1. Preamble
    This Agreement, including the Advertising and Promotion Guidelines and the description of the Freak Shake Ambassador Referral Program provided on the FreakShake.co “$uper Freak Programs” Pages (collectively the "Agreement") is a legally binding agreement between Freak Shake, LLC ("Freak Shake"), and each of its participating Referrers. BY REGISTERING FOR AND PARTICIPATING IN THE Freak Shake Referral Program (THE "PROGRAM"), YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. By checking or clicking the "Apply Now" or similar language box on the enrollment page at FreakShake.co, you agree that the effective date of this Agreement is the date on which you check such box. By applying for the affiliate program, you also agree to comply with the terms and conditions of our Affiliate Marketing Partner GoAffPro documented here.
    If you have any questions about the Freak Shake Referral Policy please contact us.
    Once you are accepted into the Program, your participation in the Program is governed by this Agreement. Even after you are accepted into the Program, Freak Shake may terminate this Agreement and your participation in the Program for any reason or no reason at any time. In addition, Freak Shake may terminate this Agreement and your participation in the Program immediately if Freak Shake determines that you or your Site (as defined below) violates any terms of this Agreement.
    2. Eligibility and Registration
    When you register, you state and warrant that you adhere to our eligibility terms, as stated in this section.
    2.1. Registration
    You may register as a general Referrer through the Freakshake.co website.
    2.2. Eligibility
    (a) Corporation: If you are a corporation, you hereby warrant that you are a valid corporation, business, partnership, non-profit entity and/or government agency, which is solvent and may enter into these binding terms. You hereby warrant that the first user who opened an account is the design
    (b) Person: If you are a natural person, you hereby warrant that you are alive, well, and able to enter into an agreement. You also warrant that you at least 18 years of age.
    (c) No Proscribed State Resident: You do not reside in any proscribed state nor in any state that is embargoed by the United States department of commerce or any applicable law these include North Korea, Iran, Libya and other states that are listed in the US Embargo website.
    (d) Solvency: You are solvent and have not filed for bankruptcy, liquidation, debt arrangement, or otherwise lost your ability into entering into agreements such as these terms.
    (e) Previously Restricted: You were not previously blocked or banned by us from having an account.
    2.3 Authentication and Security
    As a Referrer, you may be requested upon signup to provide specific information such as a username and password, and to provide us with information relating to how you will promote the Products, in which domains you will do so, and other information.
    Freak Shake may also send you an email to verify your ownership of the email address which was used for registration.
    One Account For One Person. It is Freak Shake’s policy to have one account for one person, and one person for one account. You cannot hold more than one account, and you cannot allow others to access your account.
    Responsibility. You are solely responsible for all actions performed in the Services with your credentials, including your username and password. Keeping your password safe is your sole responsibility. If you have any reason to suspect that your account was compromised or that there was unauthorized access to your account, you must immediately notify Freak Shake.
    3. The Services
    Freak Shake will provide the following services as a part of the “service” and or “services”; where these terms refer to the term “Services” and/or “Service” they refer to the services provided under this agreement and defined in this article. It may add other services and functionality and/or modify some of the services according to future decisions. However, material changes in the service shall be posted.
    3.1. The Referrer Portal, Rights & Obligations
    The $uperFreak Ambassador Portal is the main section that you have access to. It provides you with data about campaigns, participation in specific Referral Programs, payouts and other data, such as sales statistics. The Referrer Portal will also include the link to the unique discount code assigned to you, use of which will determine your Referral Compensation.
    Freak Shake may update the look and feel, as well as functionality for the Referrer Dashboard, and disable or enable specific parts of it to a specific user or classes of users.
    4. Compensation
    4.1. Certain Definitions.
    As used herein: A “Visitor” means any person, other than you, your employees or agents or any minor, who accesses the Freak Shake Site.
    A "Visitor Transaction" means a visit made to the Freak Shake Site by a Visitor who accesses the Freak Shake Site directly by clicking on a button or link to the Freak Shake Site that is contained in Freak Shake's Advertisements displayed on your Site, social media posts or email communications.
    "Net Sales" means the total net retail dollar amount actually received by Freak Shake from Visitor Transactions for goods that are ordered, paid for, delivered, accepted and not returned, excluding any discounts, returns, chargebacks, bad debts, taxes, shipping and handling charges, and insurance.
    “List Price Value” means the total dollar value of goods ordered from Visitor Transactions before discounts, returns, chargebacks, bad debts, taxes, shipping and handling charges, or insurance have been incurred.
    4.2 Commission Structures.
    The Referrer shall choose which commission structure they prefer when registering the first time.  The Referrer may change their commission structure at any time through the Referrer Portal.
    The following Commission Structures are available to the referrer:
    (a) Freak Shake shall pay Referrer a 15% Commission on every $1 in Net Sales.  Payments are made solely after accruing a threshold of USD $50 in commissions and on a monthly basis. They are calculated from the Net Sales for all Visitor Transactions for the month.
    (b) Payments shall be made on net 45 day terms based on the date that Referrer surpasses the commission threshold.
    (c) Commissions can only be tracked through the Referrer's unique affiliate links or unique coupon codes which can be located in the Referrer's $uperFreak Ambassador Portal. Sales that are transacted without using a unique affiliate link, or affiliate coupon code cannot be tracked and will not accrue to any affiliate's account.
    (d) Referrer commission terms are under continuous review and are subject to change at the discretion of Freak Shake.  Freak Shake reserves the right to remove a Referrer from the Freak Shake referrer network at any time for any reason.
    4.3 Payment Processing.  Freak Shake uses Paypal to issue commission payments to Referrers.  The Referrer must have an active Paypal account in their name in order to receive payments.  
    4.4. Payment Disputes. You must raise all compensation disputes within sixty (60) days of the date the applicable order is placed. If you dispute a compensation payment, or non-payment, in excess of sixty (60) days from the date on which the applicable order was placed, Freak Shake has no obligation to make any such compensation payment on such order.
    4.5. Returns, Cancellations, Non-Shipment. Freak Shake reserves the right to reverse compensation payments for orders that have been returned, canceled, or not shipped within sixty (60) days of the initial purchase date.
    4.6. Books are final.  Freak Shake’s books and records are deemed as accurate, and any other measurement you may have of either the Referrer Commissions or other metrics is null and void.
    5. Intellectual Property Rights and Promotion
    5.1 Freak Shake’s Intellectual Property Rights
    Solely for purposes of this Agreement, Freak Shake hereby grants to Referrer, and Referrer hereby accepts, a non-exclusive, revocable, worldwide right to use the Freak Shake name and logo in connection with the display of advertising content on Referrer's Site. You agree that all intellectual property rights created in conjunction with the Program, including, without limitation, all copyrights, trademarks, and trade dress related to any promotional or advertising materials vest in and are owned exclusively by Freak Shake in perpetuity and such ownership will survive the expiration or termination of this Agreement. Referrer shall execute and deliver any documents and take any action required to confirm assignment to Freak Shake of any intellectual property rights not otherwise vested in Freak Shake, including any rights vested in third parties for promotional or advertising materials. Any content created under or in relation to this Agreement will be considered work made for hire. Referrer shall not have the right to sublicense or assign the rights granted to Referrer under this Agreement.
    By posting or submitting content via the Program, you grant Freak Shake a non-exclusive, worldwide, perpetual, irrevocable, unrestricted, royalty-free, fully paid-up, transferable license, with the right to sublicense (through multiple tiers), to access, use, copy, publicly perform, digitally perform, publicly display, or otherwise exhibit and distribute (through multiple tiers) such contributed content, and to transmit, sell, modify, create derivative works from, and/or to incorporate such contributed content into other works in any form, medium or technology, whether now known or hereafter developed, in each case, for any purpose whatsoever, commercial or otherwise, without compensation to you or any third party. You agree to waive any moral rights that you may have to your contributed content.
    The content that you submit is deemed non-confidential and neither Freak Shake, nor any user of the Freak Shake website and/or Program services has any obligation to maintain the confidentiality of any content.
    For a complete description of how Freak Shake will use and protect your personal information, see the Freak Shake Privacy Policy. If you object to your information being transferred or used in this way, please do not use our services and do not post, publish, or submit any content. You represent and warrant to Freak Shake that you have the full legal right, power, and authority to grant to Freak Shake the rights and license provided for herein, that you own or control the complete exhibition and other rights to the content you submitted for the purposes contemplated in this license. You represent and warrant to Freak Shake that you will not contribute any content that: (a) infringes, violates, or otherwise interferes with any intellectual property right of another party; (b) reveals any trade secret, unless you own the trade secret or have the owner's permission to reveal it; (c) infringes on the privacy or publicity rights of another; (d) is libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, offensive, or otherwise violates any law or right of any third party; or (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or information.
    You are solely responsible for any content that you submit. You may be held legally liable for the content that you submit and may be held legally liable if your submissions include, for example, defamatory comments or material protected by copyright, trademark, patent, trade secret law, or other proprietary right without permission of the author or owner. Freak Shake is not obligated to use any Content submitted by you in any manner.
    5.2. Your Intellectual Property Rights
    You grant Freak Shake a non-exclusive, non-transferable, revocable right to use and display your logos, trade names, trademarks, service marks, and similar identifying material (collectively "Referrer Licensed Materials"), solely for the purposes contemplated under this Agreement, including allowing Freak Shake to list your name and trademark as Referrer in the Program on the FreakShake.co Site.
    5.4. Using Referrer Data
    If you are a Referrer, you hereby provide us the permission and right to use data and information relating to the revenues which you generated while participating in a Referral Program to: (i)conduct research and improve the Services; (ii) use them to display statistic, non-identifiable information when promoting the Services or a Referral Program; (iii) create case studies, where in such case your information shall be anonymized and without any identifiers such as name.
    5.5. Acceptable Use Policy
    Freak Shake employs a strict Acceptable Use Policy, which a violation of may cause termination of your account and suspending all funds held until further investigations.
    The Acceptable Use Policy limits: (a) the use of the services to a reasonable level; (b) a limit on using the service with harmful content, such as content infringing on the rights of third parties or the law (c) use of the services to compete with us or with our Vendors; (d) reselling or relicensing the service to others; (e) use of the services to commit a crime; (f) use of the services to access unauthorized material; and (g) generation of false clicks or traffic.
    You shall not: (i) copy, distribute or modify any part of the service without Freak Shake’s prior written authorization; (ii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content (as defined below), except as expressly authorized herein; (iii) disrupt servers or networks connected to the service; (iv) use or launch any automated system (including without limitation, "robots" and "spiders") to access the service; and/or (v) circumvent, disable or otherwise interfere with security-related features of the service or features that prevent or restrict use or copying of any Content.
    If you are a Referrer, we consider the following to be a “Bad behavior”, which shall result in the suspension of your account and withholding of all funds: (i) Competition: if you are using the services to promote two competing Products without prior written consent; (ii) the use of spam, or automated means to generate traffic or promote the Products; (iii) the use of keyword advertising in a manner that competes with the Freak Shake’s own keyword advertising (such as bidding on words Freak Shake is, or may, bid on), including any keyword advertising which is based on any Freak Shake trademark; (iv) the use of domains which include the Freak Shake’s trademark (even if unregistered) without its prior written consent; (v) any misleading advertisements relating to the Products; (vi) using the Referral Program to receive self-discounts or to provide others with cashbacks; or sharing your Referral Commissions with others; (vii) posting fake or false reviews of the Products; (viii) operating websites that offer discounts or coupons solely for the purpose of promoting the Products; (ix) the use of Referral URLs to track people.
    You may not post information relating to the Referral Commissions in public and any Referral Commissions are confidential.
    5.6 Cookies and Referral URLs
    In order to properly track our Referral URLs, Freak Shake is required to place a cookie on the end-users’ browsers. This cookie does not capture any identifiable personal information from your site’s visitors.  However it is your sole responsibility to notify and obtain the consent of your websites’ visitors to the placement of such cookies on your sites. Any domain which uses the Referral URLs shall be required to have a prominent privacy policy that notifies site visitors that cookies are used.  We suggest including the following text on your site or in your privacy policy:
    “In order to participate in the Freak Shake Referral Program, we are required to place a cookie to track your visit in our website, which anonymously tracks you as a visitor originating from our domain in order to calculate revenues which we may be entitled to under the Freak Shake Referral Program.  This cookie does not capture or share any personal identification data and is not used for behavioral targeting”.
    5.8. Report a Referrer
    If you believe that one of the Referrers is abusing the Referral Program or is otherwise in breach of these Terms, you may report it so that Freak Shake may open in inquiry by emailing info@Freak ShakeBrands.com. If found correct, Freak Shake may close its account and freeze its Referral Commissions.
    6. Support
    Freak Shake shall provide you support through digital channels. Such support shall be provided during regular business hours. Freak Shake’s support shall assist you in any service related question and shall also provide you with walkthroughs in the service. In any case of service malfunction, Freak Shake’s support shall also attempt to resolve the malfunction in a timely manner.
    Your Representations and Warranties
    (a) You hereby represent and warrant to us that: (i) you have duly and validly assented to this Agreement and it constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; (ii) your Site complies with your obligations described in the Agreement, including, but not limited to, your obligations regarding eligibility, advertising, privacy, and e-mail; (iii) the assent to the terms of this Agreement, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation to which you are subject, (b) any order, judgment, or decree applicable to you or binding upon your assets or properties, (c) any provision of your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to you or binding upon your assets or properties; (iv) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby; and (v) there is no pending or, to the best of your knowledge, material threatened claim, action, or proceeding against you, or any subsidiary or sub-Affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
    (b) You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising, or unsolicited commercial email or otherwise fail to comply with any laws and/or regulations that govern email marketing and/or communications. You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by your site content /site visit or by downloadable software applications for which you are the owner/operator.
    (c) Freak Shake makes no express or implied warranties or representations with respect to the Program, your potential to earn income from the Program, the FreakShake.co Site, the FreakShake.co or Freak Shake Licensed Materials, or the products and services offered on the FreakShake.co Site, including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. In addition, Freak Shake makes no representation that the operation of the FreakShake.co Site will be uninterrupted or error free, and FreakShake.co will not be liable for the consequences of any interruptions or errors. Freak Shake will not, and is not obligated to, make any representations, warranties, or other statements concerning you, your Site, any of your products or services, or your Site policies, except as provided in the Advertisements. 
    7. Indemnification. 
    You agree to indemnify, defend, and hold harmless FreakShake.co and Freak Shake’s parents, subsidiaries, affiliates, successors, and assigns from any and all claims, suits, demands, allegations, investigations, or other actions and damages, fines, costs, losses, fees, and settlements arising therefrom ("Claim(s)") including, without limitation, attorneys' fees, which result or arise from or relate to, directly or indirectly, this Agreement or the Program; the development, operation, maintenance, and contents of your website; or your negligence or breach of this Agreement. You shall promptly notify Freak Shake in writing of any Claim related to this Agreement and cooperate with Freak Shake at your sole expense. You shall promptly allow Freak Shake to select/employ counsel and take control of the defense and investigation of such action and agree that such counsel has full authority to enter into a settlement. Any settlement on behalf of Freak Shake requires Freak Shake’s prior written consent.
    8. General Provisions
    (a) Amendment: Freak Shake may amend these terms from time to time, provided that you shall be informed by electronic mail upon such change. Such changes shall not come into effect until at least 14 days following the amendment and shall not have any retroactive effect on your rights.
    (b) Survival: Upon termination of these Terms of Service, the stipulations relating to limitation of user generated content, liability, warranty, indemnification, governing law and jurisdiction shall survive.
    (c) Assignment: You may not assign any of your rights and/or obligations under these terms to any third party. Freak Shake may assign its rights and obligations under these terms, by providing you with a 30 day written notification.
    (d) Independent Parties. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing contained herein shall imply any partnership, joint venture, or agency relationship among the parties, and no party shall have the power to obligate or bind another party in any manner whatsoever, except to the extent herein provided.
    (e) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
    (g) Conflicts. In the event of any direct conflict between the terms of this Agreement and any other terms and conditions relevant to the Program by any party to this Agreement, the terms of this Agreement shall prevail.
    (h) Governing Law. Notwithstanding any different choice of law provision contained in any other agreements relevant to the Program, the laws of the United States and the State of California will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the Federal or State courts located in San Diego, California and you irrevocably consent to the jurisdiction of such courts.
    (i) Entire Agreement. This Agreement, including the Preamble, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties.
    9. Term and Termination
    (a) The term of this Agreement will begin upon acceptance of your Program application (the "Effective Date") and shall remain in effect, unless sooner terminated as provided herein, for an initial term of two (2) years from the Effective Date.
    (b) Terminating Your Service: We shall have the right to terminate your use of the Service or to terminate the Service at any time and by providing you, or the entirety of users, a 7 day prior notice. Notwithstanding, we may terminate your use of the service at any time and without prior written notice in any case where it believes that you breached these terms and such breach may cause Freak Shake irreparable harm unless your account is terminated immediately.  Within two (2) days of termination of this Agreement, you will stop displaying all Freak Shake Advertisements or any other references to Freak Shake or Freak Shake.
    10. Definitions
    (a) “User Dashboard” shall mean the user facing dashboard meant to be used by Referrers and Customers to manage their assets, licenses, products and other items.
    (b) “Referrals” shall mean persons who purchased the Products after clicking the Referral URLs, in accordance to the Referral Program.
    (c) “Referral Commissions” shall mean the payments made by Freak Shake to the Referrer in accordance to the terms of the Referral Program.
    (d) “Referral URLs” shall mean unique identifiers provided by us to each Referrer which allows the placement of a cookie on the end-user’s device to track its purchase of a Product.
    (e) “Referral Program” shall mean the terms stipulated in this Agreement where Referrals are entitled to Referral Commissions.
    (f) “Referrer Dashboard” shall mean the webpages which include the ability for Referrers to control their participation and use of the Referral Program
    By participating in the Program, you agree to abide by the terms of these Advertising and Promotional Guidelines, including, but not limited to the following obligations.
    1. Your content related to the Program may not: mislead others; use promotional means that 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; engage in and/or facilitate spamming, indiscriminate advertising, or unsolicited commercial email; and/or infringe on any third party's proprietary rights.

    2. You shall at all times comply with all Applicable Laws, including, without limitation, clearly and conspicuously disclosing all paid endorsements and/or testimonials contained in any online posts made about Freak Shake or the Program. In the event Freak Shake notifies you that any online post violates any Applicable Laws (in Freak Shake’s sole discretion), including, without limitation, your failure to provide a clear and conspicuous disclaimer or any other disclosure, you shall remove and/or revise such social media post to ensure its compliance within one (1) calendar day. As used herein, “Applicable Laws” shall mean all applicable laws, rules, regulations, industry codes of practice, and regulatory guidelines, including the Federal Trade Commission’s (“FTC”) “Guides Concerning the Use of Endorsements and Testimonials in Advertising” and related guidance, the FTC’s “.com Disclosures” guidance, the FTC’s “Native Advertising: A Guide for Businesses” and the FTC’s guidance on clear and conspicuous disclosures in online advertising.