TURN IT BLUE DIGITAL LLC
PARTNER PROGRAM AGREEMENT

(UPDATED  01/12/2024)

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This Partner Program Agreement (the “Agreement”) is a binding agreement between Turn it Blue Digital, LLC (“Turn It Blue”, “TIB”, “We” or “Us”) and you, our Partner, (“You” or "Partner"), even though it is electronic and is not physically signed by You and Turn It Blue. You acknowledge that this Agreement governs your participation in the Turn It Blue Partner Program as further described herein (the “Program”). 

PLEASE READ THIS AGREEMENT CAREFULLY.

Acceptance of Terms

1. By accepting this Agreement, or by participating in the Program, You represent and acknowledge that You have read, understood, and agree to be bound by this Agreement, and that the information You provide in registering for the Program is accurate, complete, and is Yours or within Your right to use. If You are entering into this Program on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not participate in the Program.

2. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You of any material changes affecting your rights through a notification on our website and/or email and direct You to the latest version.

Definitions

The following terms have the meaning assigned to them below:

1. “Affiliate Link” means a unique referral link leading to Your dedicated partner landing page that can be given to Prospective Customers. New accounts that come through this page are automatically affiliated with Your Partner account.

2. “Closed Subscription” means the sale of a subscription of a Turn It Blue Product to a Customer who (i) was an Approved Lead on the date of the sale and (ii) has agreed to the End User Terms and Conditions.

3. “Documentation” means any and all manuals, instructions, specifications and other documents and materials in any form or medium, including contained within a Turn It Blue Product application, that We generally make available to End Users and that describe the Turn It Blue Product operation, use, support, maintenance or other features.

4. “Customer” means an entity that licenses one or more Turn It Blue Products for its own use and not for transfer or resale.

5. “Customer Data” means any information collected, received, processed or maintained by You or on Your behalf from or relating to any Customer or Prospective Customer in connection with the Turn It Blue Products, including all registration information, transaction history and satisfaction data, and related data analytics.

6. “End User” means a Customer or a Person that uses the Turn It Blue Products for or on behalf of such Customer.

7. “End User Terms and Conditions” means the terms of service related to the Turn It Blue Products located at https://www.turnitbluedigital.com/terms-of-service.

8. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.

9. “Net Revenue” means the initial subscription fees and any upgrades or additions to such fees during the subscription term received by Turn It Blue by a Customer relating to a Closed Subscription, less any discounts, taxes, fees, expenses, refunds and/or credits incurred by Turn It Blue.

10. “Partner” means an individual or entity who has applied and been approved by Turn It Blue via the Agency Program Application, and who brings Prospective Customers to Turn It Blue via a lead registration form or Affiliate Link.

11. “Partner Share” means the percentage of the Net Revenue You will receive as set forth below.

12. “Prospective Customer” means an entity who is brought to Turn It Blue by a Partner as a lead for the purpose of converting that entity to a Customer.

13. “Turn It Blue Marketing Materials” means any advertising, promotional or marketing materials for or relating to the Turn It Blue Products that We may make available to You from time to time during Your participation in the Program.

14. “Turn It Blue Products” means the products and services available for sale on our website, including Launch Kits, Content Kits, Support Kits, and Advertising, or any additional products or services listed for sale via https://www.turnitbluedigital.com/

15. “Turn It Blue Properties” means all of the Turn It Blue Products, the Partner Portal, Turn It Blue trademarks (including the Badges), Turn It Blue Marketing Materials, Documentation, Turn It Blue’s Confidential Information, and other technologies, information and materials We provide to You to enable You to market and sell, or provide support or other services for, the Turn It Blue Products.

Marketing and Sales Activity

1. Subject to the terms of this Agreement, We grant You the non-exclusive, non-transferrable, revocable right to describe yourself in promotional, advertising, and marketing materials relating to the Turn it Blue Products as an “Agency Partner” of Turn It Blue. You may not alter the Turn it Blue branding in any way and you must only use the “Agency Partner” designation in connection with participation in the Program. You shall not use the “Agency Partner” designation (i) in or in connection with the advertising, promotion, marketing or distribution of any goods, services or technologies other than the Turn It Blue Products; (ii) as part of Your corporate or trade name or any domain name; in any way that is likely to cause confusion, mistake or deception; or (iii) in any way that is likely to dilute, tarnish or otherwise diminish the distinctiveness of, or jeopardize the reputation of or goodwill associated with the Turn It Blue’s trademarks, Turn It Blue Products or the validity or Turn It Blue's ownership of its trademarks or the registrations therein.

1. If you create any content that relates to the Program or Turn It Blue Products, it must be designated as “unofficial”. For example, “The Unofficial Guide to Using Turn It Blue.”

2. You are prohibited from using Turn It Blue’s name or any Turn It Blue Product name in Google AdWords or in any Pay-Per-Click promotion, without prior written consent of Turn It Blue and in accordance with Turn It Blue’s brand guidelines.

3. You agree to comply with any current and future branding and marketing policies provided to You by Turn It Blue. You agree to immediately discontinue use of any materials that violate this section.

4. You shall bear all costs and expenses related to Your marketing of the Turn It Blue Products other than any Turn It Blue Marketing Materials.

Partner Obligations

At all times during the Term, You will, in accordance with the terms and conditions of this Agreement and at Your own cost:

1. maintain sufficient knowledge of the industry and products competitive with the Turn It Blue Products (including specifications, features and benefits) so as to be able to explain in detail to Potential Customers and Customers: (i) the differences between the Turn It Blue Products and competing products; and (ii) information on standard features of each of the Turn It Blue Products;

2. comply with (i) all then current Turn It Blue policies that are applicable to the Agency Partner Program and (ii) all reasonable directions and instructions from Us concerning the commercialization of the Turn It Blue Products;

3. comply with applicable Law and in a manner that is consistent with good business practice and reflects favorably at all times on the Turn It Blue Products and the good name, goodwill and reputation of Turn It Blue;

4. not directly or indirectly engage in any unfair, unethical, misleading or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Turn It Blue or any Turn It Blue Products, including any dissemination, display or use of any false, misleading or deceptive representations, depictions or materials for or in connection with any advertising, promotion, marketing or distribution of any Turn It Blue Products; and

5. notify Us if you believe any End User has violated the End User Terms and conditions.

You shall not at any time, directly or indirectly (a) sell or otherwise transfer title or ownership of the Turn It Blue Properties; (b) copy, modify or create any derivative works or improvements of any Turn It Blue Products or Documentation; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of any Turn It Blue Product or any part thereof; (d) bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by any Turn It Blue Products, or induce or assist any person to do so; (e) except as expressly permitted in this Agreement, represent yourself as an agent of Turn It Blue, commit Turn It Blue to any contracts or incur any obligation or liability whatsoever on behalf of Turn It Blue for any purpose; (f) make any representations, warranties, guarantees, indemnities, claims or other commitments (i) actually, apparently or impliedly on Turn It Blue's behalf, or (ii) concerning or relating to any Turn It Blue Product that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims or other commitments in this Agreement, the End User Terms and Conditions, the Documentation or any written documents provided or made available by Turn It Blue to You that concern or relate to that Turn It Blue Products; (g) access or use the Turn It Blue Properties for purposes of: (i) benchmarking or competitive analysis of such Turn It Blue Properties, or (ii) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with any of the Turn It Blue Products; (h) market, distribute, license or otherwise make available any Turn It Blue Products to or through any Person other than directly to Customers, Prospective Customers and their respective End Users; or (i) in connection with the Program, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates or otherwise violates any intellectual property right or other right of any person, or violates any applicable Law.

Lead Registration

1. In order to be eligible for the Partner Share, Agency Partners must register the Prospective Customer as a lead using the Lead Registration Form. You will only be entitled to receive Partner Share for a Closed Subscription if (i) You receive a notification from Turn It Blue that the lead has been approved (an “Approved Lead”) and (ii) such Approved Lead results in a Closed Subscription prior to expiration. All registrations will expire after (90) days, unless a longer period is mutually agreed upon by You and Turn It Blue.

2. To register a Prospective Customer the following information must be provided in the lead registration form: company name; company URL; and contact first and last name, email and title. You may only submit a Lead Registration Form for prospects that have expressed an interest in using Turn It Blue products.

3. We may accept or reject Prospective Customers in our sole discretion. However, We will generally accept Prospective Customers if (i) the Prospective Customer is not a current customer of Turn It Blue, (ii) We are not engaged in an active sales process with the Prospective Customer, (iii) we have not had contact with the Prospective Customer in the last six (6) months, and (iv) another Partner has not previously registered the Prospective Customer.

4. Turn It Blue will respond to any lead submission with notification of Acceptance or Rejection via email within two (2) business days.

5. You will not receive Partner Share for a Customer if (i) you did not receive an Approved Lead notification; (ii) the lead was rejected; (iii) the lead has expired; (iv) the lead was previously registered by another Partner; or (v) this Agreement has been terminated.

6. You may also have customers sign up for Turn It Blue directly using your dedicated Affiliate Link. Customers that come through your dedicated Affiliate Link do not have to be registered in advance. A Subscription that comes through your Affiliate Link is automatically eligible for Partner Share.

7. We may from time to time require that you facilitate calls with Turn It Blue and Prospective Customers to ensure the quality of the sales experience. You may from time to time request our participation on calls with Prospective Customers, however, our participation and the level of such participation will be determined by Turn It Blue in our sole discretion.

8. We may introduce you to a Prospective Customer. Your use of such information may be subject to additional rules and policies communicated to you by Turn It Blue. You may use the information regarding the Prospective Customers only for marketing the Turn It Blue Products to such Prospective Customer and for no other purpose. Turn It Blue leads are considered Turn It Blue’s Confidential Information. Upon Our request You will immediately stop using information regarding such Prospective Customers.

9. Nothing in this Agreement shall in any way limit our right to sell the Turn It Blue Digital products, directly or indirectly, to any current or prospective customers.

Tiers

Turn It Blue may (now or in the future) offer certain benefits to You as described on its website based on the level of Your participation in the Program (each a “Tier”). Turn It Blue may determine the benefits available for each Tier in its sole discretion and may change the qualifying criteria of each Tier or the benefits available to any Tier in its sole discretion without notice or liability to You.

Currently there are FIVE Partner Tier Levels, with varying levels of benefits described below, earned based on spending levels with Turn It Blue Digital during the calendar year period. Much like a frequent flyer program, you can earn your way to each subsequent tier level over the course of a 12-month calendar year period. Qualifying spend resets each year on January 1st for a new annual qualifying period. If you reach a particular tier level over the course of the calendar year, that tier status will remain valid for the remainder of the year it was earned PLUS one additional calendar year. For clarity, if you earn the Silver Partner Tier Level in June of 2023, that status will remain valid through Dec 31, 2024.

Partner Tier Levels (as of January 2024) and associated benefits are as follows:

General Partner (up to $100,000 annual spend): 

Certified Partner Badge

Access to our white-label marketing materials

Two free ad templates in the TIB Ads platform 

Access to our Partner Support Team

Silver Partner ($100,000-$499,999 annual spend): 

All previously achieved benefits roll over

Silver Certified Partner Badge

20% discount on template sets / 10% Discount on Custom Display Creative

1% dividend on all ad spend - deposited to your TIB Ads platform wallet

Gold Partner ($500,000-$999,999 annual spend):

All previously achieved benefits roll over

Gold Certified Partner Badge

30% discount on template sets / 20% discount on custom display creative

5% discount on any TIB Video Production package

2% dividend on all ad spend - deposited to your TIB Ads platform wallet OR 1% cash back reward deposited to your bank

Platinum Partner ($1,000,000-$4,999,999 annual spend):

All previously achieved benefits roll over

Platinum Certified Partner Badge

Direct access to a dedicated Client Success Manager

Opportunity to co-sell with our sales team

Unlimited free access to templates / 50% discount on custom display

10% discount on TIB Video Production packages

3% dividend on all ad spend - deposited to your TIB Ads platform wallet OR 1.5% cash back reward deposited to your bank

Sapphire Partner ($5,000,000+ annual spend):

All previously achieved benefits roll over

Sapphire Certified Partner badge

Preferred referral relationship

15% discount on TIB video production packages

5% dividend on all ad spend - deposited to your TIB Ads platform wallet OR 3% cash back reward deposited to your bank

Partner Share

1. You will receive Your Partner Share for Closed Closed Advertising Revenue Subscriptions and/or for as long as the Closed Subscription remains active. Dependent on your Partner Tier Level, the percentage of Partner Share you will receive is between zero and five percent (0-5%) of net revenues, minus any processing fees, resulting from Approved Leads, direct Partner purchases, or sales via your affiliate link.

2. In the event a Partner chooses to take advantage of Partner Specialty Pricing, the Partner is responsible for prepayment of all costs associated with the product BEFORE it is passed along to the End User Customer. Partner Specialty Pricing offers are as follows, and are current as of 1/12/24:

Turn It Blue Launch Kit - Partner Specialty Pricing:

Turn It Blue offers bulk pricing for our Launch Kit product when purchased by an approved Partner. Purchases may be made in bulk as part of a package, or on a pay-as-you-go basis. Discount resets each calendar year on Jan 1st.

•1st kit: $3,500/kit

•2-9 kits: 5% discount, or $3,325/kit

•10-24 kits: 10% discount, or $3,150/kit

•25+ kits: 15% discount, or $2,975/kit

Turn It Blue Ads - Partner Bonus Ad Dollars:

Turn It Blue offers the following structure of added advertising value (bonus ad dollars) to Partners that sign minimum advertising spend commitment agreements at the following levels:

• $500,000 commitment: $2,500 bonus ad dollars

• $1,000,000 commitment: $10,000 bonus ad dollars

• $3,000,000 commitment: $50,000 bonus ad dollars

• $5,000,000 commitment: $100,000 bonus ad dollars

Any bonus ad dollars are available for use ONLY in the Turn It Blue Ads platform and retain no actual cash value. Bonus ad dollars must be redeemed within 365-days of their deposit to the user's Wallet in the Turn It Blue Ads platform. Bonus ad dollars will be applied to your account's Wallet within one monthly billing cycle of reaching the spend commitment threshold.

The Partner’s advertising spend commitment agreement will determine the amount of bonus ad dollars allocated during the term of the agreement, based on the above tier structure. The bonus ad dollars owed by Turn It Blue are due to the client ONLY upon EITHER of the following conditions:

• a) completion of the required spend commitment, OR
• b) upon completion of the agreement's term AND final Partner payment of any outstanding minimum spend commitment and/or service fee commitments.
  
  

If the agreement between Turn It Blue and Partner is altered, amended, or superseded by a subsequent agreement, the bonus ad dollars due to Partner will be determined by the updated advertising spend commitment amount in the NEW agreement, and will void any ad credits from the prior, uncompleted agreement(s) terms. Partners may only earn ONE bonus ad dollars rebate per each calendar year.

Partners that sign a minimum advertising spend commitment agreement shall also immediately become eligible for the Partner Tier Level that aligns with their spend commitment, including any associated tier benefits as laid out in the Partner Tier Level descriptions. For clarity, the following spend commitments align with the associated tier level:

• $500,000 commitment = Gold Partner Tier
• $1,000,000 commitment = Platinum Partner Tier
• $3,000,000 commitment = Platinum Partner Tier
• $5,000,000 commitment = Sapphire Partner Tier

NOTE: Partners wishing to take advantage of the Bonus Ad Dollars benefit MUST enter into an executed advertising spend commitment agreement with Turn It Blue. Partners opting to 'pay-as-you-go' are NOT eligible for this benefit.

3. Payments in the Turn It Blue Partner Program are processed to affiliates by either PayPal or Balance Inc at the sole discretion of Turn It Blue, OR, if elected by the Partner, as a credit for the future purchase of Turn It Blue Advertising. If the PayPal email or your Balance Inc direct deposit information changes, it is the responsibility of the Partner (your responsibility) to update it with Turn It Blue to ensure proper commission payments. We will not resend payments returned due to incorrect payment email addresses or incorrect direct deposit information. Partners, not Turn It Blue, are solely responsible for any fees imposed by PayPal or Balance Inc. to receive their Partner Share.

4. You will not be eligible for any Partner Share if (i) payment of the Partner Share would be prohibited by Law; or (ii) the End Customer is also a Partner.

5. Partner Share will be “earned” as we recognize the revenue of the Closed Subscription or Completed Ad Buy. We will calculate the revenue we recognize during each annual period for Your Closed Subscriptions or Completed Ad Buys and pay the related Partner Share on or before the last day of the following quarter.

6. If We refund any subscription fees or advertising revenue to a Customer, Your Partner Share will be reduced by an amount equal to the relevant Partner Share times the amount of the refund.

7. On a case-by-case basis, you may choose to pass along your Partner Share in the form of a discount to the End User in Advertising Credits or on Your own advertising account. When this happens, you waive your right to Partner Share on that Closed Subscription and will no longer be eligible to receive Partner Share for that Closed Subscription.

8. You may also choose to opt-out of Partner Share altogether. If you waive your right to Partner Share, Turn It Blue is not responsible for any past Partner Share. You may choose to re-enter into receiving Partner Share at any point, but Partner Share will only be paid out on new Closed Subscriptions from that day forward.

9. We may split the Partner Share for a Closed Subscription among more than one Partner if we feel that multiple Partners contributed to such Closed Subscription. We may deny the payment of a Partner Share if You did not have significant impact on or if another Partner secured the Closed Transaction, even if you received an Approved Lead. From time to time We may request proof that you are actively engaged with a Prospective Customer. You are responsible for all taxes associated with any Partner Share that You earn pursuant to the Program.

10. Turn It Blue reserves the right to change the prices for the various Turn It Blue Products from time to time in its sole discretion. Turn It Blue shall honor existing pricing for any Closed Subscription that occurs within ten (10) days of the pricing change, provided that the associated subscription fee is also received by such date. We will notify You of any pricing change by email.

Term

1. The term of this Agreement shall continue for as long as You are participating in the Program unless earlier terminated by either party as provided below (the “Term”).

2. Both Turn It Blue and You may terminate this Agreement at any time without cause upon thirty (30) days written notice (including via email).

3. We may immediately terminate this Agreement and Your participation in the Program if (i) You breach this Agreement; (ii) You become insolvent, You are generally unable to pay, or fail to pay, Your debts as they become due, You file, or have filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, You make or seek to make a general assignment for the benefit of Your creditors, or You apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of Your property or business; or (iii) You engage in unethical behavior or caused a reputational risk to Turn It Blue or Our brand (as determined in Turn It Blue’s sole discretion).

4. Upon termination of this Agreement by Us without cause, You shall be paid Partner Share for any revenue recognized for a Closed Subscription within ninety (90) days of the effective date of termination. Upon termination of the Agreement by You for any reason or by Us for cause, You shall not be entitled to any Partner Share for revenue recognized for any Closed Subscription after the effective date of termination. After any termination, Turn It Blue may use any information related to a Prospective Customer or Customer provided by You to Turn It Blue during the Term for any purpose, including marketing and selling any of Turn It Blue’s products or services or the renewal of any existing subscription. Following termination of this Agreement, You must immediately stop (a) referring to yourself in promotional, advertising, and marketing materials as an “Agency Partner” of Turn It Blue or using any Badges, (b) demonstrating, and marketing the Turn It Blue Products to Customers and Prospective Customers, (c) using the Partner Portal, (d) using the Turn It Blue Products internally for servicing and supporting End User’s use of the Turn It Blue Products, (e) using any Turn It Blue Marketing Material or any intellectual property of Turn It Blue, including our trademarks, and (f) using any information Turn It Blue Confidential Information.

Representations

You represent and warrant to Turn It Blue that: (a) You have the full right, power and authority to enter into, and to perform Your obligations under this Agreement; and (b) Your participation in the Program will not conflict with any contract to which You are a party. 

Intellectual Property

1. The Turn It Blue Properties are provided to You solely for the purposes described herein. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to any of the Turn It Blue Products or other Turn It Blue Properties and We retain all rights in the Turn It Blue Products and other Turn It Blue Properties. Nothing in this Agreement grants or conveys, or permits You to grant or convey, any ownership right in any of the Turn It Blue Properties, or any article or copy thereof or intellectual property rights therein.

2. Turn It Blue shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Turn It Blue Products or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) Turn It Blue receives from You or any Customer, Prospective Customer or End User without compensation to You or any other party.

3. Turn It Blue shall have a royalty-free, worldwide, non-transferrable, non-exclusive right to use and display your name and logo in connection with the Program and this Agreement.

Confidentiality

1. In connection with this Agreement and the Program each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to the following paragraph, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, products, features, employees, plans, strategies, partners, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all unpublished Documentation, non-public Turn It Blue Marketing Materials, and information about Prospective Customers, including Customer Data, are Turn It Blue’s Confidential Information.

2. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with the Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

3. The Receiving Party shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care. 

Disclaimer of Warranties and Liability

ALL TURN IT BLUE PROPERTIES, THE PARTNER PORTAL, THE PROGRAM, AND ANY OTHER INFORMATION, MATERIALS OR WORK PRODUCT PROVIDED BY TURN IT BLUE ARE PROVIDED “AS IS” AND TURN IT BLUE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TURN IT BLUE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TURN IT BLUE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE TURN IT BLUE PRODUCTS (IN WHOLE OR IN PART), INCLUDING BUT NOT LIMITED TO THAT ANY TURN IT BLUE PRODUCT OR OTHER TURN IT BLUE PROPERTIES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR, YOUR CUSTOMERS’ OR ANY OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY HARDWARE, SOFTWARE, DEVICE, SYSTEM OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF ANY VIRUS, MALWARE OR OTHER HARMFUL CODE OR ERROR FREE. TURN IT BLUE DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICE OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITE, LOST OR UNDELIVERABLE EMAIL, AND FOR ANY OTHER REASON. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE TURN IT BLUE PRODUCTS ARE MADE DIRECTLY TO END USERS SOLELY UNDER THE TERMS AND CONDITIONS OF THE END USER'S TERMS AND CONDITIONS.

Limitation of Liability

1. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (ii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TURN IT BLUE’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, SHALL NOT EXCEED THE AGGREGATE AMOUNT OF PARTNER SHARE EARNED BY YOU FOR CLOSED SUBSCRIPTIONS IN THE TWELVE MONTHS PRECEDING THE APPLICABLE ACTION. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, TURN IT BLUE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

Indemnification

You agree to defend, indemnify, and hold harmless Turn It Blue from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from (i) Your breach of this Agreement, (ii) Your participation in the Program, (iii) Your access to, use, misuse or illegal use of Customer Data, and (iv) Our use of any Customer Data that you provide to us. Turn It Blue will provide You notice of any such claim, suit, or proceeding and provide all information and assistance reasonably requested by You related to defense of the claim. Turn It Blue reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Turn It Blue’s defense of such matter.

Compliance with Law

1. You will comply with opt-out, unsubscribe, “do not call” and “do not send” requests from Customer, Prospective Customer and End Users in a timely fashion. You will be solely liable for any and all damages, losses, expenses, costs (including reasonable attorneys' fees) and other liabilities arising out of or related to advertising, creative, and/or messaging other than the content of the Turn It Blue Marketing Materials.

2. The Turn It Blue Properties may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. You shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any of the Turn It Blue Properties to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Turn It Blue Property is prohibited by applicable Law.

3. You shall at all times remain in compliance with the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”). You shall not directly or indirectly through any third party make any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; make any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; make any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or fail to disclose to Turn It Blue fully any contribution or payment made by You (or made by any Person acting on its behalf of which You are aware) that violates the FCPA.

Assignment

You may not may assign this Agreement or any of its rights under this Agreement directly or by reason of merger, reorganization, sale of all or substantially all of Your assets, change in control, operation of law or otherwise, without the prior written consent of Turn It Blue. We may assign this Agreement, without Your consent to a parent, affiliate, or successor by way of a merger, reorganization, sale of all or substantially all of Our assets, change in control or operation of law. Subject to the foregoing restrictions on assignment, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto. 

Entire Agreement; Amended Terms

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous understandings whether oral or written between You and Turn It Blue.

Notices

Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. You should send notices directly to us to Turn It Blue, LLC, 780 Utica Avenue, Boulder, CO 80304, Attn: General Counsel and electronic notices should be sent to hello@TurnItBlueDigital.com. Unless otherwise specified in this Agreement, We will send notices directed to You to the address or email provided in your registration for the Program.

Severability

If any part of this Agreement is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.

Relationship; Independent Contractor

Neither Your participation in the Program or this Agreement shall be construed to create any association, partnership, join venture, employee or agency relationship between You and Turn It Blue for any purpose. You have no authority (and You shall not hold yourself out as having authority) to bind Turn It Blue, except as specifically provided herein.

No Waiver

Turn It Blue’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

Governing Law

The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Colorado without giving effect to the conflicts of laws provisions or principals thereof.

Arbitration of Disputes

If we cannot amicably resolve any legal dispute that should arise from Your participation in the Program, You agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Boulder, Colorado in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both You and Turn It Blue. If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Colorado shall apply to the arbitration proceedings. You agree that the arbitrator’s decision shall be final and binding, and that the prevailing party shall be entitled to recover attorneys’ fees from the other party. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Boulder County, Colorado.