(s) in an amount equal to a Payout previously credited to your account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Merchant; or (v) Operator failure to comply with any applicable terms (collectively “Charge-back”). Charge-backs may be applied to your account at any time, including previous payment cycles.
(xx) If your account(s) has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at Lemonade’s then-current rate shall be applied to such account each calendar month that such account remains an open yet Dormant Account or until such account balance reaches a zero balance, at which time the account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
(xxi) You may have a negative balance if your account(s) is/are debited amounts equivalent to previous Payouts for Charge-backs and you do not have an adequate account balance to cover the Charge-back amounts. When you have a negative balance, you must immediately remit payment to Lemonade in an amount sufficient to bring such account(s) to a zero balance, or such account may be, at our sole discretion, subject to 1.0 % interest per month, compounded monthly or the highest rate permitted by applicable law, whichever is lower.
(xxii) the Links or Services may contain, or direct Visitors or you to sites containing, information that some people may find offensive or inappropriate. The Lemonade Parties make no representations concerning any content contained in or accessed through the Links or Services, and the Lemonade Parties shall not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Link or Services.
(xxiii) You are responsible for all of your activity in connection with the Services.
(xxiv) Lemonade makes no guarantee regarding the level of impressions of or clicks on any offer, Link or advertisement, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to you in connection with your participation in the Lemonade Stand Program, Merchant Program and/or the Services.
(xxv) You shall not use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including materials that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. You shall not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any other automated processes.
(xxvi) We may have access to or be provided with certain of your non-personally identifiable profile information and data (“Operator Profile Data”) that is listed, displayed or stored on any Partner’s or Merchant’s site(s) and/or made available to us by a third party on such Merchant’s or Partner’s behalf. We may use such Operator Profile Data to perform targeted advertisements within your Lemonade Stand(s) and to provide, promote and enhance our relationships with such parties and the Services.
(xxvii) Operators may only register under one account.
9. Non-Bona Fide Transactions.
You must promote Lemonade and Merchants such that you do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to such Merchant from the Link. You shall not, and shall not authorize or encourage any third party to cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where you or your agent are the Visitor. Multiple leads from the same individual, entity or IP address may be considered non-bona fide Transactions, which shall be determined in our or the applicable Merchant’s or Partner’s sole discretion. You shall not earn Payouts for non-bona fide Transactions.
10. Promotions.
You represent and warrant that:
(A) all Promotional means used by you will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that you will not mislead others (B) you agree to: (i) use ethical and legal business practices, (ii) comply with the Lemonade Stand Program, Merchant’s Program and Partner’s terms and these Additional Terms and TOS, (iii) not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications; (iv) not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software) and (v) not engage in diluting, tarnishing or blurring our or our Merchant’s or Partner’s trademarks, trade names, and/or service marks.
We reserve the right to review all of your posting, publishing, marketing, selling and promotional (“Promotional”) activities and may deem such activities inappropriate and a material breach of these Additional Terms in our sole and absolute discretion. We may review an Operator’s conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by you through your Promotional methods, or that is perpetrated through use of the Lemonade Stand Program or Service(s); a finding of which shall be grounds for immediate termination of these Additional Terms or deactivation of your Lemonade Stand(s) or any or your accounts.
11. Information Rights.
Lemonade may retain and use for its own purposes all information you provide. Notwithstanding anything else, you agree that Lemonade may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Lemonade Stand Program and/or your use of the Services, including to third parties that reside in jurisdictions with less restrictive data laws than your own jurisdiction. Lemonade disclaims all responsibility, and will not be liable to you, however, for any disclosure of that information by any such third party. In addition, you grant Lemonade, its Merchants and Partners the right to access, index, and cache your Lemonade Stands and any Web site your Lemonade Stand may be placed upon, or any portion thereof, including by automated means including Web spiders or crawlers.
12. Compensation.
Subject to other provisions in these Additional Terms, Lemonade shall credit your account(s) with a Payout for each qualifying Transaction in accordance with our and the Merchant’s or Partner’s Payout rate and our and the Merchant’s Program or Partner’s terms for the relevant Transaction. Subject to the payment terms set forth herein, Lemonade will issue to you any positive balance in your account for Transactions reported for the previous period(s), together with any Cleared Funds, provided your account balance exceeds the required “Minimum Account Balance” (set by Lemonade at any time in its sole discretion) and you have a valid functioning Pay Pal account. Lemonade shall have no obligation to make payment of any Payouts for which Lemonade has not received payment from the relevant Merchant or Partner of all monies due to Lemonade (including for all Payouts owed by such Merchant or Partner to all Operators) or if you do not have a valid working Pay Pal account and as further set forth herein. If Lemonade elects, in its own discretion, not to make payment to you for amounts not received from a Merchant or Partner, those amounts shall not be included in the Minimum Balance Amount. Payouts of certain funds may be withheld by Lemonade, in its sole discretion, to cover any Charge-backs or potential Charge-backs; provided that, Lemonade shall issue to you any such withheld sum(s) that remain in your account after such Charge-backs are satisfied and/or are no longer needed to be withheld to offset Charge-backs (such remaining sum(s), “Cleared Funds”), in accordance with the terms set forth herein.
If you dispute any payment made in connection with the Services, you must notify Lemonade in writing within thirty (30) days of any such payment. Failure to so notify Lemonade shall result in the waiver by you of any claims related to such disputed payment. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by Lemonade, shall be final and binding on you. No other measurements or statistics of any kind shall be accepted by Lemonade or have any effect under these Additional Terms.
Notwithstanding, your recourse for any earned Payouts not paid to you shall be to make a claim against the relevant Merchant(s) or Partners, and Lemonade disclaims any and all liability for such payment.
Lemonade reserves the right to change its payment terms at any time, upon prior notice to you, which may be sent by email or posted in your profile or on the Services.
13. Support.
Support for Operators is available on-line through the “Contact Us” area in the Lemonade Account Manager, which allows you to categorize and describe your issue.
14. Operator’s Indemnification Obligations.
Operator shall promptly defend, indemnify and hold the Lemonade Parties (as such term is defined in the TOS) harmless from and against all claims, suits, demands, damages, liabilities, losses, penalties, interest, investigations, settlements and judgments, costs and expenses (including attorneys’ fees) as incurred, claimed or sustained, directly or indirectly as a result of (a) Operator’s breach of or non-compliance with these Additional Terms, (b) Operator’s violation of any law, rule or regulation or an alleged violation of law, rule or regulation by the Lemonade Parties, that is a direct or indirect result of Operator’s use of the Service(s), (c) Operator’s access to and/or use of the Service(s), (d) Operator’s participation in the Lemonade Stand Program, (e) any content, goods or services offered, sold or otherwise made available by Operator to any person, (f) Operator’s acts or omissions in using, displaying or distributing any links obtained from the Service(s) or elsewhere, (g) any claim that Lemonade is obligated to pay tax obligations in connection with payment made to Operator pursuant to these Additional Terms, and (h) any violation or alleged violation by Operator of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(h) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this Section 14, the Lemonade Parties shall be entitled, at its/their own expense, and upon reasonable notice to Operator, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Operator’s obligations to indemnify or hold the Lemonade Parties harmless. Operator shall not settle any Claim without the Lemonade Parties prior written consent. Operator also shall indemnify for any reasonable attorneys’ fees or other costs as incurred by the Lemonade Parties in investigating or enforcing this Section 14. This section shall survive any termination of these Additional Terms.
15. Term, Termination and Deactivation.
(a) Term. These Additional Terms shall commence upon your indication that you have accepted these Additional Terms by providing the required information and ‘clicking through’ the acceptance button on the Lemonade Web site and shall continue until terminated in accordance with the terms of these Additional Terms.
(b) Termination. These Additional Terms may be terminated by either party upon 15 days notice. These Additional Terms may be terminated immediately upon notice for your breach or alleged breach of these Additional Terms or upon the request of any Merchant or Partner. Your account(s) and/or Lemonade Stand(s) may be deactivated during investigation of any breach or alleged breach of these Additional Terms or upon request from any Merchant or Partner. If these Additional Terms are terminated based upon your breach or alleged breach, you shall not be eligible to enter into a new click-through Additional Terms with Lemonade, and any attempt to do so shall be null and void. Upon termination of these Additional Terms, or in case of deactivation of your account(s) and/or Lemonade Stand(s), you shall no longer accrue Payouts in your account(s), including but not limited to subsequent sales and/or leads for click-throughs that occurred prior to termination. You are eligible to earn Payouts only on Transactions that occur during the term, and in accordance with the terms herein. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
(c) Termination of Programs and Offers. Merchant Programs and offers may be discontinued at any time and for any reason with or without notice.
(d) Post-termination. Upon termination of these Additional Terms, any outstanding payments, not subject to good faith dispute, shall be paid by Lemonade to you within a reasonable time of the termination date to ensure that the correct amount is paid, and any outstanding debit balance shall be paid by you to Lemonade within 30 days of termination of these Additional Terms. All payments are subject to recovery for Charge-backs. Upon termination of these Additional Terms, any permissions granted under these Additional Terms will terminate.
16. Notice.
Except as provided elsewhere herein, both parties must send all notices relating to these Additional Terms to:
(i) for Lemonade, send to:
P.O. Box 445
South Norwalk, CT 06856
Attn: Legal Department
via registered mail, return receipt requested or via an internationally recognized express mail carrier to (effective upon actual and acknowledged receipt),
with a copy to
Collen IP
80 South Highland Avenue
Ossining, New York 10562,
Attn: Matthew Wagner, Esq.
and, (ii) for you,
at the email or physical address listed on your account (effective upon sending the email) or five (5) days after mailing) or upon posting of such notice onto your Operator profile.
17. Modification.
We may modify any of the terms and conditions contained in these Additional Terms, at any time and in our sole discretion, by posting a change notice or a new agreement on our Web site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THESE ADDITIONAL TERMS. YOUR CONTINUED PARTICIPATION IN THE LEMONADE STAND PROGRAM AND/OR ACCESS TO OR USE OF THE SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
18. Relationship of Parties.
You and we are independent contractors, and nothing in these Additional Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 Lemonade Stand, through Promotions or otherwise, that reasonably would contradict anything in this Section.
19. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE, IN NO EVENT SHALL THE LEMONADE PARTIES BE LIABLE TO YOU FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNATIVE DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIMS ARISING IN CONNECTION WITH YOUR PARTICPATION IN THE LEMONADE STAND PROGRAM OR ACCESS TO OR USE OF THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOUR REMEDIES UNDER THESE ADDITIONAL TERMS ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE ADDITIONAL TERMS.
WITHOUT LIMITING ANYTHING ELSE, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THESE ADDITIONAL TERMS AND THE LEMONADE STAND PROGRAM SHALL NOT EXCEED THE TOTAL PAYOUTS OWED BY US TO YOU UNDER THESE ADDITIONAL TERMS.
NOTHING IN THESE ADDITIONAL TERMS, SHALL EXCLUDE OR LIMIT LEMONADE’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE ADDITIONAL TERMS.
20. Disclaimers.
YOUR PARTICIPATION IN THE LEMONADE STAND PROGRAM AND YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE LEMONADE PARTIES OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE ADDITIONAL TERMS.
THE LEMONADE PARTIES, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. WITHOUTLIMITING ANY OF THE FOREGOING, THE LEMONADE PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE LEMONADE STAND PROGRAM, THE SERVICES OR ANY PRODUCTS, SERVICES OR LINKS MADE AVAILABLE ON OR SOLD THROUGH THE LEMONADE STAND PROGRAM AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO LEMONADE STANDS OR ANY OTHER SITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. THE LEMONADE PARTIES DO NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY MERCHANT PROGRAM, OFFER, ADVERTISEMENT OR CAMPAIGN, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711): THE LEMONADE PARTIES MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR THROUGH THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE ADDITIONAL TERMS.
21. Independent Investigation.
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE ADDITIONAL TERMS AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THESE ADDITIONAL TERMS OR OPERATE OR ENABLE OTHERS TO OPERATE LEMONADE STAND(S) THAT ARE SIMILAR TO OR COMPETE WITH YOUR LEMONADE STAND(S). YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE LEMONADE STAND PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPLICITLY SET FORTH IN THESE ADDITIONAL TERMS.
22. Choice of Law and Location for Resolving Disputes.
Notwithstanding anything else, these Additional Terms and your relationship with Lemonade hereunder, shall be governed by the laws of the State of Connecticut without regard to its conflict of laws provisions. You and Lemonade agree to submit to the exclusive jurisdiction of the courts located within the State of Connecticut to resolve any legal matter arising from these Additional Terms. Notwithstanding this, you agree that the Lemonade Parties shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You understand, acknowledge and agree that a printed version of these Additional Terms will be admissible in judicial and administrative proceedings based upon or relating to these Additional Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. Lemonade controls and operates its Web site from the USA and access or use where illegal is prohibited.
24. Miscellaneous.
You may not assign these Additional Terms, by operation of law or otherwise, without our prior written consent. Subject to that restriction, these Additional Terms will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of these Additional Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these Additional Terms. All remedies set forth in these Additional Terms are cumulative and in addition to and not in lieu of any other remedy of the Lemonade Parties at law or in equity. If any part of these Additional Terms is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of these Additional Terms will remain fully in force. Lemonade shall not bear responsibility or liability for any losses arising out of any delay in or interruptions of its performance of its obligations under these Additional Terms due to any act of God, act of governmental authority, act of the public enemy or due to war, terrorism, illness, riot, fire, flood, civil commotion, insurrection, labor difficulty (including, without limitation, any strike or other work stoppage or slowdown), severe or adverse weather conditions or other cause beyond the reasonable control of Lemonade. The terms and conditions providing for any activity following the termination or expiration of these Additional Terms, any warranties, disclaimers, remedies and any indemnification obligations, and any other provision which, by its terms is intended to survive the termination of these Additional Terms, shall survive the termination or expiration of these Additional Terms.