This Partner Agreement (the “Agreement”) contains the terms and conditions that apply to your participation as a Partner (“you” or “Partner”) in the Screenly Inc (the “Company”) Partner Program.
Partner acknowledges that it may participate in the Company Partner Program only under the terms and conditions set forth below, and that subsequent to Company accepting this Agreement, Company will, in its sole discretion, determine whether or not to accept Partner into Company’s Partner Program.
By submitting an application to become a Partner, you warrant that you have read and understand this Agreement, and you agree to be bound by it.
To begin the enrollment process, you must submit a complete Partner Program application via the Company website (or 3rd party solution). We will evaluate your application and notify you of your acceptance or rejection. We reserve the right in our sole and absolute discretion to accept or reject your application for any or for no reason whatsoever. Upon notice of acceptance of your application, this Agreement shall be effective between you and the Company (“us” or “we”). If we reject your application, you will not be able to participate in the Company Partner Program.
- Definitions Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, for purposes of this Agreement, the following definitions apply:
1.1. “Advertising” or “Advertisements” means any and all banner or box-style advertisements, pop-up or pop-under placements, text links or other similar solicitations through the Internet that promote Company Products or Services and that contain a Link to the Company Site.
1.2. “Partner” means any person or entity that has submitted a Partner Program Partner application and has been accepted for participation in the Company Partner Program in accordance with the terms of this Agreement.
1.3. “Agent” is defined in Section 6.9.
1.4. “Company Brand Features” means Company trade names, trademarks, service marks and/or logos authorized by Company.
1.5. “Company Products and Services” means those proprietary products and services currently offered on the Company Site, which currently consists of Screenly, and any proprietary products or services as may be offered at a future date on the Company Site during the Term of this Agreement. “Company Products and Services” does not include products and services offered by third parties on or through the Company Site.
1.6. “Company Site” means the Company Internet site currently located at www.screenly.io, or any page, section, subsection or subdirectory thereof, and any other additional, substitute or successor site that may be designated by Company under this Agreement.
1.7. “Customer” means any person or entity who successfully purchases a Company Product or Service via the Partner.
1.8. “Intellectual Property Rights” means all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
1.9. “Link” means an embedded graphic, icon or text containing a unique hypertext pointer to the URL address for the Company Site that is embedded in an Advertisement and that identifies consumers that become Customers via the Advertisement.
1.10. “Referral Fee”, if appropriate, is defined in Section 5.
1.11. “ Partner Program” means all Partner services offered by Company under the Screenly brand including, but not limited to, Screenly subscriptions the terms and conditions of which are available at https://www.screenly.io/terms-of-service/.
1.12. “Term” is defined in Section 3.1.
1.13. “Territory” means the territory of the World
Appointment as Partner 2.1. Non-Exclusive Appointment. Company hereby appoints Partner, and Partner accepts the appointment, to act as a non-exclusive Partner of Company’s Products and Services to Customers located in the Territory during the Term solely in accordance with the terms and conditions of this Agreement and to market, promote and advertise the Product and Services directly to Customers and to solicit sales for the Product and Services. Company may in its sole discretion sell the Products to any other Person, including, retailers and Customers in and outside the Territory.
Term and Termination 3.1. The term of this Agreement (“Term”) will begin on the day of execution and will continue for a period of 3 year(s), unless and until earlier terminated as provided under this Agreement or applicable law and will end when terminated by either party in writing or by email.
3.2. The Term of this Agreement can be terminated as follows:
(i) either party may terminate this Agreement immediately by giving a 30-day written notice to the other party; or (ii) Partner agrees and acknowledges that if Partner breaches any provision of this Partner Agreement Company may immediately terminate Partner from the Partner Program. Upon termination of this Agreement, Partner must immediately remove from Partner Web site(s) and cease using any Advertising or Links. Following termination of this Partner Agreement, Partner agrees to refund any amounts that were earned from Company in breach of this Agreement. 3.3. Upon termination of this Partner Agreement shall immediately cease serving or using Advertisements.
3.4. Referral Fees or bonuses may be made only at Company’s total discretion.
3.5. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survive or that are otherwise necessary for the enforcement of this Agreement. Sections 6.6 and 9-24 of this Agreement, inclusive, and the provisions of this Agreement that impose obligations on Partner , shall survive any termination of this Agreement.
3.6. Company may terminate from its Partner Program and will forfeit all monies resulting therefrom if:
(i) Partner has become or is likely to become subject to litigation or other regulatory legal action that may adversely affect Company’s business; (ii) Partner sends unsolicited emails to Company users or provides false account information; or (iii) Partner does not comply with any provision of this Agreement. 3.7. Upon the expiration or earlier termination of this Agreement, Partner shall promptly:
(i) cease to represent itself as Company’s authorized regarding the Products and Services, and shall otherwise desist from all conduct or representations that might lead the public to believe that Partner is authorized by Company to sell the Products and Services; (ii) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Company’s Confidential Information; (iii) permanently erase all of Company’s Confidential Information from its computer systems; and (iv) certify in writing to Company that it has complied with the requirements of this Section 3.7
- Obligations of Company.
4.1. Upon acceptance of your application, Partner will have the ability to utilize resources, such as promotional materials that Screenly may develop at its discretion.
4.2. Company shall provide you with all Advertising and you shall use only Advertising provided by Company in promoting Company and/or the Company Products and Services. The Advertising available for your use will be made available to you. Company shall be solely responsible for creating and modifying all Advertising.
4.3. At its sole discretion Company shall provide training to Partners.
- While the Company will make all reasonable efforts to respect and support the relationship between the Partner and it’s customers, referral fees will not be paid if a customer, introduced by the Partner in any way to Company, decides to purchase services directly from Company.
5.1 Payment terms;
Partner will be invoiced by the Company, on 15 day terms, taking into account their Partner discount. Partner is entirely responsible for billing their own customers. Company reserves the right to suspend service should the Partner account not be kept in good standing. Partner will be invoiced quarterly, with a minimum invoice value of $250. Invoices below $250 are available on request and attract a $50 administration fee. Partner is requested to settle invoices with a credit card. Wire transfers and cheque payment is also accepted with a $50 administration fee (fee will be added to the next invoice).
5.3. Partner shall be responsible for payment of all applicable taxes, including penalties, duties and interest levied by any government in the Territory relating to it’s business with the Company; Company makes no representations in this regard. Partner agrees to indemnify and hold Company harmless against any taxes, including penalties, duties and interest levied by any government in the Territory.
- Certain Obligations of Partner 6.1. In connection with Partner’s activities authorized pursuant to this Agreement, Partner is granted a non-transferable, non-exclusive right to use the Company’s trademarks, service marks, trade names and logos (the “Trademarks”) in accordance with instructions given from time to time by the Company. Partner shall not attach any additional trademarks, service marks, or trade names to the Product and Services and shall not use Company’s Trademarks as part of Partner’s trademarks, service marks or trade names or in any other manner that would tend to imply that Partner has an affiliation with Company other than as set forth in this Agreement.
6.2. As a Partner, you are permitted to promote the Company Products and Services only through Advertisements made in the following manner:
(i) Links from your Web site to the Partner landing page on the Company Site, (ii) Links or pop-ups or pop-under placements on Web sites for which you have received express written permission from such sites to serve such links or placements and as otherwise subject to the limitations set forth in this Agreement, and (iii) emails in compliance with law and this Agreement. 6.3. All promotional activities undertaken by you to promote the Company Products or Services shall be made in accordance with prudent business practices and in accordance with all applicable laws and regulations. All information obtained at the Company Site from individuals linking to the Company Site shall be the sole and exclusive property of Company and, except as specifically provided herein, you shall neither have access to such information nor use any device, technique or software to obtain information from the Company Site.
6.4. You shall replace any Advertising displayed on your site with any new Advertising provided by Company within three (3) days after receiving notice from Company of the new Advertising. You shall not modify any Advertisement in any way.
6.5. Your site shall not in any way copy or resemble the look and feel of the Company Site, nor shall you create the impression that your site is the Company Site or a part of the Company Site. You shall not use the name of the Company or the Company Web site or any variation or misspellings thereof in your URL. You shall not frame or permit the framing of any page of the Company Site.
6.6. During and after the Term, you will not disparage Company, the Company Site or the Company Products or Services, or portray any of these in a derogatory or negative manner.
6.7. You will be solely responsible for the development, operation, and maintenance of your site and for all materials related thereto. For example, you will be solely responsible for:
6.8. This Agreement may not be assigned or otherwise transferred by you without the express written consent of Company.
6.9. You shall not provide any Advertisement to any third party, sub-affiliate or agent (“Agent”) without the written permission of Company. Any such permission must clearly identify the third party, sub-affiliate or agent and include their business name, physical address, and Web site URL. It is within the sole and exclusive discretion of Company to grant or deny any such permission and, even if granted, such permission may be revoked by Company for any reason or for no reason at any time.
6.10. Company shall not be a party to any agreement that you have with an Agent and you are not authorized to make any commitments on behalf of Company to any such Agent, including commitments regarding payment of fees to the Agent by Company or commitments for licenses to Company’s name, logo(s), any provided images, or other intellectual property. Agents are not third party beneficiaries of this Agreement with Company. Any breach by your Agents of the terms and conditions of this Agreement shall be deemed a breach of this Agreement by you and Company shall have full recourse against you with respect to such breach.
Ongoing Compliance. Partner’s continuing compliance with this Agreement is a condition of continuing participation in the Program. Company reserves the right to review and audit Partner’s Web site from time to time to determine if Partner is in continued compliance with this Agreement. Partner’s Web site must be and remain fully functional.
Adult Content and Other Unacceptable Content. Partners may not post adult-oriented content on any page on which the Advertising appears. Company considers content to be “adult” if it contains nudity, is sexually explicit, pornographic, lewd, obscene, primarily intended for sexual gratification or is otherwise inappropriate for minors, as determined in Company’s sole discretion. Partner may not post any offensive or incorporate images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise objectionable, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, as determined in Company’s sole discretion.
Use of Advertiser Content. 9.1. Partner agrees that it is sub-licensed only the exact Advertising provided by Company and only in the form and manner available from and as specified by Company. Advertiser shall have complete discretion to evaluate Partner’s use to decide whether that use violates any applicable terms and conditions.
9.2. Partner may not distribute, transfer, sub-license or otherwise use the Advertising in a manner inconsistent with this Agreement.
9.3. Partner acknowledges that Company owns and will retain all right, title, and interest in the Advertising, including, without limitation, any proprietary rights that may be developed in the future.
9.4. Partner will ensure that the presentation of the Advertising is consistent with Company’s own use of the Advertising in comparable media.
9.6. Partner will not present or use the Advertising:
(i) in a manner that could be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Company, or Company’s representatives; (ii) in a manner that is misleading, defamatory, libelous, obscene, or otherwise objectionable, in Company’s reasonable opinion; (iii) in a way that infringes, derogates, dilutes, or impairs the rights of the Advertising; or (iv) as part of a name of a product or service of a company other than Company. 9.7. Partner will make any changes to its use of the Advertising as are requested by Company.
9.8. Partner will not publish any prices, special offers or discounts in connection with the Advertising on its Web site, unless such prices, special offers or discounts were included by Company in the unmodified Advertising.
9.9. ALTERING OR ANY UNAUTHORIZED USE OF THE ADVERTISING IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION FROM THE PROGRAM. ALL RIGHTS NOT EXPRESSLY GRANTED BY COMPANY ARE RESERVED.
- Representations and Warranties 10.1. Partner representations and warranties. Partner warrants and represents that:
(i) it has full power and authority to enter into this Agreement; (ii) the performance of its obligations under this Agreement will not violate any agreements between Partner and any third parties; (iii) it will perform its obligations under this Agreement in a professional and workmanlike manner and in accordance with industry standards and (iv) performance of its obligations under this Agreement will comply with all applicable local laws, rules, and regulations in the Territory. 10.2. Company representations and warranties. Company warrants and represents that:
(i) it has full power and authority to enter into this Agreement; and (ii) it has full power to license to Partner all rights granted under this Agreement and to perform all other terms of this Agreement.
Modification. Company may modify any of the terms and conditions contained in this Agreement at any time in our sole and absolute discretion effective immediately upon notice to you. Modifications may include, but are not limited to,payment procedures, and permitted promotional activities. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE Partner PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE OR NEW AGREEMENT, AS APPLICABLE.
Disclaimer. THE COMPANY SITE AND RELATED PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, AND COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE COMPANY SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE LINKS, THE TRACKING DATA, THE OPERATION OF THE COMPANY SITE, OR ANY THIRD-PARTY’S PROCEDURES AND SYSTEMS FOR TRACKING AND REPORTING SALES GENERATED BY YOUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND COMPANY SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA. COMPANY SHALL HAVE NO LIABILITIES OR OBLIGATIONS UNDER WARRANTY OR OTHERWISE TO ANY OF YOUR CUSTOMERS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF COMPANY’S PRODUCTS OR SERVICES.
Indemnification. Partner agrees to indemnify and hold Company harmless from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with
(i) any breach by Partner of his obligations, representations and warranties under this Agreement; (ii) the negligent or intentional acts or omissions of Partner or his agents, and (iii) any representation, warranty, promise or assurance made or granted by Partner to a Customer or prospective Customer.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE WHETHER IN TORT, CONTRACT OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO ANY PROVISION OF THIS AGREEMENT OR THE PARTNER PROGRAM. WITHOUT LIMITING THE FOREGOING, COMPANY’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED $25,000.
Relationship of Parties. Partner and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Partner will have no authority to make or accept any offers or representations on Company’s behalf. Partner will not make any statement, whether on the Partner’s site or otherwise, that reasonably would contradict anything in this Section. Partner, as an independent contractor, will have sole responsibility for its expenses, taxes, employees, sales representatives and agents.
Public Announcements. Partner may not make any public announcement or press release about the terms or existence of the Agreement without Company’s prior written approval and consent.
Confidentiality. 17.1. Partner acknowledges that by reason of its relationship to Company hereunder it will have access to certain information and materials concerning Company’s business, plans, customers, technology, products and services that are confidential and of substantial value to Company, which value would be impaired if such information were disclosed to third parties. In particular, the parties hereto acknowledge that the information regarding Customers obtained during the Term and the effectiveness of Advertising hereunder are highly confidential and valuable to Company. Partner agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such information revealed to it as a result of or arising out of the relationship hereunder (other than to fulfill its obligations under this Agreement). Partner shall take every reasonable precaution to protect the confidentiality of such information.
17.2. Notwithstanding anything in this Section to the contrary, any information
(i) required by legal process to be disclosed, (ii) already in the public domain or (iii) released through no fault of the parties, will not be considered confidential information hereunder.
Reservation of Rights. Company reserves all rights other than those expressly granted in this Agreement, and no licenses are granted except as expressly set forth herein. Company retains all right, title, and interest in and to the Company Brand Features and the Company Site, together with all Intellectual Property Rights thereto.
Program Information. Company will own all right, title and interest in and to all information that is created or collected in the operation of the Company Site including, without limitation:
(i) any contact information collected from any Customers (the “Contact Information”); and (ii) any information collected about product or services sales at the Company Site generated through the Partner Link(s) (the “Sales Information”). Company may make certain Sales Information available online to from time to time. will not disclose any Sales Information to any third party without Company’s prior approval and not use such Sales Information without the approval of Company.
Order of Precedence. In the event of an inconsistency between other agreements between Company and Partner (if any), and this Agreement, this Agreement will control.
Miscellaneous. 21.1. This Agreement shall be treated as though it were executed and performed in San Francisco, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). The parties agree that upon any waiver or nullification of requirement to submit to arbitration, the proper venue for resolution of any dispute under the Agreement shall be the State and Federal courts located in the State of California.
21.2. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.
21.3. This Agreement may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger.
21.4. If any provision of this Agreement is held illegal, invalid or unenforceable for any reason, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full force and effect. If any provision of this Agreement is held illegal, invalid or unenforceable, it shall be replaced, to the extent possible, with a legal, valid, and unenforceable provision that is similar in tenor to the illegal, invalid, or unenforceable provision as is legally possible.
21.5. No waiver of any provision of this Agreement shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing.
21.6. Our rights under this Agreement shall survive any termination of this Agreement.
21.7. The title, headings and captions of this Agreement are provided for convenience only and shall have no effect on the construction of the terms of this agreement.
21.8. Notices may be made by Company by email.
21.9. Notices and other communications to you, as required or permitted to be given hereunder, that are posted on the Company Site and/or otherwise e-mailed to the e-mail address provided in your application, shall be deemed effective upon posting or e-mailing. Notice or other communications to Company shall be sent by e-mail to [email protected] and shall be deemed effective one business day after e-mailing.
21.10. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. This Agreement contains the entire agreement between Company and Partner with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between Company and Partner with respect to the subject matter hereof.
21.11. Each party hereby represents that it has the authority and capacity to enter into this Agreement, including that all individuals executing this Agreement are 18 years of age or older.
21.12. This Agreement constitutes the entire agreement between Company and Partner and govern participation in the Partner Program, superseding any prior or contemporaneous agreements between Company and Partner.
Arbitration. Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof and the enforceability of this arbitration clause), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential binding arbitration in San Francisco, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this Agreement shall be conducted under the rules of JAMS in existence at the time of the commencement of the arbitration. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Each party shall bear its own attorneys’ fees, costs, and expert witness fees. Each party shall bear one-half of the arbitration fees and arbitration costs incurred through JAMS.
Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Acknowledgement. BY APPLYING FOR THE COMPANY PARTNER PROGRAM, YOU ACKNOWLEDGE THAT YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS DOCUMENT.
Last updated: [2019-03-26]