Rignite Affiliate Agreement
This Rignite Affiliate Agreement (“Agreement”) contains the terms and conditions between Rignite Inc., a California corporation (“Rignite”), and the individual or organization (“You”, “Your” and “Yours”) participating in Rignite’s Affiliate Program (the “Program”) as described on our website (the “Rignite Website”).
1. Enrollment in the Program. To enroll in the Program, you must submit your contact information to Rignite and indicate your interest in joining the Program. By submitting your contact information, you agree to be bound by the terms and conditions contained in this Agreement. The “Effective Date” of this Agreement shall be the date on which You are notified by Rignite of acceptance into the Program. By entering into this Agreement, in addition to transactions entered into by You on Your own behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your agent.
2. Services to be Provided to You. Throughout the term of this Agreement, Rignite will provide You with certain services (“Rignite Affiliate Services”), that will enable You to offer to customers (“End Users”) through a website or other application operated by You (“Your Website”), services offered by Rignite on the Rignite Website (“End User Services”). The specific form and function of Rignite Affiliate Services will be determined by Rignite in its sole discretion but shall generally include the tracking and reporting of certain End User activity. Rignite will track your End User referrals using a reasonable method determined in its sole discretion. Such methods may include (i) the use of a special tracking URL provided to you by Rignite which will place a cookie on the End User’s system or (ii) the use of a customized coupon code provided to you by Rignite that End Users must use when subscribing to the End User Services. Rignite will provide you with at least 30 days’ notice should your coupon code be expiring and no longer be accepted by our payment system. Also, if the End User does not accept cookies, or deletes the cookie prior to registration or payment, Rignite will not be able to track the End User referral and no commission will be paid to You.
Rignite reserves the right to modify Rignite Affiliate Services from time to time, in its sole discretion. To the extent Rignite provides usernames or passwords to You in connection with Rignite Affiliate Services, You shall be responsible for all loss, theft or unauthorized disclosure of Your username or password used to access Rignite Affiliate Services. You shall provide Rignite with prompt written notification of any known or suspected unauthorized use of Your username or password.
3. End User Services. Each End User must properly complete the application forms designated by Rignite and agree and adhere to all of the terms, conditions and policies of use for End User Services as established by Rignite from time to time, in its sole discretion, before Rignite will be obligated to provide End User Services to that End User. Rignite reserves the right to (i) not accept an End User’s registration/subscription or (ii) immediately terminate any End User that fails to adhere to the terms, conditions and policies of use for End User Services or under any other circumstances allowed pursuant to Rignite’ agreement with that End User.
4. Licenses. Rignite hereby grants to You a non-exclusive, revocable, non-transferable (except as expressly provided in this Agreement), non-sublicenseable, royalty-free license to use and display the trademarks, service marks and logos provided to You directly by Rignite (“Rignite Trademarks”) on Your Website for the sole purpose of promoting End User Services as described in Section 2. All uses of Rignite Trademarks shall be subject to Rignite’s prior written approval. You shall not modify the Rignite Trademarks and shall comply with all reasonable guidelines for the Rignite Trademarks that Rignite may from time to time provide. Except for the license set forth in this Section 4(a), You have no right, title or interest in any of the Rignite Trademarks or any other intellectual or proprietary rights of Rignite, including without limitation its copyrights, patents and trade secrets, and all use of the Rignite Trademarks shall inure to the benefit of Rignite. The foregoing license shall terminate automatically upon the termination of this Agreement.
5. Your Responsibilities.
(a) You acknowledge and agree that, when marketing End User Services, You must do so in a manner that Rignite, in its sole discretion, deems acceptable, including without limitation not misrepresenting the nature of End User Services and avoiding the use of adware, spyware, browser helper objects, hijackers, viruses and trojans. You further agree to maintain a privacy policy, conspicuously posted on Your Website, that complies with all applicable laws and regulations, is commercially reasonable based on prevailing industry standards, and fully and accurately discloses Your collection and use of customer information.
(b) You are solely responsible for ensuring that all of the content contained on Your Website (“Your Content”) complies with all applicable laws and regulations and does not infringe or violate any right or policy/use guidelines of any third party. Rignite may immediately cease performing under this Agreement, or may terminate this Agreement, if, in its sole discretion, it believes that any hypertext links from Your Website to third party websites, or any of Your Content, violates any Rignite policy (including any website privacy policy and/or terms of service), any law or regulation, or any third party rights, or may otherwise expose Rignite to civil or criminal liability or otherwise may damage the business or reputation of Rignite or any Rignite Affiliate (as defined in Section 5(d) below).
(c) You agree to comply with all laws and regulations governing the practice of email communications, including without limitation the CAN SPAM Act of 2003 or any successor legislation. Rignite does not condone “spamming” activity. Should you market End User Services via email marketing, you are obligated to abide by all applicable laws and regulations and industry best practices, including without limitation providing customers with the ability to opt-out of further marketing communications from You. Further, You agree to include the following disclaimer on each such email: “This email was not sent by or on behalf of Rignite Inc., and Rignite Inc. shall not be responsible or liable to any party for its content or method of distribution.”
(d) In regards to any advertising that You may do to promote End User Services, You agree that (i) You will comply with all applicable laws and regulations relating to Your promotional activities, (ii) should You register keywords for inclusion on search engine listings, You will not register any Rignite Trademarks (or marks that are similar or confusing with the Rignite Trademarks) or any trademarks or service marks of any entity controlling, controlled by or under common control of Rignite (each a “Rignite Affiliate”), (iii) You will not register any domains that are identical or similar to (including misspellings of) any Rignite Trademarks or any trademarks or services marks of any Rignite Affiliate or any domains similar to (including misspellings of) those registered by Rignite or any Rignite Affiliate, and (iv) You will not position Yourself in any ad as an official, authorized, certified or sponsored partner of Rignite.
(e) Rignite may be obligated by law to obtain tax information from You, including a completed IRS Form W-9. If Rignite requests tax information from You and You do not provide it, Rignite may (in addition to any other rights or remedies available) withhold Your Fees until You provide this information or otherwise satisfy to Rignite that You are not a person from whom Rignite is required to obtain tax information.
6. Fees.
(a) Rignite shall pay You a fee (the “Fee”) for each new End User whose registration for End User Services originated from Your Website and who remit full payment to Rignite for the End User Services purchased. The Fee shall be determined by the fee structure provided to You by Rignite upon your acceptance into the Program. Rignite reserves the right to reduce, cancel or offset Fees in connection with any refunds, returned checks, fraudulent transactions and credit card charge backs. Subscription payments for the End User Services must be received within 60 days from the date the End User visits the Rignite Website through Your Website in order for You to be eligible to receive the applicable Fee. You acknowledge that Rignite reserves the right to adjust the rates and calculation methodology of the Fees from time to time, with or without notice to You.
(b) Rignite shall pay You the Fees via Paypal (or such other payment processor/vendor chosen by Rignite) or check within thirty (30) days after the end of each calendar quarter during which such Fees were earned; provided, however, if the Fees earned in a given quarter do not exceed One Hundred Dollars ($100.00), then You shall not be entitled to receive such Fees generated during such quarter and such balance will be carried over to the following quarter(s) until Your aggregate unpaid Fees exceed such amount. You agree and acknowledge that any unpaid Fee balance under $100.00 may be forfeited if Rignite terminates this Agreement pursuant to an Inactive Affiliate Termination as defined in Section 9. Any payment of the Fees due hereunder is contingent upon You providing Rignite true and correct information (such as contact information) when you enroll in the Program and keeping that information up-to-date. You acknowledge and agree that the data maintained by Rignite shall govern the computation of any Fee due to You.
7. End User Data. In regards to the End User Services (and not any other services that You may provide to your customers outside the scope of this Agreement), all End Users shall be customers solely of Rignite, Rignite shall own all rights to all customer information and related data collected in connection with such customer relationship (the “End User Data”), and You shall not make any representations to the contrary. In addition, You shall not: (a) disclose, display, sell, lease or otherwise transfer any End User Data collected from or provided by End Users that click on, register for or otherwise indicate interest in any End User Services, in whole or in part, in any form (including without limitation reports, analyses, or compilations), to any third party in such a manner as to allow a third party to identify or target such End Users as potential or existing Rignite customers; and (b) use any End User Data to target advertising or other marketing communications to potential or existing End Users, whether for You or on behalf of a third party. Without limiting the generality of the foregoing, You agree to not specifically solicit End Users for the purpose of inducing them to switch to a competitor of Rignite or any Rignite Affiliate.
8. Representations and Warranties.
(a) You represent and warrant that You have the power and authority to enter into and perform Your obligations under this Agreement and that the act of You entering into this Agreement, and the performance of Your obligations hereunder, do not and will not violate any applicable law or regulation or violate or infringe upon any proprietary, contract, moral, privacy or any other right of a third party. If You are an individual, You represent and warrant that You were at least eighteen (18) years of age on the Effective Date of this Agreement.
(b) RIGNITE AFFILIATE SERVICES AND END USER SERVICES ARE PROVIDED “AS IS”, AND RIGNITE MAKES NO, AND HEREBY SPECIFICALLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RIGNITE DOES NOT MAKE ANY REPRESENTATION THAT RIGNITE AFFILIATE SERVICES OR END USER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND RIGNITE SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTIONS, ERRORS OR DOWNTIME.
9. Term and Termination. The term of this Agreement will commence on the Effective Date and will continue indefinitely thereafter until terminated pursuant to this Section 9 or as otherwise expressly provided in this Agreement. Either party may terminate this Agreement at any time, without cause, upon thirty (30) days’ prior written notice to the other party. In addition, Rignite may immediately terminate this Agreement upon notice of Your breach of this Agreement. Rignite shall also have the right to terminate this Agreement if Your Website fails to generate at least one (1) new End User in any consecutive six (6) month period (an “Inactive Affiliate Termination”). Fees earned through the date of termination of this Agreement will remain payable only if the Agreement was not terminated for cause (including Your breach of this Agreement) by Rignite. Upon termination of this Agreement, any permissions granted by Rignite to You (including without limitation the license contained in Section 4) will terminate, and You must immediately cease promoting End User Services on Your Website or elsewhere. Those provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement (including without limitation Sections 7, 8, 9, 10, 11, 12 and 13) shall survive any termination of this Agreement.
10. Confidentiality. For purposes of this Agreement, “Confidential Information” means all information, whether written, verbal, graphic, electronic or any other form, of either party (the “Disclosing Party”), which is disclosed to or observed by the other party (the “Receiving Party”) and is marked at the time of disclosure or observation as being “confidential” or “proprietary” or is of such a nature that a reasonably prudent person would recognize such information as being confidential. Confidential Information does not include any information that the Receiving Party can prove (a) is or becomes publicly available without breach of this Agreement, (b) was lawfully in the Receiving Party’s possession before the Disclosing Party disclosed such information, (c) was received by the Receiving Party from a third party under no duty or obligation to maintain the confidentiality of such information, or (d) was separately developed by the Receiving Party without reliance on any other Confidential Information. The parties agree that the terms and conditions of this Agreement are considered to be Confidential Information of each party. The Receiving Party shall at all times, both during and after the Term, hold the Confidential Information of the Disclosing Party in the strictest confidence, and shall not disclose such Confidential Information to any third party, except to those of its employees, agents, contractors and advisors who have a need to know such Confidential Information in connection with the performance of the Receiving Party’s obligations under this Agreement and who have first agreed to be bound by terms and conditions substantially similar to those contained in this Section 10. The Receiving Party shall not use such Confidential Information for any purpose other than as necessary for the performance of its obligations under this Agreement. The Receiving Party will use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential Information received from the Disclosing Party as the Receiving Party uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than a commercially reasonable degree of care. Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit any disclosure required under applicable law or regulation or in a judicial or other governmental investigation or proceeding, provided that the Receiving Party gives the Disclosing Party prompt written notice of such disclosure and cooperates with the Disclosing Party in any proper action taken by the Disclosing Party to contest or limit the scope of such disclosure. Neither party shall issue any press releases or announcements, or any marketing, advertising or other promotional materials, related to this Agreement or referencing the other party without the prior written approval of the other party; provided, however, that You agree that Rignite may identify You as a customer in client lists and may use Your name and/or logo solely for such purposes in its marketing materials.
11. Indemnification. You shall defend, indemnify and hold harmless Rignite, all Rignite Affiliates, and their respective directors, officers, employees, contractors, agents, successors and assigns (each an “Indemnified Party”) from and against all third party claims, suits and proceedings, and any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) resulting therefrom, arising from or related to (a) Your breach of any of Your duties, obligations, representations or warranties contained in this Agreement, (b) Your willful or negligent acts or omissions, or (c) any of Your Content or other material on Your Website or contained in any advertising promoting End User Services. The Indemnified Party shall be entitled to participate in the defense of such claim, suit or proceeding with counsel of its choice at its expense. You shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon the Indemnified Party.
12. Limitation of Liability. EXCEPT TO THE EXTENT ARISING PURSUANT TO A BREACH BY YOU OF THE LICENSE GRANTED IN SECTION 4, A BREACH BY EITHER PARTY OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 10, OR YOUR INDEMNIFICATION OBLIGATIONS IN SECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION HEREIN, RIGNITE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID TO YOU PURSUANT TO THIS AGREEMENT.
13. Miscellaneous.
(a) Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party; provided, however, that Rignite may assign this Agreement to an acquirer of all or substantially all of its equity securities, assets or business relating to the subject matter of this Agreement or to any Rignite Affiliate without Your consent. Any purported assignment in violation of this Section 13(a) shall be null, void and of no effect.
(b) The parties are independent contractors under this Agreement. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement of any kind for or on behalf of, incur any obligation or liability of, or other otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, partnership, franchise, sale representative or employment relationship between the parties or to impose any partnership obligation or liability upon either party. Each party shall bear its own costs and expenses in performing this Agreement.
(c) Neither party shall be liable by reason of any failure or delay in the performance of its obligation hereunder for any cause beyond the reasonable control of such party, including without limitation electrical outages, failure of Internet service providers, default due to Internet disruption (such as denial of service attacks), riots, insurrection, acts of terrorism, war, fires, flood, earthquakes, explosions or other acts of God.
(d) This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties further agree that jurisdiction and venue for any matter arising out of or relating to this Agreement shall be proper only in the state and federal courts located in Santa Clara County, California. In the event of any dispute relating to this Agreement, the prevailing party shall the entitled to recover its reasonable attorneys’ fees and costs from the other party.
(e) All notices required to be given under this Agreement must be given in writing and delivered either by hand, certified mail (return receipt requested, postage pre-paid), or a nationally-recognized commercial overnight delivery service, and addressed to You at the address that You provided when you enrolled in the Program or to Rignite at 444 Castro Street, Suite 710, Mountain View, CA 94041, Attention: Legal, as the case may be, or such other address as to which the party has notified the other party in accordance with this Section 13(e). Notice shall be deemed effective upon receipt, provided, however, that notice sent by mail shall be deemed received three (3) days after deposit in the U.S. mails unless received sooner. All notices required to be given under this Agreement may also be delivered by electronic mail to You at the email address that You provided when you enrolled in the Program and to Rignite at [email protected].
(f) In the event that any of the provisions of this Agreement shall be held by a court of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
(g) No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
(h) This Agreement contains the entire understanding of the parties hereto with respect to the transactions and matters contemplated herein and supersedes all previous agreements, communications and understandings and course of dealing between the parties concerning the subject matter hereof. This Agreement may be altered, modified or amended by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation a written instrument signed by the parties or through a “click-through” acknowledgement. Notwithstanding the foregoing, Rignite shall have the right to change, modify or amend this Agreement, in whole or in part, by posting a revised Agreement on the Rignite Website at least thirty (30) days prior to the effective date of such change, modification or amendment. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION FOLLOWING OUR POSTING OF A CHANGE NOTICE ON THE RIGNITE WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGES SET FORTH IN SUCH CHANGE NOTICE.