AFFILIATE PROGRAM AGREEMENT
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This Affiliate Program Agreement is a contract between you and Giddy Holdings, Inc. It describes how you and Giddy will work together, and it includes other aspects of our business relationship. It is a legal document, so some of the language here is necessarily “legalese,” but we still expect you to read it closely.
Please take note that by signing up for Giddy’s Affiliate Program, you are agreeing to these terms and conditions. You are agreeing that you have read this contract and that you understand it. And you are agreeing to be held legally responsible for each and every provision that is set forth below.
Giddy periodically updates these terms. We might also choose to replace these terms in their entirety. If we update or replace the terms, we will let you know, but if you don’t agree to the updates, either we or you can choose to terminate this Agreement as we describe below.
“Affiliate Program” means our marketing affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Agreement” means this Affiliate Program Agreement and all materials referred or linked to herein.
“Commission” means an amount described on the Program Policies Page for each Customer Transaction.
“Customer” means the authorized actual user of the Giddy Products who has purchased the Giddy Products after being an Affiliate Lead.
“Customer Transaction” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement.
“Giddy Products” means the product made by Giddy that is called “Eddie by Giddy”.
“Program Policies Page” means the landing page where we will provide all up to date guidelines and policies for the Affiliate Program.
“Licensed Materials” means any Giddy logos, trade names, trademarks, graphic images and similar identifying material.
“Other Products” means any ancillary services, such as our Size Insurance, and/or such other products that we may offer.
“Site” means a World Wide Web site and, depending on the context, refers either to the Giddy website, www.getmegiddy.com, or any other website owned and operated by Giddy for purposes of this Agreement, or to the portion of the Giddy website that you will link to using Affiliate Links.
“Trademarks” means the trademarks and service marks, if any, of Giddy Holdings, Inc. or other related entities.
“We”, “us”, “our”, and “Giddy” means Giddy Holdings, Inc.
“You” and “Affiliate” means the party, other than Giddy, entering into this Agreement and participating in the Affiliate Program.
This Agreement does not create an exclusive agreement between you and us. Both you and Giddy will have the right to recommend similar products and services of third parties and to work with other parties in connection with the sale of similar services and products of third parties. Likewise, Giddy will have the right to use any, or no, other affiliates for its Affiliate Program.
3. Affiliate Acceptance
(a) Application Submission. You may submit a completed Affiliate Program application to begin the enrollment process. Please note that submission of your application to the Affiliate Program implies acceptance to the terms set forth in this Agreement.
(b) Application Review. Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program. We may reject your application if, in our sole discretion, we determine for any reason that your website is unsuitable for the Affiliate Program. Before we accept an application, too, you understand that we may want to review your application with you, so we may reach out to you for more information. We also may require that you complete certain other requirements or certification(s) before we accept your application. Note that if we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from receiving your application, your application is considered to be rejected.
(c) Acceptance. All decisions for acceptance into the Affiliate Program will be made within our sole discretion. If you are accepted to participate in the Affiliate Program, though, then upon notification of acceptance, the terms and conditions of this Agreement (including any and all updates) shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrollment criteria set out in the Program Policies Page, if applicable. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.
YOU UNDERSTAND AND ACKNOWLEDGE THAT THIS AGREEMENT IS MADE BETWEEN YOU AND GIDDY AND IS SOLELY FOR THE PURPOSE OF ALLOWING YOU TO LINK TO THE GIDDY SITE. AS A CONDITION, THEN, TO YOUR ACCEPTANCE AND PARTICIPATION IN THE AFFILIATE PROGRAM, YOU AGREE TO THE FOLLOWING PROHIBITIONS:
(a) Prohibitions Regarding Language
PLEASE READ THIS SECTION EXTREMELY CAREFULLY.
Because Giddy is a medical device company, and the Giddy Product is an FDA-registered, Class II medical device treating erectile dysfunction (“ED”), Giddy is obligated to use AND NOT USE certain language regarding its treatment device. Specifically, you MAY and MAY NOT use the following language in describing the Giddy Product:
- You CANNOT say:
- FDA approved
- FDA cleared
- FDA endorsed
- FDA recommended
- FDA compliant
- You CAN say:
- FDA Registered
- Class II medical device for ED
- Penile rigidity
- Maintaining erections
- You CANNOT say:
- The device cures ED
- The device prevents ED
- The device diagnoses ED
- The device reverses ED
- The device overcomes ED
- You CAN say:
- The device is an ED treatment
- Treatment for ED
- Can treat ED
- Helps ED
- Addresses ED
- You CANNOT say:
- It’s the most effective
- It’s the only effective
- It’s completely effective
- It’s guaranteed effective
- You CAN say:
- o ED solution
- o Solution for ED
- o The device is effective
- o Proven effective
- You CANNOT say:
- The device helps achieve an erection.
- You CAN say:
- The device helps maintain an erection.
- You CANNOT say:
- Has no side effects
- No risks
- You CAN say:
- No side effects from drugs
Because Giddy has legal obligations to governmental agencies, including the FDA, then in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify Giddy and its parent or related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false, (including court costs and reasonable attorneys’ fees) incurred as a result of claims of governmental agencies, customers, or other third parties against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any of the content above which you are explicitly restricted from using, as well as your misuse, unauthorized modification or unauthorized use of the language and content noted above. TO BE CLEAR, YOU ARE RESPONSIBLE FOR ALL OF GIDDY’S DAMAGES BY USING OR MISUSING THE LANGUAGE LAID OUT ABOVE.
(b) General Prohibitions. You may NOT:
- Engineer any website containing an Affiliate Link in such a manner that pulls Internet traffic away from our Site;
- Publish, link to, sell, otherwise distribute, or place an Affiliate Link on the same page or in close proximity to any material, including textual, audio or video material, which is offensive (including hate speech or violence against a particular group of people); contains any nudity, explicit violence or sexual material; contains depictions of violent or sexual acts; is defamatory to any group or individual; or promotes alcohol, tobacco, or gambling/lottery;
- Publish, link to, sell, otherwise distribute, or place an Affiliate Link on Facebook;
- Attempt to modify or alter our Site in any way;
- Make any representations, either express or implied, or create an appearance that a visitor to your website is visiting our Site, e.g., “framing” or “wrapping” the Site in any manner without first obtaining in advance our express written permission;
- “Scrape” or “spider” the Site or any other websites for content (such as images, logos or text);
- Employ, use or place any web browser add-ons, toolbars or pop-ups on your website;
- Link any Affiliate Link to any website other than our Site, including, for example, your own website;
- Engage in any direct or indirect relationships with ISPs and/or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking (e.g., a user mistypes a web address in the ISP’s address bar or search bar, and, as a result, is redirected to a web page that contains an Affiliate Link that directs the user to our Site);
- Employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Commissions to or from any website;
- Use any Trademark, or any Licensed Materials, provided to you as a result of your participation in the Affiliate Program to advertise or engage in services which result in a sale occurring on your website, whether or not you then have the item fulfilled through our Site;
- Use any Trademark or any Licensed Material in an advertisement that is not created or provided by Giddy in any way that might suggest or imply or mislead or is likely to mislead a visitor to your website into believing that Giddy or any related entity was the creator or sponsor of such advertisement;
- Re-distribute, display or syndicate Licensed Materials and/or Giddy’s datafeed to any third party partner, network or agency;
- Employ, use, or receive any direct or indirect benefit from, any “cookie stuffing” methods (e.g., use of “cookie stuffing” to cause our tracking systems to conclude that a user has clicked through an Affiliate Link – and to pay Commissions accordingly – even if the user has not actually clicked through any such link);
- Install spyware on another person’s computer, cause spyware to be installed on another person’s computer, or use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising other content on a website in a way that interferes with a person’s ability to view that website;
- Display any material on a website containing an Affiliate Link which contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
- Without the prior written approval of Giddy, use any widgets on your website that: (a) include any Trademarks, (b) include any Licensed Materials, or (c) directly or indirectly send traffic to our Site;
- Forward, redistribute, or otherwise repurpose any or all Affiliate Links to any third party;
- Release Giddy’s sales circulars, advertisements or other information prior to their authorized release date; or
- Purchase products or services sold or promoted on our Site through an Affiliate Link for resale or commercial use of any kind.
(c) Prohibitions Regarding Use of Electronic Communications
Electronic Communication includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication unless you first obtain Giddy’s express written permission. You may NOT:
- Send any Electronic Communication that in any way suggests or implies or misleads or is likely to mislead a recipient into believing that Giddy or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication;
- Forward, redistribute, or otherwise repurpose any Electronic Communication that Giddy sends to its affiliates and/or customers; and
- Generate or send any unsolicited Electronic Communication (spam) under this Agreement.
You agree to comply with all opt, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
Additionally, you are bound to act in compliance with all applicable federal, state and local laws and regulations. You shall protect, defend, indemnify and hold harmless us and our parent and related entities from and against any claims, actions, liabilities, losses, damages, costs or expenses (including without limitation attorneys’ fees and costs of litigation), even if such claims are groundless, fraudulent or false, incurred by us or our parent or related entities arising out of any content or activity by you or on your website or resulting from or in connection with your violation of any of the terms or prohibitions contained in this Agreement or any law, rule or regulation.
5. Customer Transactions
(a) Affiliate Links on Your Website or Third Party Websites. Upon acceptance into the Affiliate Program, we will make available to you Affiliate Links. All Affiliate Links must link directly and exclusively to our Site. You may not link directly to our Site without the use of an Affiliate Link. The Affiliate Links will serve to identify your website as a member of the Affiliate Program and will establish a link from a website to our Site. All Affiliate Links that you will use in the Affiliate Program will be provided to you. You also agree that you will display on the website containing the Affiliate Link only the Licensed Material that is provided by us, and you will substitute such images with any new materials provided by us from time to time throughout the term of this Agreement. Note: only valid Affiliate Links will be tracked for purposes of determining Commission that you may be eligible to receive on sales of Giddy Products generated through your participation in the Affiliate Program.
(b) Eligibility. To be eligible for Commission, the Customer must:
(i) Use a browser that has its cookie setting enabled;
(ii) Follow an Affiliate Link (in the format specified by us) from a site to our Site;
(iii) Purchase Giddy Product(s) using our automated ordering system;
(iv) Accept delivery of the Giddy Product(s) at the shipping destination; and
(v) Remit full payment to us.
(c) Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transaction that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by Giddy. You will also be eligible for a Commission on Customer Transactions that take place within thirty (30) days after the Customer has initially entered our Site from your Affiliate Link, as long as the Customer reenters our Site directly during that time (and not through another affiliate’s link). An Affiliate Lead will not be considered valid or accepted if, in our sole determination: (i) the Customer reentered our Site after the thirty (30) day window described above; (ii) the Customer Transaction occurred as a result of the Customer’s search results driven from free or natural search; or (iii) the Affiliate Lead first clicks on the Affiliate Link after this Agreement has expired or terminated. Note: you will not be eligible for Commission payments for a Customer’s purchase of any Other Products; only Giddy Products are eligible for Commission payments.
(e) Commission Payment. Approximately thirty (30) days following the end of each calendar month, you will receive a check for the Commission earned on Giddy Products that were shipped during that month, less any taxes that we are required by law to withhold from the final payment to you. If a Customer requests a refund for the Giddy Product that generated a Commission, you will see a deduction for the corresponding Commission from your next monthly payment; if there is no subsequent payment, you will receive an invoice for the Commission payable within sixty (60) days of your receipt of the invoice. We reserve the right to alter or change the Commission amount. All determinations of Affiliate Links and whether a Commission is payable will be made by Giddy and will be final and binding.
(f) Responsibilities. We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Affiliate Links to our Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. To permit accurate tracking, reporting, and Commission, you must ensure that your Affiliate Links are properly formatted. Additionally, we are unable to track or provide credit for sales from Customers that are referred to us with browsers that do not have their cookies setting enabled.
6. Policies and Pricing
Customers who buy products through this Affiliate Program will be deemed to be customers of Giddy. Accordingly, all Giddy rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their Customer Transactions. We may change our policies and operating procedures at any time consistent with applicable laws. For example, we will determine the prices to be charged for products sold under this Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by Giddy, provided that any price information must be accompanied with a statement on your website to the user that in the event of any price difference between your website and Giddy’s Site, the price listed on Giddy’s Site will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.
In addition to all other terms of this Agreement, including the Prohibitions in Section 4, the following requirements and prohibitions apply to the use of Giddy’s Trademarks.
- You may use the Trademarks only for purposes expressly authorized by us.
- You acknowledge that all rights to the Trademarks are our exclusive property and all goodwill generated through your use of the Trademarks will inure to our benefit.
(b) Prohibitions. You may NOT:
- Modify the Trademarks in any manner. For example, you may not change the proportion, color, or font of the Trademarks.
- Display the Trademarks to disparage Giddy, its Products, or in a manner which in our reasonable judgment may diminish or otherwise damage our good will in the Trademarks.
- Use the Trademarks in any manner not expressly authorized by this Agreement;
- Use the Trademarks, or any variation or misspelling thereof, in metatags, hidden text or source code, in your domain name or any other part of your URL;
- Bid on our Trademarks at any website that provides search engine services and that results in driving traffic to any website, other than our Site, including your website; or
- Bid on the following terms and trademarks in pay-per-click search engines or any other form of keyword-based advertising:
- Get me giddy
- Eddie by Giddy
8. Limited License; Restrictions
(a) We grant you a limited, nonexclusive, nontransferable, revocable right to access our Site through the Affiliate Link solely. In accordance with the terms of this Agreement and solely in connection with the Licensed Materials, only as provided to you by us, and solely for the purpose of identifying your website as an Affiliate Program participant and to assist in generating the sale of Giddy Products.
(b) You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion. We may revoke your license at any time by giving you written notice.
9. Affiliate Representations and Warranties.
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements. You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program, (ii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Giddy’s own advertising, (iii) you will not participate in cookie stuffing or pop-ups, false or misleading links, (iv) you will not attempt to mask the referring URL information, and (v) you will not use your own Affiliate Link to purchase Giddy products for yourself.
10. Term of the Agreement
(a) Term and Termination. The term of this Agreement will begin upon our acceptance of your application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us five (5) days prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination.
(b) Removal of Links; Final Payment. Upon termination, all Giddy related content and links shall be promptly removed from your website. You are only eligible to earn Commission on valid Affiliate Leads occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Site. We will also make commercially reasonable efforts to notify you of such changes prior to or upon implementation. Modifications may include, for example, changes in the scope of available Commission, payment procedures, and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of the Parties
You and we are independent contractors, and nothing in this Agreement 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 website or otherwise, that reasonably would contradict anything in this Section.
You acknowledge that by entering into and performing its obligations under this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your website(s). Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify us and our parent or related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false, (including court costs and reasonable attorneys’ fees) incurred as a result of claims of customers or other third parties against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any of the content or activities of your website (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder.
14. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total Commission paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Affiliate Program or any products sold through the Affiliate Program. Additionally, we make no representation that the operation of our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors; however, we will make commercially reasonable efforts to correct errors or interruptions promptly.
16. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEBSITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATIONS, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, including but not limited to, any press release, client list, screen shot, advertisement or any promotion, without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.
Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists and purchase history, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to Giddy.
Notices will be sent to the contact address set forth herein (as such may be changed by notice given to the other party) and will be deemed delivered as of the date of actual receipt.
To: Giddy Holdings, Inc.
1114 E. Cesar Chavez St.
Austin, TX 78702
Attn: General Counsel
To You: To your address as provided in our affiliate account information for you.
You hereby agree that Notice is sufficient if we give electronic notices specific to you by email to your email address(es) on record in our account information for you.
This Agreement will be governed by the laws of the United States and the State of Texas, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal courts having jurisdiction and venue in or for Travis County, Texas, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
21. Remedies to Giddy
(a) Violation of any of the terms or prohibitions contained in this Agreement may result in, among other things, (a) the immediate termination of this Agreement; (b) the withholding of Commissions due to you; or (c) the commencement of an action by Giddy against you seeking, without litigation, injunctive relief, recovery of actual, statutory or punitive damages.
(b) We have the right in our sole and absolute discretion to monitor your website at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your website for such purpose.
NETWORKS & SUB-AFFILIATES
These requirements apply to your use of the Affiliate Program as a Network. A “Network” is defined as any Affiliate that operates one or more websites as sub-affiliates through one (1) application to the Affiliate Program.
- You agree to all the terms and conditions of this Agreement, including all attached Exhibits, on behalf of all sub-affiliates operating under the Network and are responsible for any action or inaction by such sub-affiliates.
- You must seek prior written approval from Giddy before choosing to operate as a Network.
- You must provide to Giddy a list of all sub-affiliates working within your Network within twenty-four (24) hours of any request from Giddy.
- Any violation of this Agreement by any sub-affiliate may result in immediate termination of the entire Network from the Affiliate Program.
DATA PROCESSING ADDENDUM (AUSTRALIA)
This Data Processing Addendum (“Addendum”) sets out the terms that apply as between Giddy and Affiliate when processing Australian personal data in connection with the Affiliate Program. This Addendum forms part of the Affiliate Program Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Affiliate Program Agreement (“Agreement”) unless otherwise defined in this Addendum.
“controller,” “processor,” “data subject,” and “processing” (and “process”) shall have the meanings given to them in Applicable Data Protection Law;
“Applicable Data Protection Law” means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, Australia Privacy Act and/or the thirteen Australian Privacy Principles (in each case, as may be amended, superseded or replaced from time to time);
“Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.
Purposes of Processing
The parties acknowledge that in connection with the Affiliate Program, each party may provide or make available to the other Personal Data. Each party shall process such data: (i) for the purposes described in the Agreement, and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
Relationship of the Parties
Each party will process the copy of the Personal Data in its possession or control as an independent controller (not as a joint controller with the other party). For the avoidance of doubt and without prejudice to the foregoing, Giddy shall be an independent controller of any Personal Data that it receives or shares with Affiliate in connection with the Affiliate Program.
Compliance with Law
Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data. Neither party shall be responsible for the other party’s compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair and transparent, and shall make available to data subjects a privacy statement that fulfils the requirements of Applicable Data Protection Law.
Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access (a “Security Incident”) and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of Applicable Data Protection Law.