To be an authorised Affiliate or Agency Partner of www.AppSprout.com, you agree to abide by the Terms and Conditions contained in this Agreement.
As used in this Agreement:
“AppSprout” or “we”, "our" or "us" means AppSprout.com (or its beneficial or legal owner as the context may require). AppSprout is a registered trademark and all references to AppSprout shall be read as AppSprout™.
“Applicant” or “you” means you.
“Partner” or “Affiliate” or “Agency Partner” means an Applicant who has completed the online application form described below and who has been accepted by AppSprout into the Affiliate and/or Agency Program.
“Your Site” means your website on which you promote AppSprout or any AppSprout product or service, as a Partner of AppSprout.
The “AppSprout Site(s)” shall mean any websites that are owned and operated by AppSprout.
In order to maintain a high quality program for Partners, AppSprout monitors all Partner Program activity and does not accept any Partners whose web site(s) or online activity does not comply with this Agreement.
AppSprout Partner Program Agreement
Partner Program Agreement: By completing and submitting the accompanying (AppSprout) Partner Program online application form (as further set out in clause 3), you are agreeing:
to enter into a legal agreement with AppSprout which contains all of the terms and conditions below and governs your participation in the AppSprout Partner Program (the “Partner Program” or “Program”).
Operate or utilize a Web site or email link to Web sites that contain or promote any of these types of content: libellous, defamatory, obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, or that offer any illegal goods or service, or link to a Web site(s) that do so; and/or
Engage in spamming, indiscriminate advertising or unsolicited commercial email;
Engage in cyber squatting or typo squatting; and/or
Offer incentives of any kind such as for reading emails, clicking on links (including PTC programs), registering to web forms or offering any incentives of any kind for any of AppSprout’s campaigns is strictly prohibited. Anyone found in breach of our policies will be terminated from the Partner Program and commission balance set to $0.00.
Purpose: The purpose of this Agreement is to govern the terms and conditions relating to:
HTML linking between Your Site and the AppSprout Site(s); and
Your membership to the AppSprout Partner Program(s).
Statement of Investigation
Independent Evaluation: You acknowledge that you have read this Agreement and agree to all of its terms and conditions. You acknowledge that you have independently evaluated the desirability of participating in the AppSprout Partner Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
Jurisdiction: You acknowledge and understand that as well as being bound by this Agreement, you may be subject to laws in your own jurisdiction, including (but not limited to) laws and regulations relating to affiliate marketing, referral selling, privacy and information gathering, electronic communications, fair trading, tax, financial reporting and company or other corporate reporting. You are responsible for compliance with the laws of your own jurisdiction and you should seek independent legal and financial advice in your jurisdiction to ensure that your use of any AppSprout product or service, including your membership to the AppSprout Partner Program, does not breach the laws of your jurisdiction.
AppSprout Products: You acknowledge and understand that you are NOT required to purchase any product, including any AppSprout product, or acquire any service, to be eligible to enter the AppSprout Partner Program. Membership to the Partner Program is by application only.
Application to the AppSprout Partner Program
Your Application: To begin the application process, you must submit a complete Partner Program application. AppSprout may reject or terminate your application if it determines (in its sole discretion) that you are unsuitable for the AppSprout Partner Program for any reason, including but not limited to:
If you incorporate images, text or content that is in any way:
is lewd, profane, obscene, or indecent, including any content that is violent or pornographic or that contains nudity, explicit violent or sexual material, or depictions of violent or sexual acts;
is harassing, threatening, abusive, inflammatory or otherwise objectionable, including content used to harass, stalk or threaten a person;
is unlawful or that could facilitate the violation of any applicable law, regulation or governmental policy;
offers or disseminates any fraudulent goods, services, schemes or promotions, including any make-money-fast schemes, chain letters, or pyramid schemes;
is libellous, defamatory, knowingly false or misrepresents another person;
infringes upon the intellectual property rights of any third party, including the copyrights, trademarks, trade names, trade secrets or patents of such third party;
is harmful to AppSprout’s or any other party’s systems and Programs, including any transmissions which may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data or personal information;
violates any obligation of confidentiality;
violates the privacy, publicity, moral or any other right of any third party; and
consists of any other content that AppSprout in its sole discretion deems to be unacceptable content; or
If you are threatening or abusing in any way, any of AppSprout’s staff, including directors, managers, support operators and/or web designers; or
If you provide us with fake details such as your name and/or address or, if requested, you provide us with a fake copy of your photo id.
Suspension or Termination: Your account(s) may also be suspended or terminated when multiple active Partner accounts have been found to be registered under the same personal data including name, email address etc. If AppSprout rejects or terminates your application, you may re-apply at any time, and AppSprout may reconsider the application.
Related Party: AppSprout reserves the right to decline (in its sole discretion) any application submitted by any relative, friend and/or acquaintance of any AppSprout employee (including support staff and managers).
No warranties or representations: Except as expressly set forth in the Agreement, AppSprout makes no representations or warranties, and to the maximum extent permitted by law, expressly disclaims any representations or warranties, express or implied, regarding the Partner Program, the Links, trademarks, the AppSprout Sites, any service provided by AppSprout and any content, tools, or related documents or materials (in electronic form or otherwise) provided by AppSprout, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose, title or non-infringement and implied warranties arising from a course of dealing or course of performance or trade usage. AppSprout expressly disclaims any representation or warranty regarding the performance, availability, functionality, or any other aspect of the AppSprout Sites.
No guarantee of earnings: Every effort has been made to accurately represent AppSprout, its products and services and the Partner Program, and their potential. However, we are NOT responsible for any of your actions and no guarantees are made that you will achieve any results from our website, or the ideas or techniques in our videos or other marketing materials. Any examples we give of actual earnings or savings, or examples of actual results (for example, conversion rates) are factual and can be supported, but are illustrative only, and are not representations that the same results will necessarily be achieved by you. Your level of success in attaining the results claimed in our materials depends on the time you devote to your own digital business, ideas and techniques mentioned, your finances and overheads, your network, and your own knowledge and various skills. We do not purport that any of our products or services are, or should be marketed as a “Get Rich Scheme”. We only support and advocate sustainable and value-based digital and mobile marketing.
Not uninterrupted: You understand that the operation and/or use of the Links, Your site or the AppSprout Site(s) may not be uninterrupted or error free, and may have errors or omissions. You agree that AppSprout will not be liable for any interruptions or errors in using the Links.
Good faith: You must ensure at all times that you do not mislead the visitor. You shall not cause any transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, I frames, or hidden frames.
Unsolicited emails: Promoting AppSprout via unsolicited email is strictly prohibited and you agree to not reference AppSprout in any way, shape, or form, in any email that you send in which the recipient has not specifically asked to receive it. In the case of mailings which are conducted by a third party on your behalf, you assume full responsibility and you are advised to perform due diligence to ensure that the mailing list is in fact 100% opt-in. Furthermore, you MAY NOT link to AppSprout from any URL that is promoted via unsolicited email. 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 whether in New Zealand or elsewhere that govern email marketing and/or communications. You MUST comply with the Unsolicited Electronic Messages Act 2007 in New Zealand or the equivalent legislation applicable to your jurisdiction. 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. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
Prohibitions: It is strictly prohibited to:
Advertise or promote AppSprout or any AppSprout product or service using reference or claims to any income/earning potential of Partners or through use of any AppSprout product or service. Overhyped or excessive claims in particular are likely to mislead your customers and are not condoned by AppSprout.
Undertake any activities or make any representations in connection with AppSprout which could deceive or mislead any person or which might otherwise be in breach of the Fair Trading Act 1986 (or any amendment to the Act) or any other relevant legislation in the jurisdiction in which you are advertising.
Termination: You understand and agree that AppSprout may immediately terminate this Agreement (and your Partner membership) and permanently withhold all commissions due if you are found in violation of this policy.
Linking Your Site to AppSprout and Limited License Grant
AppSprout Marks: We may also provide you with banner, banner advertisements, button links, or text links to the AppSprout Site(s), containing AppSprout’s trademarks, service marks, trade names, logo and words identifying AppSprout (the “AppSprout Marks”) (each of these advertisements and links referred to in this agreement as “Links”, or individually as a “Link”), which, subject to these terms and conditions, you may display on Your Site. In utilizing the Links, you agree that you will cooperate fully with AppSprout in order to establish and maintain such Links. All Partners shall display such Links prominently throughout their Partner Site. Each Link connecting users of Your Site to AppSprout Sites will in no way alter the look, feel or functionality of AppSprout. Site. AppSprout has the right in its sole discretion to monitor Your Site at any time and from time to time to determine if you are in compliance with the terms of this Agreement. You also agree that you will substitute such images with any new images provided by AppSprout from time to time throughout the term of this Agreement.
Licence: Subject to the terms and conditions of this Agreement, AppSprout grants you a limited, non-exclusive, non-assignable, non-transferable, royalty-free license to:
Place Links on the Your Site during the term of this Agreement; and
Use the AppSprout Marks as incorporated into the Links, for the sole purpose of linking to the AppSprout Site(s).
Ownership of Links and AppSprout.com Marks
Limited Licence: You acknowledge that all right, title and interest in the Links and the AppSprout Marks are exclusively owned by AppSprout and/or its licensors, and that no right other than the limited license granted in this Agreement is provided to you. You shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights whether in New Zealand or elsewhere, in the Links or the AppSprout Marks or in any element, derivation, adaptation, variation or name of the Links or AppSprout Marks.
Use of AppSprout Marks and Links: You agree that your use of the Links and the AppSprout Marks inures to the benefit of AppSprout. All goodwill or reputation in the Links and the AppSprout Marks shall automatically vest in AppSprout when the Links are used by you pursuant to this Agreement. You shall not contest the validity of any of the AppSprout Marks or AppSprout’s exclusive ownership of them. During the term of this Agreement, you shall not adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, whether in New Zealand or elsewhere, any of the AppSprout Marks, or any word or mark confusingly similar to them in any jurisdiction.
Commission (Partner Financial Compensation)
Commission: We will pay you in United States dollars on a cost-per-action (CPA) basis. This could be a commission "per lead", "per trial", "per completed sale", based on a percentage and/or flat rate commission, as applicable to the particular program/campaign, at the rates specified inside your Partner Control Panel.
Completed Sale:A completed sale of a AppSprout product or service is achieved when one of your referrals (not being you or through your own partner account) purchases a AppSprout product or service and we receive purchase monies in cleared funds in our account and no refunds and/or chargebacks have occurred. Custom development orders are excluded from our partner program and do not qualify for any commission or financial compensation. AppSprout reserves the right to determine, in its sole discretion, whether a sale is completed for the purposes of paying any pay-per-sale commissions to Partners.
Partner Control Panel: All Affiliates that are accepted to the AppSprout Partner Program will have access to their own personal Partner Control Panel where they will find the current and accurate pay rate for the relevant program/campaign. The pay rate may be changed by AppSprout in its sole discretion, without notice and will be updated within the Partner Control Panel. The current and accurate pay rate will be displayed within the Partner Control Panel and will apply to you immediately.
You understand that AppSprout monitors all Partner registrations and subscriptions, and agree that AppSprout may immediately terminate this Agreement and permanently withhold all commissions due if you are found in violation of this policy.
AppSprout will pay all qualifying commission payments to you in United States dollars. The details of payments, including the amounts/percentages and the timing of processing and making payments, can be found inside the Partner Control Panel. Generally AppSprout processes commission payouts monthly, however custom payout requests can be arranged for qualifying Partners. All Partner payments are subject to:
A sale of an AppSprout product or service being completed to AppSprout's satisfaction (if applicable to the relevant program/campaign);
A lead or trial sign up to AppSprout being completed to AppSprout's satisfaction (if applicable to the relevant program/campaign);
You having reached the minimum sale threshold (for "per sale" commissions: currently 2 sales or as otherwise advised inside the Partner Control Panel);
You having reached the minimum lead/trial signup threshold (for "per lead" and/or "per trial" commissions: currently 100 leads/trials or as otherwise advised inside the Partner Control Panel); and
Your account not being under investigation for fraud.
Bonus Commission Payments:
AppSprout reserves the right to alter or withdraw any or all bonus commission payments at any time, by notice to Partners. Partners will also be notified of any new bonus commission policies established by AppSprout.
You may become entitled to bonus commission payments either at the time when your application is accepted by AppSprout or otherwise at the discretion of AppSprout. Any programs/campaigns which attract bonus commission payments will be notified to you by AppSprout as implemented and details of the relevant pay rates for those programs/campaigns will be appear in your Partner Control Panel.
You are responsible for any and all fees, taxes, exchange rates, surcharges and other expenses incurred in order to receive your commissions. Please check with your local banking institution, www.paypal.com or with www.stripe.com to find out if any of these apply for your area/country.
Payment will be paid via Bank Wire, Stripe, PayPal or other secure payment methods that may be accepted by AppSprout from time to time. It is your full responsibility to provide us with accurate payout details and keep them up to date at all times. By accepting this Agreement you agree that AppSprout can never be held responsible if the payment details are incorrect and payment fails to reach you even though we have sent your payment.
Tax Reporting: You will be fully responsible for paying your own taxes by the rules and laws of your country of residence. AppSprout will not deduct any tax from payouts made to you, except to the extent required by law. You should seek independent financial advice on your tax and other financial obligations.
Rules, Policies and Procedures: Any Affiliates who register for any AppSprout service or product will be deemed to be customers of AppSprout, and accordingly, all AppSprout rules, policies, and operating procedures will apply. We will determine the prices charged for the AppSprout services provided to Partners under this Partner Program in accordance with our own pricing policies. AppSprout, at its sole discretion, may change its rules, policies, operating procedures, services offered, pricing and fees at any time without prior notice.
Dispute or Discrepancy: If a dispute or a perceived discrepancy arises between the Partner and AppSprout, the Partner has 60 calendar days from the date of the purchase is made by the Partner’s referral, (the sign up date counting as day 1), to notify AppSprout of such dispute and file a claim. After the 60 day grace period has lapsed (day 61+), all disputes and or claims will be considered null and void.
AppSprout actively monitors traffic, actions, commissions and other Partner Program related activities for potential fraud. If AppSprout suspects that your account has been used in a fraudulent or non-bona fide manner, your account may be deactivated effective immediately and with no notice to you, pending further investigation. If you add actions, or inflate actions, through the use of fraudulent means of traffic generation, as determined solely by AppSprout, you will forfeit all of the payments related to that Program and your Partner account will be terminated effective immediately. AppSprout reserves sole judgment in determining fraud, and you agree to be bound by any and all such determinations as a final judgment on the matter. It is your OBLIGATION to prove to AppSprout that you have NOT engaged in fraud. AppSprout will freeze all of your commission payments until you have satisfactorily provided evidence that demonstrates to AppSprout that you have not engaged in fraud. If you are unable to provide AppSprout with satisfactory evidence that you have not engaged in fraud within seven (7) days of your commission payment(s) being frozen,” then AppSprout reserves the right to terminate your Partner account and cancel any payments due to you, at its sole discretion and without any further obligations to you.
Obligations Regarding Your Site
You are solely responsible for the development, operation, and maintenance of Your Site and for all materials and content that appear on Your Site. AppSprout will not be responsible for, and disclaims all liability for, any of the foregoing, and you agree to indemnify and hold AppSprout harmless from: all damages; claims; fees (including legal fees on a solicitor/client basis); and expenses arising from or relating to the development, operation, or maintenance of Your Site and any content displayed on Your Site including but not limited to any claim that content displayed on Your Site infringes or misappropriates any intellectual property right of a third party. You agree that:
You will, as soon as reasonably practicable, notify us in writing of any known or reasonably suspected claim;
You will immediately modify or replace the infringing material so as to avoid the infringement or alleged infringement from reoccurring.
You will, at your own expense, conduct any negotiations, proceedings and/or litigation that you deem appropriate provided that you keep us notified; and
You will not make any admission of liability or agree to any settlement or compromise in relation to a claim, without our written consent;
Term of the Agreement
The term of this Agreement begins upon AppSprout’s acceptance of your application for the Partner Program, and ends when terminated by either party in accordance with this Agreement.
Termination of the Agreement
Termination for no cause: This Agreement may be terminated by either party at any time, for any reason or no reason, upon 24 hours' notice.
Termination for cause: This Agreement may be terminated by us immediately if you breach this Agreement. Your account may be deactivated during investigation of any breach of this Agreement. If this Agreement is terminated based upon your breach, you shall not be eligible to enter into a new Partner Agreement with AppSprout, and any attempt to do so shall be null and void. Within 24 hours after termination (whether by you or AppSprout), you must remove the AppSprout Links and any other AppSprout Marks from Your Site and you must destroy or erase from computer memory or any other storage device any items you might have that contain AppSprout Links, AppSprout Marks or AppSprout Confidential Information (as defined in this Agreement). Any licences, linking or other rights granted to the Partner pursuant to this Agreement will immediately cease upon termination of this Agreement.
Temporary deactivation: AppSprout may temporarily deactivate or terminate your account (in its discretion) if:
You or your agent are responsible for the improper functioning of ad content, or if you otherwise interfere with and/or fail to maintain the tracking code;
You have a negative balance in your account;
AppSprout determines there has been fraudulent activity or a pattern of non-bona fide transactions in relation to your account;
AppSprout determines you are infringing, misusing, diluting, tarnishing or blurring AppSprout’s proprietary rights;
You begin proceedings to challenge AppSprout’s proprietary rights;
A third party disputes your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on your web site, or through any of your promotional means.
Effect of Termination: Termination from our Partner Program and termination of this Agreement, and may result in a clawback of one or more payouts. Upon termination, AppSprout will pay you any commissions you might have earned before termination (including any bonus commissions), 90 days after this Agreement is terminated. If your account has been terminated for violating our policy or is under review for fraudulent activity, any and all commissions will be permanently frozen and/or withheld.
Modification of terms and conditions
AppSprout may modify any of the terms and conditions contained in this Agreement and it will be the Partner’s full responsibility to check the terms & conditions on a regular basis. The current and accurate terms & conditions will be available on our website at all times with the Partner sign-up form. If a modification is unacceptable to you, you may terminate this Agreement by giving notice of termination to AppSprout and following the procedures in clause 12 (Termination of the Agreement). If you do not give AppSprout notice of termination in accordance with clause 12 and continue to display the Links on Your Site, then you will be deemed to have accepted the modifications. You acknowledge that by visiting the website from time to time and by using the AppSprout Partner Program, you shall become bound to the current version of the relevant terms and conditions (the “current version”) and, unless stated in the current version, all previous versions shall be superseded by the current version. You shall be responsible for reviewing the then current version each time you visit the website and/or use the AppSprout Partner Program.
Relationship of the Parties
You and AppSprout are independent contractors, and nothing in this Agreement creates any partnership, joint venture, franchise, sales representative, or employment relationship between you and AppSprout. You understand that you do not have authority to make or accept any offers or make any representations on behalf of AppSprout. You may not make any statement, whether on Your Site or otherwise, that would contradict anything in this section.
Access to Confidential Information: During the term of this Agreement, you may have access to certain Confidential Information (as defined below), you agree:
Not to disclose any Confidential Information to any third parties (other than your employees and/or consultants reasonably requiring such Confidential Information for the purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained in this Agreement) without the express prior written consent of AppSprout;
Not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement; and
To keep the Confidential Information confidential using the same degree of care you use to protect your own confidential information, as long as you use at least reasonable care.
Meaning of Confidential Information: For purposes of this Agreement, Confidential Information means any and all information in written, representational, electronic or other form relating directly or indirectly to the present or potential business, operation or financial condition of AppSprout (including, but not limited to, marketing plans, customer and supplier lists and product data) excluding any such information which at the relevant time:
is known to the public (through no act or omission of the Partner in violation of this Agreement);
is lawfully acquired by the Partner from an independent source having no obligation to AppSprout; or
was known to the Partner prior to its disclosure under this Agreement.
Guarantee and Indemnity by directors/trustees
Directors or Trustees:Where the Partner is an incorporated body or a trust, the directors or trustees of the Partner (as the case may be) from time to time (the “Covenantor(s)”) agree to provide the following guarantee:
The Covenantor(s) (jointly and severally) guarantee(s) to AppSprout the due performance by the Partner of all of its obligations under this Agreement. The Covenantor(s) agree(s) that it will cause the Partner to comply with the terms of this Agreement.
The liability of the Covenantor(s) under this guarantee constitutes a principal obligation of the Covenantor(s) and shall not be relieved or in any way affected in a manner prejudicial to AppSprout by the granting of time, waiver or forbearance to sue by AppSprout or by any act, omission, matter, circumstance or law whereby the Covenantor(s) as surety only would, but for the provisions of this clause, have been released from liability under this Agreement.
The Covenantor(s) acknowledges that the guarantee is a continuing one and AppSprout is not bound to exercise or exhaust its remedies under this Agreement before being entitled to enforce the guarantee.
The Covenantor(s) has/have read all of the terms and conditions of this Agreement and understand(s) that this clause 16 is binding upon him/her/them notwithstanding that any part of this Agreement may be found to be irregular or defective in any way.
Partner and Covenantor Indemnity: The Partner and the Covenantor(s) each agree that they shall, jointly and severally, indemnify AppSprout upon demand from time to time against all or any costs, losses (including loss of profit and full costs on a solicitor and client basis incurred by AppSprout) or expenses which AppSprout may sustain or incur as a consequence of:
Any default by the Partner under this Agreement; and/or
The occurrence or continuance of such default.
Limitation of Liability
AppSprout will not be liable for lost profits, lost business opportunities or any other indirect, special, punitive, incidental, or consequential damages arising out of, or related to, this Agreement, the Links, the AppSprout service or AppSprout Partner Program, even if AppSprout has been advised of the possibility of such damages, including loss of data or loss or interruption of services or communications. Further, AppSprout’s aggregate liability for direct damages arising under this Agreement will not exceed the amount of the total commissions paid or payable to you under this Agreement.
Governing Law: This Agreement will be governed by the laws of New Zealand, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the courts located in New Zealand and you irrevocably consent to the non-exclusive jurisdiction of such courts.
No Assignment: 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.
No waiver: Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
Amendment: You agree that AppSprout reserves the right to change and alter these terms and conditions at its sole discretion and to apply any changes or alterations retroactively as AppSprout sees fit.
Injunction: The parties acknowledge that monetary damages will not necessarily be an adequate remedy for breach of this Agreement and AppSprout may, in addition to any other legal or equitable remedies, seek an injunction, specific performance or any other legal or equitable relief against such breach or threatened breach without the necessity of posting any bond.
Invalidity: In the event that any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of this Agreement. You and AppSprout agree to negotiate in good faith or to permit a court or arbitrator to replace any provision of this Agreement held invalid, unenforceable or illegal with a valid provision that is as similar as possible in substance to the invalid, unenforceable or illegal provision.
Force Majeure: In no event shall AppSprout have any liability for any delayed performance or non-performance by AppSprout which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of AppSprout.
Clauses Surviving Termination: The provisions of clauses 7 to 12, 14 to 18 (inclusive) and any other clause which, by its nature, is intended to survive termination, shall survive termination or expiration of the Agreement.