Terms & Conditions

This Affiliate Program Agreement (the "Agreement") is made and entered into by and between Surfshark B.V., Kabelweg 57, 1014BA Amsterdam, the Netherlands ("Surfshark" or "we"), and the party submitting an application to become a Surfshark affiliate (“Affiliate”). All the invoices for the services rendered before October 2021 (if you have entered into the Agreement before 1 October 2021) should be issued to Surfshark Ltd., Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands. The terms and conditions contained in this Agreement apply to Affiliate's participation with surfshark.hasoffers.com affiliate program ("Affiliate Program"). In connection with the Affiliate Program, Affiliate may see offers (each, an “Offer”) by Surfshark that may link to surfshark.hasoffers.com or a specific website for that particular Offer ("Program Website"). Furthermore, each Offer may have additional terms that are incorporated as part of this Agreement for that particular Offer if the Affiliate chooses to participate in that Offer. By submitting an application or participating in an Offer, Affiliate expressly consents to all the terms and conditions of this Agreement and the individual accepting this Agreement represents that he or she has the authority to bind the Affiliate to the terms of this Agreement.

The following Surfshark products participate in the Affiliate Program: (I) Surfshark VPN; (II) Surfshark Antivirus; (III) Surfshark Search, (IV) Surfshark Alert, (V) Incogni. We reserve the right to include to the Affiliate Program additional products in our sole discretion anytime.

The parties agree to the terms of the Data Processing Addendum, which is incorporated into this Agreement.

1. Enrollment in the Affiliate Program

1.1. Affiliate must submit an Affiliate Program application from Surfshark’s website (https://surfshark.com/affiliate).

1.2. Affiliate must provide accurate and complete information in Affiliate's application. Affiliate must not use any aliases or other means to mask its true identity and contact information. Affiliate must provide Surfshark with any future updates regarding Affiliate’s contact details immediately after they change.

1.3. After Surfshark reviews Affiliate's application, Surfshark will notify Affiliate of Affiliate's acceptance or rejection to the Affiliate Program. Surfshark may accept or reject Affiliate's application at Surfshark's sole discretion for any reason.

2. Obligations of the Parties

2.1. Subject to Surfshark's acceptance of Affiliate as an affiliate and Affiliate's continued compliance with the terms and conditions of this Agreement, Surfshark agrees as follows:

2.1.1. Surfshark will make available to Affiliate via the Affiliate Program graphic and textual links to the Program Website and/or other creative materials (collectively, the "Links") which Affiliate may display on websites owned or controlled by Affiliate, in emails sent by Affiliate and in online advertisements (collectively, "Media"). When a Media user (“End-user”) follows the Link to the Program Website, Surfshark places a tracking cookie on that End-user’s computer or mobile device which will be used to identify that user as a referral from the Affiliate. It is forbidden for the Affiliate to: (i) use cookie stuffing techniques that set the tracking cookie without the knowledge of End-user (example: iframe); (ii) post any refunds, credits or discounts, or other similar content concerning Surfshark, unless we have given a prior written permission in each instance (Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links); (iii) alter in any way the look, feel, or functionality of each Link connecting End-user to the pertinent area of Surfshark websites. Any violations of the terms associated with Links shall constitute a material breach of this Agreement and may result in Affiliate’s termination from the Affiliate Program and/or suspension/non-payment of Commissions;

2.1.2. Surfshark will pay Affiliate for each End-user’s Qualified Action (the "Commission"). An action is considered to be the "Qualified Action" when the particular End-user satisfies all of the following criteria: (i) accesses the Program Website via the Link, where the Link is the last link to the Program Website, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person (as determined by Surfshark), (iii) is not using pre-populated fields, (iv) creates an account by completing all of the information required for such action within the time period allowed by Surfshark, (v) subscribes to paid services of Surfshark, (vi) does not cancel his subscription within the period permitted by Surfshark, and (vii) is not later determined by Surfshark to be fraudulent, incomplete, unqualified or a duplicate user. If the End-user uses another computer or mobile device to create a Surfshark account or deletes the tracking cookie before creating the account, then Surfshark shall have no liability to pay Affiliate any Commission in respect of any Surfshark services purchased by that user;

2.1.3. Surfshark will pay Affiliate any Commissions earned on the basis of Affiliate’s request (unless otherwise agreed with Affiliate), provided that the total Commissions Surfshark owes to the Affiliate is greater than $100. Accounts with a balance of less than $100 will roll over to the next month and will continue to roll over monthly until the $100 minimum is reached unless the Agreement is terminated before that. Surfshark reserves the right to charge back to Affiliate's account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. Payment of Commissions shall be considered as made when the funds are deducted from the Surfshark's payment account. Affiliate shall cover any and all costs and expenses related to the payment of Commissions. Surfshark shall not have any liability for Commissions lost due to incorrect payment details provided by the Affiliate;

2.1.4. payment for Commissions is dependent upon End-users providing such funds to Surfshark, and therefore, Affiliate agrees that Surfshark shall only be liable to Affiliate for Commissions to the extent that Surfshark has received such funds from the End-users;

2.1.5. Surfshark shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate within thirty (30) days based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Surfshark in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Surfshark in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims or challenges based upon that invoice;

2.1.6. if Affiliate has an outstanding balance due to Surfshark under this Agreement or any other agreement between Affiliate and Surfshark, whether or not related to the Affiliate Program, Affiliate agrees that Surfshark may offset any such amounts due to Surfshark from amounts payable to Affiliate under this Agreement.

2.2. Affiliate hereby agrees, undertakes, and represents that:

2.2.1. the information provided during their registration is true, not misleading, and that they have the power and authority to enter into and perform its obligations under the Agreement;

2.2.2. it owns and/or has any and all rights in the Media as contemplated by the Agreement;

2.2.3. at all times, the Media and Affiliate itself will comply with all applicable European legislation (including applicable regulations and directives), foreign, federal, state and/or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");

2.2.4. at all times, the Media and Affiliate itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;

2.2.5. it has a reasonable basis for any and all claims made within the Media and possesses appropriate documentation to substantiate such claims;

2.2.6. it shall fulfil all commitments made in the Media;

2.2.7. no Media is targeted to End-users under the age of eighteen (18);

2.2.8. prior to loading any computer program onto an individual's computer including, without limitation, programs commonly referred to as adware and/or spyware, and cookies, Affiliate shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program and/or cookies;

2.2.9. it complies with the requirements indicated in Section 16 of the Agreement;

2.2.10. it will fully comply with all Surfshark’s policies and instructions, including (without limitation) promotional rules (added as Annex 2 below), Affiliate Referral Program Terms (added as Annex 3 below), rules related to use of Surfshark’s trademarks and other promotional material as may be provided by Surfshark from time to time;

2.2.11. in utilizing the Links, it will reasonably cooperate with Surfshark in order to establish and maintain such Links. All Affiliate websites shall display the Links, including, but not limited to, graphic and/or textual images, prominently in relevant sections of their websites;

2.2.12. all tracking of Links, determinations of Qualified Actions and counting of Commissions shall be made on Surfshark’s sole discretion according to Surfshark technology. In the event that the Affiliate is also tracking Links and Qualified Actions, tracking results of Surfshark shall always prevail;

2.2.13. in the event the End-user terminates Surfshark services after the purchase (e.g., any chargebacks, refunds, cancellations), the respective amount of Affiliate’s Commission shall be cancelled and not paid. If Surfshark has already paid the relevant Commission to the Affiliate, Surfshark shall have a right to deduct the respective amount from the next payment to the same Affiliate;

2.2.14. it has sole responsibility for the development, operation, and maintenance of, and all content on or linked to, the Media;

2.2.15. all materials posted on the Media or otherwise used in connection with the Affiliate Program (i) are not illegal or infringes any person's rights, (ii) do not infringe upon the intellectual property or personal rights of any third party, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that Surfshark informs Affiliate that it considers objectionable (collectively, "Objectionable Content");

2.2.16. it will not make any representations, warranties or other statements concerning Surfshark or any of its respective products or services, except as expressly authorized herein;

2.2.17. the Media does not copy or resemble the look, feel and/or trade-dress of the Program Website or a part of the Program Website or create the impression that the Media is endorsed by Surfshark without prior written permission from Surfshark;

2.2.18. it will not disseminate information that does not correspond to reality and/or any other allegations that damages the reputation of Surfshark and each of its parents, subsidiaries, affiliates, their principals, directors, officers, partners, agents, employees, and assignees, whether or not such information/allegations relate to this Agreement or Affiliate Program;

2.2.19. it will comply with all (i) obligations, requirements, and restrictions under this Agreement and (ii) laws, rules, and regulations as they relate to its business, its Media, or its use of the Links;

2.2.20. it will comply with the terms, conditions, guidelines, and policies of any third-party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services, ad networks, etc.;

2.2.21. it will always prominently post and make available to End-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to Surfshark for use as intended by Surfshark;

2.2.22. it will always prominently post and make available to End-users any terms and conditions in connection with the Offer set forth by Surfshark, or as required by applicable laws regarding such Offers;

2.2.23. it will not place Surfshark ads on any online auction platforms (i.e. eBay, Amazon, etc.).

3. Additional program-specific terms

3.1. The following additional program-specific terms shall apply to any promotional programs set forth below:

3.1.1. Email Campaigns. Affiliate may send emails to people you know or who have given you their consent for receiving marketing information. Otherwise, do not send unsolicited marketing emails;

3.1.2. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or message or bulletin boards unless otherwise agreed by Surfshark in writing;

3.1.3. Affiliate Network Campaigns. For all Affiliates that maintain their own affiliate networks, Affiliate shall have a right to place the Links in its affiliate network (the "Affiliate Network") for access and use by those affiliates in the Affiliate Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Affiliate Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose website or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, the terms of this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Surfshark the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of Surfshark in the Affiliate Network upon written notice from Surfshark. Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.

4. Confidentiality

4.1. For purposes of the Agreement, "Confidential Information" shall mean all data and information of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

4.1.1. the Disclosing Party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;

4.1.2. specific terms of the Agreement separately agreed by the Parties; and

4.1.3. any information marked or designated by the Disclosing Party as confidential.

4.2. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company, or entity, except to those of its or it's group companies' employees and professional advisers:

4.2.1. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and

4.2.2. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein.

4.3. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:

4.3.1. is generally available to or known to the public through no wrongful act of the receiving party;

4.3.2. was independently developed by the Receiving Party without the use of Confidential Information; or

4.3.3. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.

4.4. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.

4.5. The Receiving Party is authorized to disclose Confidential Information, if so, required by a court or other competent authority based on the applicable laws. The Affiliate is obliged to inform Surfshark of such a request prior to disclosing the Confidential Information, unless this is forbidden under the generally applicable laws. Should the disclosure of confidential information be compulsory per above specified occurrence, The Receiving Party shall carefully evaluate the scope and sensitivity of requested information and shall only disclose such information which is specifically requested to provide by the relevant authority and shall withhold from disclosure of any excess information.

5. Limited License & Intellectual Property

5.1. Provided that the Affiliate complies with the terms of this Agreement and is a member in good standing of the Affiliate Program, only for the sole purpose of identifying Affiliate’s Media as a participant of the Affiliate Program, and assisting in increasing sales of Surfshark products or services through the Program Website, during the validity of the Agreement Surfshark grants Affiliate a limited, revocable, non-exclusive, non-transferable license to:

5.1.1. reproduce and make available on its Media Surfshark’s intellectual property that was made available to the Affiliate via the Affiliate Program, including, without limitation, the Links;

5.1.2. use Surfshark’s intellectual property that was made available to the Affiliate via the Affiliate Program only for creating editorial content (illustrate an article, etc.) or graphical advertisements (banners, pop-up, etc.). Subject to Clause 5.2 below, you are not allowed to modify and/or create derivative works from Surfshark’s intellectual property if this has not been pre-approved in writing by us.

5.2. Affiliate may not alter, modify, create derivative works from, distribute, publicly display, publicly perform, sublicense the Links or any Surfshark graphics, creative, copyrights or other materials owned by, or licensed to, Surfshark in any way. Except as expressly stated herein, nothing in this Agreement is intended to transfer to Affiliate any rights to any of Surfshark's trademarks, service marks, copyrights, patents, or trade secrets. Affiliate agrees that Surfshark may use any suggestion, comment or recommendation Affiliate chooses to provide to Surfshark without compensation for any purpose. All rights not expressly granted in this Agreement are reserved by Surfshark.

5.3. Without limiting the generality of the foregoing, Affiliate is imperatively prohibited, and shall not, among other things:

5.3.1. register and/or use the domain name with any suffix that consists of or contains any mark that is identical or similar to or misspellings, variations, modifications of Surfshark’s and/or its affiliated entities’ trademarks and/or any other Surfshark’s and/or its affiliated entities’ intellectual property, for any goods or services, either similar or not to Surfshark’s products or services;

5.3.2. use and/or to make bidding for any mark and/or keyword that is identical or similar to or misspellings, variations, modifications of Surfshark’s and/or its affiliated entities’ trademarks and/or any other Surfshark’s and/or its affiliated entities’ intellectual property on any referencing service or search engine (such as Google AdWords), paid or otherwise, in any metatags, advertising, search terms, code, or in a similar manner, for any goods or services, either similar or not to Surfshark’s products or services;

5.3.3. cause or create, or act in any way that causes or creates or could cause or create any initial interest confusion over the use of Surfshark’s and/or its affiliated entities’ intellectual property on the internet or in any search engine advertising;

5.3.4. take unfair advantage and/or benefit of the distinctive character or repute of Surfshark and/or its affiliated entities’ trademarks and/or other Surfshark’s and/or its affiliated entities’ intellectual property (free-riding) and/or dilute, whittle away and blur the distinctive character of Surfshark’s and/or its affiliated entities’ intellectual property and/or tarnish the repute of Surfshark’s and/or its affiliated entities’ intellectual property.

6. Remedies

6.1. In addition to any other rights and remedies available to Surfshark under this Agreement, Surfshark reserves the right to immediately delete any actions submitted through Affiliate's Links and suspend the payment or decide not to pay the Commissions if (I) Surfshark determines that Affiliate has violated this Agreement, including (without limitation) any instructions, policies and other documents provided by Surfshark, (II) Surfshark receives any complaints about Affiliate's participation in the Affiliate Program which Surfshark reasonably believes is in violation of this Agreement, (III) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or an Offer or (IV) the rate of user's charge back(s), refunds or cancellations on the Affiliate's account is unusually high and/or Surfshark suspects that the Affiliate's account is being used for fraudulent activity or in violation of this Agreement and/or applicable law. Surfshark also reserves the right to charge back paid Commissions if the conditions set up above are determined by Surfshark after the payment of such Commissions. The aforementioned suspension of payments or the decision not to pay the Commissions, or to charge back paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of the conditions set up above. In the event of a material breach of this Agreement, Surfshark reserves the right to disclose Affiliate's identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Affiliate's actions. Such suspension will be in addition to Surfshark's available rights and remedies.

7. Termination

7.1. This Agreement shall commence on the date of Surfshark's approval of Affiliate's Affiliate Program application and shall continue thereafter until terminated as provided herein. Affiliate may terminate Affiliate's participation in the Affiliate Program at any time by providing a written notice and removing all Links from Affiliate's Media and deleting all copies of the Links. Surfshark may terminate Affiliate's participation in one or more Offers or this Agreement at any time and for any reason which Surfshark deems appropriate with or without prior notice to Affiliate by disabling the Links or providing Affiliate with a written notice. Upon termination of Affiliate's participation in one or more Offers or this Agreement for any reason, Affiliate will immediately cease all use of and delete all Links and all Surfshark intellectual property, as well as cease representing itself as a Surfshark affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.

7.2. In cases indicated in Section 6 of the Agreement or if Affiliate has not earned any Commissions or has not logged into Affiliate‘s account within a six (6) months period, Surfshark may, in its sole discretion unilaterally terminate this Agreement, close the Affiliate‘s account, and withhold any unpaid Commissions. In that case Surfshark is relieved from any and all obligations to the Affiliate, including, without limitations, financial obligations, in accordance with the Agreement.

8. Anti-Spam Policy

8.1. When participating in our Affiliate Program, Affiliate may not use for selling or promoting Surfshark’s products or services any spamming methods. Affiliate must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time Surfshark may request Affiliate to submit final version of Affiliate's emails containing Links or referencing the Affiliate Program for approval by Surfshark prior to transmitting them to any third parties. In such a case the email is sent to Affiliate's Surfshark representative and upon receipt of written approval from Surfshark, Affiliate may transmit the email to third parties.

8.2. It is solely Affiliate's obligation to ensure that each email complies with the Act. Affiliate agrees not to rely upon Surfshark's approval of Affiliate's email for compliance with the Act or assert any claim that Affiliate is in compliance with the Act based upon Surfshark's approval.

9. Fraud

9.1. Affiliate is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates, or falsify information in connection with referrals through the Links or the generation of Commissions or exceed Affiliate's permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Surfshark shall make all determinations about fraudulent activity in its sole discretion.

10. Modifications

10.1. Surfshark reserves the right to modify any terms and conditions of this Agreement, as well as any of its rules, policies, instructions, which are mandatory to the Affiliate, at any time in Surfshark’s sole discretion. Such modifications shall take effect upon posting to the Program Website. Surfshark, in its sole discretion, reserves the right to notify Affiliate by email and further reserves the right to withhold notification of any changes made to this Agreement or any aforementioned documents of Surfshark. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following Surfshark‘s posting of a change notice or new Agreement on Program Website will constitute binding acceptance of the change.

10.2. In addition, Surfshark may change, suspend, or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from Surfshark to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.

11. Independent Investigation

11.1. Affiliate acknowledges that it has read this Agreement and agrees to all its terms and conditions. Affiliate has independently evaluated the desirability of participating in the Affiliate Program and each Offer and is not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.

12. Indemnification

12.1. Affiliate shall irrevocably defend, indemnify, and hold Surfshark and each of its respective employees, officers, directors, members, managers, shareholders, contractors, and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

12.1.1. Affiliate's breach of the Agreement;

12.1.2. the Media; and/or

12.1.3. any claim that Surfshark is obligated to pay any taxes in connection with Affiliate's participation hereunder.

13. Disclaimers

13.1. THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, SURFSHARK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SURFSHARK DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. SURFSHARK DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.

14. Limitation of Liability

14.1. IN NO EVENT SHALL SURFSHARK BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEBSITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF SURFSHARK. IN NO EVENT WILL SURFSHARK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SURFSHARK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SURFSHARK'S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY SURFSHARK IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.

15. Force Majeure

15.1. Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

16. Export Laws

16.1. Affiliate warrants that it (and any of its directors or officers) is not a denied party as specified in any applicable export or re-export laws or regulations or similar laws applicable in relevant jurisdictions or otherwise listed on any list of prohibited or restricted parties as administered by the Office of Foreign Control of the U.S. Department of the Treasury (“OFAC“), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury of the United Kingdom, or other relevant sanctions authority (“Sanctions Authorities”).

17. Governing Law & Miscellaneous

17.1. Affiliate may not assign, transfer, or delegate any of its rights or obligations under the Agreement without the prior written consent of Surfshark, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement or any portion hereof/thereof, to:

17.1.1. an acquirer of all or substantially all of such party's equity, business or assets;

17.1.2. a successor in interest whether by merger, reorganization or otherwise; or

17.1.3. any entity controlling or under common control with such party.

17.2. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the Netherlands.

17.3. Dispute resolution. The parties will attempt to settle any claim or controversy arising out of this Agreement through consultations in spirit of mutual cooperation. If the parties shall be unable to reach amicable settlement within 30 (thirty) days of delivery of a written notice by one party to the other party, then any disputes (including all claims, controversies, and disagreements) arising in connection with the present Agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall be composed of one arbitrator. The arbitral tribunal shall be appointed according to the list procedure. The place of arbitration shall be Rotterdam. The proceedings shall be conducted in the English language.

17.4. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.

17.5. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.

By submitting and application to Affiliate Program, Affiliate affirms and acknowledges that Affiliate has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Affiliate does not wish to be bound by this Agreement, Affiliate should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.

Last revised March 25, 2024

Annex 1

Data Processing Addendum

This Data Processing Addendum (“Addendum”) sets out the terms that apply as between Surfshark and the Affiliate when processing Personal Data in connection with the Affiliate Program. This Addendum forms part of the Affiliate Program Agreement. This Addendum is entered into as of the date of the Affiliate Program Agreement. The duration of the data processing under this Addendum is until the termination of the Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Affiliate Program Agreement (the “Agreement”) unless otherwise defined in this Addendum.

1. Definitions

(a) “controller,” “processor,” “data subject,” and “processing” (and “process”) shall have the meanings given to them in Applicable Data Protection Law;

(b) “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, EU Data Protection Law (in each case, as may be amended, superseded or replaced from time to time);

(c) “EU Data Protection Law” means: (i) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); and (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii);

(d) “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.

2. Purposes of processing

The parties acknowledge that in connection with the Affiliate Program each party may provide or make available to the other party Personal Data. Each party shall process such data: (i) for the purposes described in the Agreement (i.e. for the provision of services under the Agreement); and/or (ii) as may otherwise be permitted under Applicable Data Protection Law (i.e. for record keeping, defending the rights and interests of parties in case of a dispute).

3. Relationship of the parties

Each party will process 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, Surfshark shall be an independent controller of any Personal Data that it receives or shares with Affiliate in connection with the Affiliate Program.

4. Categories of data subjects and types of Personal Data

4.1. Affiliate may submit to Surfshark Personal Data which may include, but is not limited to, Personal Data relating to the following categories of data subjects:

a) employees, agents, advisors, freelancers (who are natural persons) of Affiliate; and/or

b) end-users.

4.2. Affiliate may submit to Surfshark Personal Data, which may include, but is not limited to:

a) contacts, financial information of the employees, agents, advisors, freelancers of Affiliate;

b) certain information (such as IP address, cookie information and device identifier) about end-users.

4.3. Affiliate shall not send Surfshark any Sensitive Personal Data (as defined in the Applicable Data Protection Law).

5. 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, the Affiliate shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair, and transparent.

6. International transfers

Where Applicable Data Protection Law in the European Economic Area (“EEA”) applies to Personal Data, neither party shall process any Personal Data (nor permit any Personal Data to be processed) in a territory outside of the EEA, unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent Personal Data is transferred to a territory outside the EEA that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law) by either party, parties agree to abide by and process such Personal Data in accordance with the Standard Contractual Clauses which are provided below and are an integral part of these Terms & Conditions.

7. Obligations of the parties

7.1. In relation to this Addendum, each party shall implement and maintain all appropriate technical and organizational measures to protect any Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access and to preserve the security and confidentiality of such Personal Data.

7.2. In relation to this Addendum, each party shall notify the other party without undue delay on becoming aware of any breach of EU Data Protection Law/Applicable Data Protection Law.

7.3. In relation to this Addendum, Affiliate shall comply with all the Applicable Data Protection Law regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the GDPR.

7.4. Affiliate agrees to promptly assist Surfshark in complying with any data subject rights requests under the GDPR (or other Applicable Data Protection Law) in relation to this Addendum. Affiliate further agrees to promptly assist Surfshark in complying with any duties to cooperate with supervisory data protection authorities under Applicable Data Protection Law.

8. Other terms

8.1. If there is a conflict between the Agreement and this Addendum, the terms of this Addendum will control.

8.2. Each party shall perform its obligations under this Addendum at its own cost.

Standard contractual clauses

Section I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is to ensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’); and

(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’), have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, including enforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation (EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to which the data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, as third-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3, Clause 6, Clause 7;

(ii) Clause 8: Clause 8.5 (e) and Clause 8.9(b);

(iii) Clause 12: Clause 12(a) and (d);

(iv) Clause 13;

(v) Clause 15.1(c), (d) and (e);

(vi) Clause 16(e);

(vii) Clause 18: Clause 18(a) and (b).

(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.

Clause 4

Interpretation

(a) Where these Clauses use terms that are defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation.

(b) These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way that conflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5

Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 6

Description of the transfer(s)

The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.

Clause 7

Docking clause

(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.

(b) Once it has completed the Appendix and signed Annex I.A, the acceding entity shall become a Party to these Clauses and have the rights and obligations of a data exporter or data importer in accordance with its designation in Annex I.A.

(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.

Section II

Obligations of the parties

Clause 8

Data protection safeguards

The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.

8.1. Purpose limitation

The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B. It may only process the personal data for another purpose:

(i) where it has obtained the data subject’s prior consent;

(ii) where necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or

(iii) where necessary in order to protect the vital interests of the data subject or of another natural person.

8.2. Transparency

(a) In order to enable data subjects to effectively exercise their rights pursuant to Clause 10, the data importer shall inform them, either directly or through the data exporter:

(i) of its identity and contact details;

(ii) of the categories of personal data processed;

(iii) of the right to obtain a copy of these Clauses

(iv) where it intends to onward transfer the personal data to any third party/ies, of the recipient or categories of recipients (as appropriate with a view to providing meaningful information), the purpose of such onward transfer and the ground therefore pursuant to Clause 8.7.

(b) Paragraph (a) shall not apply where the data subject already has the information, including when such information has already been provided by the data exporter, or providing the information proves impossible or would involve a disproportionate effort for the data importer. In the latter case, the data importer shall, to the extent possible, make the information publicly available.

(c) On request, the Parties shall make a copy of these Clauses, including the Appendix as completed by them, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including personal data, the Parties may redact part of the text of the Appendix prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information.

(d) Paragraphs (a) to (c) are without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.

8.3. Accuracy and data minimisation

(a) Each Party shall ensure that the personal data is accurate and, where necessary, kept up to date. The data importer shall take every reasonable step to ensure that personal data that is inaccurate, having regard to the purpose(s) of processing, is erased or rectified without delay.

(b) If one of the Parties becomes aware that the personal data it has transferred or received is inaccurate, or has become outdated, it shall inform the other Party without undue delay.

(c) The data importer shall ensure that the personal data is adequate, relevant, and limited to what is necessary in relation to the purpose(s) of processing.

8.4. Storage limitation

The data importer shall retain the personal data for no longer than necessary for the purpose(s) for which it is processed. It shall put in place appropriate technical or organisational measures to ensure compliance with this obligation, including erasure or anonymisation of the data and all back-ups at the end of the retention period.

8.5. Security of processing

(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the personal data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access (hereinafter ‘personal data breach’). In assessing the appropriate level of security, they shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subject. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner.

(b) The Parties have agreed on the technical and organisational measures set out in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.

(c) The data importer shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

(d) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the personal data breach, including measures to mitigate its possible adverse effects.

(e) In case of a personal data breach that is likely to result in a risk to the rights and freedoms of natural persons, the data importer shall without undue delay notify both the data exporter and the competent supervisory authority pursuant to Clause 13. Such notification shall contain i) a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), ii) its likely consequences, iii) the measures taken or proposed to address the breach, and iv) the details of a contact point from whom more information can be obtained. To the extent it is not possible for the data importer to provide all the information at the same time, it may do so in phases without undue further delay.

(f) In case of a personal data breach that is likely to result in a high risk to the rights and freedoms of natural persons, the data importer shall also notify without undue delay the data subjects concerned of the personal data breach and its nature, if necessary in cooperation with the data exporter, together with the information referred to in paragraph (e), points ii) to iv), unless the data importer has implemented measures to significantly reduce the risk to the rights or freedoms of natural persons, or notification would involve disproportionate efforts. In the latter case, the data importer shall instead issue a public communication or take a similar measure to inform the public of the personal data breach.

(g) The data importer shall document all relevant facts relating to the personal data breach, including its effects and any remedial action taken, and keep a record thereof.

8.6. Sensitive data

Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions or offences (hereinafter ‘sensitive data’), the data importer shall apply specific restrictions and/or additional safeguards adapted to the specific nature of the data and the risks involved. This may include restricting the personnel permitted to access the personal data, additional security measures (such as pseudonymisation) and/or additional restrictions with respect to further disclosure.

8.7. Onward transfers

The data importer shall not disclose the personal data to a third party located outside the European Union (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) unless the third party is or agrees to be bound by these Clauses, under the appropriate Module. Otherwise, an onward transfer by the data importer may only take place if:

(i) it is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;

(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 of Regulation (EU) 2016/679 with respect to the processing in question;

(iii) the third party enters into a binding instrument with the data importer ensuring the same level of data protection as under these Clauses, and the data importer provides a copy of these safeguards to the data exporter;

(iv) it is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings;

(v) it is necessary in order to protect the vital interests of the data subject or of another natural person; or

(vi) where none of the other conditions apply, the data importer has obtained the explicit consent of the data subject for an onward transfer in a specific situation, after having informed him/her of its purpose(s), the identity of the recipient and the possible risks of such transfer to him/her due to the lack of appropriate data protection safeguards. In this case, the data importer shall inform the data exporter and, at the request of the latter, shall transmit to it a copy of the information provided to the data subject.

Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.

8.8. Processing under the authority of the data importer

The data importer shall ensure that any person acting under its authority, including a processor, processes the data only on its instructions.

8.9. Documentation and compliance.

(a) Each Party shall be able to demonstrate compliance with its obligations under these Clauses. In particular, the data importer shall keep appropriate documentation of the processing activities carried out under its responsibility.

(b) The data importer shall make such documentation available to the competent supervisory authority on request.

Clause 9

Use of sub-processors

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Clause 10

Data subject rights

(a) The data importer, where relevant with the assistance of the data exporter, shall deal with any enquiries and requests it receives from a data subject relating to the processing of his/her personal data and the exercise of his/her rights under these Clauses without undue delay and at the latest within one month of the receipt of the enquiry or request. The data importer shall take appropriate measures to facilitate such enquiries, requests and the exercise of data subject rights. Any information provided to the data subject shall be in an intelligible and easily accessible form, using clear and plain language.

(b) In particular, upon request by the data subject the data importer shall, free of charge:

(i) provide confirmation to the data subject as to whether personal data concerning him/her is being processed and, where this is the case, a copy of the data relating to him/her and the information in Annex I; if personal data has been or will be onward transferred, provide information on recipients or categories of recipients (as appropriate with a view to providing meaningful information) to which the personal data has been or will be onward transferred, the purpose of such onward transfers and their ground pursuant to Clause 8.7; and provide information on the right to lodge a complaint with a supervisory authority in accordance with Clause 12(c)(i);

(ii) rectify inaccurate or incomplete data concerning the data subject;

(iii) erase personal data concerning the data subject if such data is being or has been processed in violation of any of these Clauses ensuring third-party beneficiary rights, or if the data subject withdraws the consent on which the processing is based.

(c) Where the data importer processes the personal data for direct marketing purposes, it shall cease processing for such purposes if the data subject objects to it.

(d) The data importer shall not make a decision based solely on the automated processing of the personal data transferred (hereinafter ‘automated decision’), which would produce legal effects concerning the data subject or similarly significantly affect him/her, unless with the explicit consent of the data subject or if authorised to do so under the laws of the country of destination, provided that such laws lays down suitable measures to safeguard the data subject’s rights and legitimate interests. In this case, the data importer shall, where necessary in cooperation with the data exporter:

(i) inform the data subject about the envisaged automated decision, the envisaged consequences and the logic involved; and

(ii) implement suitable safeguards, at least by enabling the data subject to contest the decision, express his/her point of view and obtain review by a human being.

(e) Where requests from a data subject are excessive, in particular because of their repetitive character, the data importer may either charge a reasonable fee taking into account the administrative costs of granting the request or refuse to act on the request.

(f) The data importer may refuse a data subject’s request if such refusal is allowed under the laws of the country of destination and is necessary and proportionate in a democratic society to protect one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679.

(g) If the data importer intends to refuse a data subject’s request, it shall inform the data subject of the reasons for the refusal and the possibility of lodging a complaint with the competent supervisory authority and/or seeking judicial redress.

Clause 11

Redress

(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.

(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.

(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:

(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;

(ii) refer the dispute to the competent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.

(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.

(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.

Clause 12

Liability

(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.

(b) Each Party shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages that the Party causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter under Regulation (EU) 2016/679.

(c) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.

(d) The Parties agree that if one Party is held liable under paragraph (c), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.

(e) The data importer may not invoke the conduct of a processor or sub-processor to avoid its own liability.

Clause 13

Supervision

(a) Where the data exporter is established in an EU Member State: The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.

(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

Section III

Local laws and obligations in case of access by public authorities

Clause 14

Local laws and practices affecting compliance with the Clauses

(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.

(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:

(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;

(ii) the laws and practices of the third country of destination – including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards;

(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.

(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.

(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).

(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15

Obligations of the data importer in case of access by public authorities

15.1. Notification

(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:

(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or

(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.

(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.

(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).

(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request.

(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2. Review of legality and data minimisation

(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).

(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.

(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

Section IV

Final provisions

Clause 16

Non-compliance with the Clauses and termination

(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.

(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:

(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;

(ii) the data importer is in substantial or persistent breach of these Clauses; or

(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.

In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.

(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.

(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17

Governing law

These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of the Netherlands.

Clause 18

Choice of forum and jurisdiction

(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.

(b) The Parties agree that those shall be the courts of The Netherlands.

(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.

(d) The Parties agree to submit themselves to the jurisdiction of such courts.

Annex I

A. List of parties

Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]

    1. Surfshark B.V.
  • Address: Kabelweg 57, 1014BA Amsterdam, the Netherlands
  • Contact person’s name, position, and contact details: Representative of Surfshark B.V. [email protected]
  • Activities relevant to the data transferred under these Clauses: Transmission, usage, storage
  • Role (controller/processor): controller
  • Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
    1. Affiliate
  • Activities relevant to the data transferred under these Clauses: Transmission, usage, storage
  • Role (controller/processor): controller

B. Description of transfer

Categories of data subjects whose personal data is transferred
See section 4 of the Data Processing Addendum.
Categories of personal data transferred
See section 4 of the Data Processing Addendum.

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

  • N/A
  • The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
  • On a continuous basis.
  • Nature of the processing
  • Transmission, usage, storage
  • Purpose(s) of the data transfer and further processing
  • Performance of the Affiliate Program Agreement.
  • The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
  • As long as the Affiliate Program Agreement is in force.
  • For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing
  • N/A

C. Competent supervisory authority

Identify the competent supervisory authority/ies in accordance with Clause 13
Supervisory authority in the Netherlands is the Autoriteit Persoonsgegevens.

Annex II

TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA

EXPLANATORY NOTE:
The technical and organisational measures must be described in specific (and not generic) terms. See also the general comment on the first page of the Appendix, in particular on the need to clearly indicate which measures apply to each transfer/set of transfers.

Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons:

  • Measures of pseudonymisation and encryption of personal data
  • Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
  • Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
  • Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
  • Measures for user identification and authorisation
  • Measures for the protection of data during transmission
  • Measures for the protection of data during storage
  • Measures for ensuring physical security of locations at which personal data are processed
  • Measures for ensuring events logging
  • Measures for ensuring system configuration, including default configuration
  • Measures for internal IT and IT security governance and management
  • Measures for certification/assurance of processes and products
  • Measures for ensuring data minimisation
  • Measures for ensuring data quality
  • Measures for ensuring limited data retention
  • Measures for ensuring accountability
  • Measures for allowing data portability and ensuring erasure

For transfers to (sub-) processors, also describe the specific technical and organisational measures to be taken by the (sub-) processor to be able to provide assistance to the controller and, for transfers from a processor to a sub-processor, to the data exporter.

Annex 2

Promotional rules for Surfshark affiliates ("Promotional rules")

You are welcome to put banners on websites, text links in forum signatures and so on. Please pay attention - it is strictly prohibited to use some specific promotion ways. If you use forbidden promotion methods, you will not be entitled and will not be paid any commission and your affiliate account will be terminated.

These Promotional rules are applicable for all Surfshark products participating in the Affiliate Program: (I) Surfshark VPN; (II) Surfshark Antivirus; (III) Surfshark Search, (IV Surfshark Alert, (V) Incogni ("Surfshark Products"). We reserve the right to include to the Affiliate Program additional products in our sole discretion anytime.

We do not allow:

1.1. Usage of banned keywords: bidding on any online advertising system (such as Google AdWords) for the following keywords and any variation or misspellings indicated in Guidelines on setting up negative keywords for PPC campaigns thereof. Make sure to include most common misspellings indicated in Guidelines on setting up negative keywords for PPC campaigns thereof to the list of negative keywords. If you’re not sure how to properly set up negative keyword settings, make sure to read our guidelines at the end of this document;

1.2. SPAM / unsolicited email promotion. However, you may send emails to people who have given you permission to send them marketing emails for products and services similar to services offered by Surfshark;

1.3. Pop-up / under advertising (unless it is agreed upon with your account manager);

1.4. Comment SPAM: posting referral links on blogs, social networks, message boards and forums in cases where the discussion or content is not related to the services offered by Surfshark. However, you may advertise your referral link on websites which are discussing VPN / proxy services;

1.5. Automated bots to post comments containing your affiliate link;

1.6. Black Hat techniques: using “Black hat” SEO marketing on your websites, such as keyword stuffing, invisible text, doorway pages, etc.;

1.7. Cookie stuffing techniques. You are not allowed to use cookie stuffing techniques that set the affiliate cookies without the referred visitor’s knowledge or generate hidden forced clicks of your affiliate links (e.g. via iframe, image, popup, javascript, flash-based cooking stuffing, etc.);

1.8. Offering incentives to users such as cash back or other rewards, except with a prior explicit written consent of Surfshark;

1.9. Use of materials which infringe any intellectual property rights, including the use of our or our affiliated entities‘ Trademarks (e.g. "Surfshark", „Incogni“ and other trademarks registered by Surfshark or its affiliated entities‘) in the domain name. You may use our Trademarks only to the extent required to establish links and perform your obligations as an Affiliate;

1.10. You may not place your affiliate links on any website which contains content which is:

1.10.1. unlawful, harmful, threatening or otherwise objectionable;

1.10.2. violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;

1.10.3. promotes or supports gambling or sweepstakes contests;

1.10.4. facilitates or promotes illegal file sharing, copyright infringement or computer hacking;

1.10.5. facilitates or promotes any other criminal activity or breach of law;

1.10.6. you may not use your affiliate link to order Subscriptions for yourself or any other type of illegal marketing.

If you have any doubts if your promotion methods and material is in line with our policies - please contact your account manager for advice. Failure to comply with Promotion rules could result in your removal from the Surfshark affiliate program as well as the cancellation of all commissions due to you. In the event of any chargeback(s), refunds or cancellations by customers referred by you, your commission shall be canceled. If we have already paid the relevant commission to you, we shall deduct that amount from our next payment to you. Refunds will be made to customers in accordance with our Refund Policy or at our sole discretion. Where the rate of chargeback(s), refunds or cancellations on your account is unusually high or we suspect your affiliate account is being used for fraudulent activity, we reserve the right to place restrictions on your account, including but not limited to, suspending your account and retaining all sums within the account as well as commencing a full investigation. You give us your authorization to inform the appropriate authorities or third parties of any fraud or suspected fraud and only once we are satisfied that the matter is resolved shall we remove any restrictions on your account.

Guidelines on setting up negative keywords for PPC campaigns

Google Ads

Step 1:

A screenshot of the Google Ads page, with sections Negative keyword lists and Tools & Settings highlighted in red

Step 2:

A screenshot of the Google Ads page, with the big plus sign highlighted in red

Step 3:
Make sure to add the list of negative keywords and save changes -https://docs.google.com/spreadsheets/d/1C5pQfMoDT0DZPc66RgWCEpaCBtzFQsxW/edit#usp=sharing&ouid=107434466329701188120&rtpof=true&sd=true

Step 4:

A screenshot of the Google Ads page, with the section Apply to Campaigns highlighted in red

Bing

Step 1:

A screenshot of the Microsoft Advertising page, with the section Negative keyword lists highlighted in red

Step 2:

A screenshot of the Negative keyword lists page, with the button Create negative keyword list highlighted in red

Step 3:
Add the list of negative keywords and save changes - https://docs.google.com/spreadsheets/d/1C5pQfMoDT0DZPc66RgWCEpaCBtzFQsxW/edit#gid=1822061621

Annex 3

Affiliate Referral Program Terms

By referring new affiliates to Surfshark, you have the opportunity to earn commissions based on their performance. Please review the following terms that govern Surfshark Affiliate Referral Program together with the existing Surfshark Affiliate Program Agreement (the “Agreement”). These Affiliate Referral Program Terms are an integral part of the Agreement and should be read in conjunction with it.

1. Program Overview

1.1. The Affiliate Referral Program allows affiliates registered with the Surfshark Affiliate program (https://surfshark.com/affiliate) to refer new affiliates to Surfshark and earn the commission based on the performance of new affiliates.

1.2. The referral process takes place through the TUNE platform in the “Referral Report” section where the referral link is displayed on every Surfshark affiliates’ TUNE platform account.

1.3. To participate in the Surfshark Affiliate Referral Program you shall share the referral link provided on your Surfshark TUNE platform account with a potential new affiliate. The referral link will direct the potential new affiliate to https://surfshark.hasoffers.com/signup, where they can register to Surfshark Affiliate program.

1.4. As a participant in Surfshark Affiliate Referral Program, you acknowledge and agree that the Promotional Rules added as Annex 2 to the Agreement shall apply to the Affiliate Referral Program. By participating in the Affiliate Referral Program, you commit to abide by these rules, ensuring fair, ethical, and transparent practices when referring new affiliates to Surfshark including when you share the referral link.

1.5. Participants in the Affiliate Referral Program are strictly prohibited to invite affiliated entities (including, without limitation, their parent or subsidiary companies, other companies which they control or which control them (directly or indirectly), as well as companies under common control) as potential new affiliates. Any attempt to invite affiliated entities as potential new affiliates shall be considered a breach of these Affiliate Referral Program Terms.

1.6. After your referred affiliate is approved by Surfshark as indicated in Section 2 of these Affiliate Referral Program Terms you will be eligible for commission according to rules indicated in Section 3 of these Terms.

2. Referral Approval

2.1. We reserve the right to approve or deny any referred new affiliate at our sole discretion.

2.2. Upon review, if the referred new affiliate is approved, it will become part of Surfshark Affiliate program.

2.3. If the referred new affiliate is not approved, you will not be eligible for any commissions related to that affiliate.

3. Commission and payout terms

3.1. The commission amount earned from the Affiliate Referral Program is counted together with the commission earned from the Surfshark Affiliate Program and is specified in your Surfshark Tune account.

3.2. Surfshark will pay Affiliate Referral Program commissions solely based on the new affiliate’s pay-out approved by Surfshark and collected from the Qualified Actions generated by your referred new affiliates as indicated in the Agreement. No recurring sales or subsequent transactions generated by your referred new affiliates will be eligible for commission payment.

3.3. The Affiliate Referral Program commission for the referred new affiliate may vary and can be customized unilaterally by Surfshark at any time.

3.4. Surfshark will pay you the commissions earned on the basis of your request, provided that the total commissions (earned together from Affiliate Referral Program and Surfshark Affiliate Program) Surfshark owes you is greater than $100. Accounts with a balance of less than $100 will roll over to the next month and will continue to roll over monthly until the $100 minimum is reached, unless your affiliate agreement is terminated before that. Payment of commissions shall be considered as made when the funds are deducted from our payment account. You shall cover any and all costs and expenses related to the payment of commissions. We shall not have any liability for commissions lost due to incorrect payment details provided by you.

3.5. Commissions may be requested by you only after the 30-day money back guarantee period (or any other period granting the end-user a right to terminate their agreement with Surfshark for convenience and receive a full refund, as may be applicable at that moment) has elapsed from the date of the specific Qualified Action. This requirement allows adequate time for verifying and confirming the eligibility of the Qualified Actions before initiating the commissions payment process. Once you submit your request, we will generate an invoice on your behalf for all payable commissions under the Affiliate Referral Program Terms, and the payment will be remitted to you within thirty (30) days from the date of that invoice.

3.6. The commission will be paid according to the agreed-upon payment method specified in your Surfshark Tune account.

Surfshark reserve the right to modify or terminate the Affiliate Referral Program at any time, without prior notice, and to take appropriate action, including the termination of your affiliate account, in case of any violation or abuse of this program.

If you have any questions or concerns regarding our Affiliate Referral Program or these terms and conditions, please contact your Affiliate Account Manager in your Surfshark Tune account.