Solutions Affiliate Program Agreement
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NOTE: TO QUALIFY FOR THIS PROGRAM, YOU MUST ALREADY BE A MARKETING AFFILIATE!
PLEASE READ THIS SOLUTIONS AFFILIATE PROGRAM AGREEMENT CAREFULLY. THEN COMPLETE THE FORM BELOW TO EXECUTE THE AGREEMENT.
This is a contract between you (the Solutions Affiliate and us (Splashmetrics)). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible.
This document applies to your participation in our Solutions Affiliate Program (the “Program”) at the Solutions Affiliate level. Please note that to participate in this Program, you must already be a Marketing Affiliate. If you are not yet a Marketing Affiliate, you must apply to that program separately – and be approved prior to applying for this Program. Furthermore, where terms might conflict between the two agreements (e.g. – 4.d.ii below where you represent the End User/Customer as a consultant/agency), the terms herein supersede those of the Marketing Affiliate Agreement. These terms are so important that we cannot have you participate in our Program unless you agree to them. By participating in our Program, you are agreeing to these terms.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Program ends, or becomes part of another affiliate program. If we update or replace the terms we will let you know via an in-app notification in your portal or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
- Definitions
“Solutions Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Active Engagement” means that you have a fully executed written agreement with (i) either Splashmetrics directly upon its request for an existing Splashmetrics End User in its role as an Affiliate Agent, or (ii) a Splashmetrics End User whom has requested your services directly. If the latter, the agreement with the customer (i) either pre-dates the time at which the transactions for Subscription Service is closed, or is signed contemporaneously with the close of transaction, and (ii) either extends at least ninety (90) days beyond the close of the transaction for Subscription Service or has a specific and identifiable deliverable, as determined by us in our discretion.
“Affiliate Agent” means the role of Splashmetrics in cases where the Customer requests that Splashmetrics selects and manages the services of a Solutions Affiliate on its behalf. In this case, the Solutions Affiliate will work directly with Splashmetrics for both contracting and executing the associated services for said Customer.
“Affiliate Services” means all optional technical and non-technical services performed or delivered by select professional Solutions Affiliates of Splashmetrics. These services can include, without limitation, RevOps implementation services, operations and sales training and education services, and content creation and development services, and other optional professional services, but excluding the SaaS Services, the Support Services, and the Other Services. Solutions Affiliate Services will be provided on a time and material basis at such times or during such periods, as may be specified in a separate Solutions Affiliate Services SOW and mutually agreed to by the parties. All Solutions Affiliate Services will be provided on a non-work for hire basis. Customer can choose to directly manage these services with the Affiliate(s) itself, or to have Splashmetrics contract and manage these services on its behalf for an additional fee.
“Affiliate Services Commission” means an amount described in the Affiliate Tool (or if applicable, in the Program Policies) for each Affiliate Services SOW amount approved by the Customer where Splashmetrics has selected you to provide such services.
“Affiliate Project Manager” means a dedicated project manager employed by the Solutions Affiliate to interface with Splashmetrics and the End User as required, for the duration of the Active Engagement, to perform and complete the delivery of the services outlined in the Affiliate Services SOW.
“Affiliate Services SOW” means a statement of work document that outlines the optional Affiliate Solutions Services selected by Customer.
“Agreement” means this Splashmetrics Solutions Affiliate Program Agreement and all materials referred or linked here.
“Capacity Limit” means the aggregate number of End Users that you are permitted to provide services to at any given time according to the Program Policies that apply to you.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Whether or not marked or designated as confidential, Confidential Information shall include all information concerning: (a) Disclosing Party’s customer and prospect information, including Customer Data and Customer Materials, as defined in the Customer Terms of Service (b) Disclosing Party’s past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research and development materials. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
“Cross Sell” means a limited Splashmetrics partner program which, at our discretion in each individual instance, allows an Affiliate to be eligible for Commission on a sale of a complementary Subscription Service to an existing End User, provided other relevant eligibility and acceptance and participation criteria stated in Sections 3 and 4 of this Agreement have been fulfilled. Cross Sell is only available in situations where an End User contracts directly with us for provision of the Splashmetrics Products in all original and ensuing transactions. Additionally, Cross Sell is only available in proposed Qualified Transactions where all involved parties — namely existing Affiliate(s), new potential Affiliate(s), and End User — are eligible to participate, as determined by us in our sole discretion. We will notify Affiliate(s) directly when and if they become eligible for Cross Sell. Cross Sell may not be available in all countries or regions, and we reserve the right to change, suspend, limit, or cancel the program, in whole or in part, at any time by notifying the affected Affiliate(s) through email, in-app or by any other reasonable form of notice.
“Customer Terms of Service” means those terms and conditions located at https://splashmetrics.io/terms-and-conditions, as modified from time to time.
“End User” means the authorized actual user of the Splashmetrics Products or the party on whose behalf you use the Splashmetrics Products.
“End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the Splashmetrics Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the Splashmetrics Products.
“Net Services Revenue” means the fee that is actually paid to us by an End User or by Affiliate for an End User for the Affiliate Services. Net Services Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds not due to a contract breach by Splashmetrics, and (ii) shall exclude any fees for Other Products.
“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include all of our intelligence and content software, legacy intelligence and content products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
“Program Code of Conduct” means the code of conduct applicable to you as an Affiliate which we communicate to each Affiliate upon their acceptance into the Program(s).
“Program Policies” means the policies applicable to you which we have published at https://splashmetrics.io/solutions-affiliate-program-policies/.
“Solutions Affiliate Eligibility Requirements” mean you 1) have completed an application to become a Solutions Affiliate and you have received a notification within thirty (30) days of submission of your application stating that you have been accepted to participate in the Program as a Solutions Affiliate; 2) have completed certain requirements or certification(s) as communicated to you by us during your application review process; and 3) have completed the eligibility criteria set out in the Solutions Affiliate Program Policies within thirty (30) days of your acceptance into the Program. For the purposes of this Agreement, if we do not notify you that you are accepted to participate in the Program within thirty (30) days from your application, your application is considered to be rejected. Furthermore, failure to complete the eligibility criteria, as described in 2) above, within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Program and receive any benefits thereof.
“Solutions Services” means the services provided by you as a Solutions Affiliate.
“Splashmetrics Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into Splashmetrics Products and all of our other services.
“Splashmetrics Products” means both the Subscription Service and Other Products.
“Subscription Service” means our web-based software that is subscribed to, and developed, operated, and maintained by us, accessible via https://www.splashmetrics.app or another designated URL, and add-on products to our software. For the purposes of this Agreement, the Subscription Service does not include our legacy products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
“User Permissions” means the authorization given to users within a Splashmetrics portal that enables them to access specific resources, such as data and applications.
“We”, “us”, “our”, and “Splashmetrics” means Splashmetrics, Inc.
“You” and “Solutions Affiliate” or “Affiliate” means the party, other than Splashmetrics, entering into this Agreement and participating in the Program.
2. Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
Your acceptance and participation as a Solutions Affiliate does not mean that you will be accepted into our Marketing Affiliate Program. Each level of participation has its own eligibility requirements that must be met and maintained separately.
3. Solutions Affiliate Rights and Obligations
a. Solutions Affiliate Rights. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Splashmetrics Products to your prospects and customers, (ii) to provide End Users access to use the Splashmetrics Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service, and (iii) to provide End Users your specific Solutions Services via the Splashmetrics Products. At our discretion, we will provide limited support to you, such as occasional participation on a call with you and an End User.
b. Compliance with Program Policies and the Program Code of Conduct. You will comply with the terms and conditions of this Agreement at all times, including the Solutions Program Policies applicable to you and the Program Code of Conduct which are incorporated herein by reference. Specifically, if you are participating in the Program as an Affiliate, the Solutions Affiliate Program Policies will include requirements that an Affiliate must complete in order to qualify for a certain affiliate tier and may also include further details regarding the requirement for the Affiliate to purchase certain products or services to participate in the Program as an Affiliate. Failure to comply with the Solutions Affiliate Program Policies, and the Program Code of Conduct may result in termination of this Agreement in accordance with the “Termination” section of this Agreement or in accordance with any other termination or suspension right we may have.
You will respect the limits that apply to your use of the Splashmetrics products as specified in the product pricing information at https://splashmetrics.io/ (the “Service Limits”). We may update or change these Service Limits, so we encourage you to review this page periodically.
c. Program Limits. Your Capacity Limit depends on your Affiliate tier status and will be as set forth in the Program Policies. Any prospect(s) registered in excess of your applicable Capacity Limit will not be considered valid as per Section 4.b. of this Agreement. It is your responsibility as Solutions Affiliate to maintain the number of Active Engagements within your Capacity Limit. Failure to do so may result in your suspension as Affiliate and/or the suspension of any payments due to you under this Agreement.
d. Timely Delivery of Services. You commit to deliver the services, to the Customer’s satisfaction, as outlined in your Affiliates Services SOW. In the event that you fail to deliver your Services on time and/or to the Customer’s satisfaction, Splashmetrics may terminate your services and find another Affiliate to provide said Services to the Customer.
4. Qualified Transactions
a. Transaction Eligibility Requirements. To be eligible to submit an Affiliate Services SOW to provide Solutions Services, you must (i) be requested to do so by Splashmetrics on behalf of an existing Customer, or (ii) requested to do so by an existing or new Splashmetrics Customer with whom you have an approved relationship. If you are bringing a new Customer to Splashmetrics as a Marketing Affiliate, that Customer must be registered, accepted and valid in accordance with the Marketing Affiliate Program Agreement. You are not eligible to submit an Affiliate Services SOW if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us or our Affiliates; (iii) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us with respect to a given transaction; (iv) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you; (v) the End User participates in this Program, or (vi) for any transactions with End User that precede in time to you becoming an Affiliate in this Program under this Agreement. In competitive situations with other Affiliates, we may elect to enable Cross Sell (in situations where the Subscription Service is complementary and Cross Sell is otherwise available) or to provide Solutions Services opportunities to the Affiliate that actually secures the business with the End User, which may result in you being ineligible for Solutions Services opportunities, regardless of whether or not you registered the prospect.
We may terminate this Agreement and/or discontinue Solutions Services opportunities should you fail to meet any of the eligibility criteria set forth in Section 3 or 4 of the Agreement or as outlined in the Program Policies at any time.
b. Submission, Acceptance and Validity of Prospects. In the case where Splashmetrics requests an Affiliate Services SOW from you on behalf of a new or existing Splashmetrics Customer, you must submit said SOW to us using the Affiliate Toolset we provide through your portal (or through a website as we may designate). In the case where you are bringing a Subscription Service deal to Splashmetrics via your relationship with that Prospect and your participation in the Marketing Affiliate Program, you must first satisfy all the requirements of that agreement before you begin your Affiliate Services for that new Customer. Further, if that Customer chooses to work directly with you for these Affiliate Services, you do not need to submit the Affiliate Services SOW to us. Only in the instance where the Customer wants Splashmetrics to act as the Affiliate Agent do you need to submit the Affiliate Services SOW to us.
Notwithstanding the foregoing, we may choose not to accept a Prospect, new Customer, or Affiliate Services SOW in our reasonable discretion. We may choose to do so at the time of your registration submission, or we may reject a prospect or Affiliate Services SOW and remove attribution to you if we determine a prospect does not meet the criteria outlined in this Section 4.b. at any point after submission, even in cases where it was initially accepted. At the time of registration submission, we may also advise you on whether a prospect is eligible for Affiliate Services.
A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated.
In the case where we have brought you in to provide an Affiliate Services SOW to an existing or new Customer, and that Customer has approved said SOW and is ready to proceed, we will, at our discretion, accept an order and provision the Affiliate Services for the End User in order to complete a Qualified Transaction.
If a prospect you are bringing to Splashmetrics via the Marketing Affiliate Program does not purchase the Subscription Service before its registration expires, you will need to complete the registration process again in order to re-qualify for that prospect. Please note that you must have a written and readily available privacy policy and you certify that you are providing the prospect’s information to us in accordance with not only all applicable laws and regulation but also in accordance with your own privacy policy.
c. Splashmetrics Leads. As previously noted, we may choose to introduce you to, or send you information on, a prospect or Customer of ours when we identify that such prospect or Customer may have a need for the services you offer (each, a “Splashmetrics Lead”). We can do the same for other Affiliates of ours, even if it is for the same Splashmetrics Lead. You may use the information about the Splashmetrics Lead provided only to market and sell your services to them and not for any other purpose (unless the Splashmetrics Lead otherwise consents). Immediately upon our or the Splashmetrics Lead’s request, you will promptly discontinue all use of and delete the Splashmetrics Lead’s information. Splashmetrics Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.
d. Engagement with Prospects and End Users. We may engage with a prospect, lead or End User directly (i) to enable our Cross Sell program, (ii) to complete the subscription process, (iii) to fulfill or enforce our obligations under an agreement with such prospect, (iv) to provide support, (v) to conduct our standard marketing and sales activities with prospects; (vi) in connection with the Optional Programs, or (vii) as otherwise permitted by this Agreement.
If and when we do engage, we may choose how to engage with each prospect and may request that you collaborate with us in the engagement. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.
If we request, you will facilitate our participation on calls with you and various End User(s). We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Program.
In a resulting Qualified Transaction, (i) the End User will contract directly with us for provision of the Splashmetrics Products and the Affiliate Services and we will request the Affiliate Services SOW from you, or (ii) you will place order(s) and contract with Splashmetrics in your own capacity, and on the End User’s behalf, for the Splashmetrics Products with us, specifying the terms of the Splashmetrics Products ordered. You will provide information about the End User as we may request, and you will ensure that your agreement with the End User incorporates our Customer Terms of Service or contains those provisions set forth in our Customer Terms of Service. In this case, instead of receiving your Marketing Affiliate Program commission, you will receive a discount on the Splashmetrics Products in the same percentage as your Marketing Affiliate Program commission. And you will also contract directly with us on behalf of the End User for the Affiliate Services as described herein, or (iii) you will contract directly with an existing Splashmetrics Customer, upon our approval, for Affiliate Services only at the Customer’s request. Option (ii) herein is not possible if the resulting transaction is a Cross Sell type transaction because you may not purchase on behalf of an End User and take on End User’s contractual obligations for a Cross Sell transaction. In the case of (ii) herein, where possible, and the prospect is considered registered, accepted and valid for the purposes of this Section 4., you may sell the Splashmetrics Products to End Users at a fair-market price determined solely by you. You will provide information about the End User as we may request, and you will ensure that your agreement with the End User incorporates our Customer Terms of Service or contains those provisions set forth in our Customer Terms of Service. In this case, instead of receiving your Marketing Affiliate Program commission, you will receive a discount on the Splashmetrics Products in the same percentage as your Marketing Affiliate Program commission, and it will still be for the standard price of the Splashmetrics Products as set by us – not the price set by you. If you purchase on behalf of an End User, under any option herein, you agree to be responsible for the order placed and to guarantee payment of all fees. Additionally, Subscription Service may be used only for the End User for which it was originally purchased, it may not be shared and may not be repurposed for or reassigned to any alternate End Users without our prior written consent. Log-in information may never be shared between individuals.
Regardless of the method of purchase and which party is the contracting entity as established by the order, we require each End User to agree to the Customer Terms of Service when using the Splashmetrics Products.
You will take all reasonable steps to ensure that End Users do not use the Splashmetrics Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the Splashmetrics Products in violation of the Customer Terms of Service, then you will immediately notify us in writing.
5. Commission and Services Funds Transfer.
a. Requirements for Affiliates Services Commission. In cases where Splashmetrics requests you to provide Solutions Services to a Customer for which it is the Affiliate Agent for such services, and that Customer approves your Solutions Services SOW, upon payment by the Customer for these services, Splashmetrics will retain a commission on the total SOW amount for the same percentage of the SOW amount shown in your Affiliate Portal for your Marketing Affiliate commission, and transfer to you the remainder as stipulated in the Solutions Services SOW. In cases where you provide Affiliate Services directly to a Splashmetrics Customer whom you brought to Splashmetrics via the Marketing Affiliate Program, and with whom you contract directly (Splashmetrics is not acting as the Affiliate Agent), you will not owe an Affiliate Services Commission to Splashmetrics.
b. Requirements for Services Funds Transfer; Forfeiture. In the case where Splashmetrics is selected by the Customer as the Affiliate Agent, in order to receive the transfer for your services under this Agreement, you must have: (i) agreed to and complied with the terms of this Agreement; (ii) provided us with all of your account information, including your required information for the transfer; and (iii) submitted to us all the necessary and valid tax documents, including VAT invoices where necessary, and the documents have been approved. Please see the Program Policies for the applicable list of documents that need to be submitted to us and the required method of delivery.
All Services Funds Transfers by Splashmetrics will be made by digital means such as Paypal or bank transfer and it is your responsibility to ensure that you have provided us with the most up-to-date and correct transfer information to facilitate such transfer. We will not issue transfers by any other means. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) if you fail to timely deliver the services outlined in the Affiliate Services SOW to the Customer’s satisfaction and/or Splashmetrics’ satisfaction, or (ii) any of the requirements set forth in this section, Section 5. a., remain outstanding for six (6) months immediately following the close of a Qualified Transaction, or (iii) we have attempted to transfer funds to you for a Qualified Transaction by the accepted digital means, and the attempt was unsuccessful (as confirmed by bank notice), to no fault of our own; and (iv) we reached out to either the Primary Contact, Billing Contact or Decision Maker Contact on your account (all of which you can update in app) to obtain the necessary information and have not received a response; and (v) six (6) months has passed since the date of the initial, failed bank transfer described herein, then your right to receive the transfer(s) arising from any and all Qualified Transactions(s) with the associated End User will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to transfer funds to you for services associated with a Forfeited Transaction.
Once you comply with all of the requirements in this Section 4 then you will be eligible to receive Services Funds Transfers on Qualified Transactions, as long as these Qualified Transactions do not involve the same End User associated with a Forfeited Transaction.
c. Affiliate Services Funds Transfers. We will transfer the amount shown in the Customer-approved Affiliate Services SOW and due to you within thirty (30) days after the Customer’s acceptance as complete of the services and deliverables outlined in the SOW. In the case where multiple transfers are scheduled over time, the payment terms specified in the SOW will supersede the above transfer timeframe.
d. Taxes. You are responsible for payment of all taxes applicable to the Services Payment. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Services Payment amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
e. Payment Obligations. In the event you placed the order and contracted with us directly for an End User, for payments made by credit card, you will provide us with your valid and updated credit card information or bank account information for the payment of Splashmetrics Products fees. You authorize us and our Affiliates to charge your credit card or bank account for all fees payable. You also authorize us and our Affiliates to use a third party to process payments, and consent to the disclosure of your payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice. In the event you placed the order with us for an End User, if you do not pay fees due for an End User’s account within ten (10) days after notice of non-payment from us or our Affiliate, we may suspend the Splashmetrics Products while any payment is delinquent and may charge a re-activation fee to reinstate any Splashmetrics Products. We may also terminate or suspend the End User’s access to the Splashmetrics Products and/or to initiate direct communication with the End User. Notwithstanding termination of this Agreement, you remain obligated to pay all fees due for our provision of the Splashmetrics Products to End Users in connection with an order placed with us by you for an End User. If you placed the order with us for an End User and/or contracted with us on their behalf, you will have sole responsibility for invoicing and collecting fees for the Splashmetrics Products from the End User. Your obligation to pay fees to us is not conditioned upon your receipt of payment from the End User.
6. Training and Support
a. Training and Support. We will make available to you, without charge, various webinars and other resources made available as part of our Program. We will also make available to you a Affiliate Toolset, accessible through your Splashmetrics portal and/or our LifeRing suppoprt site at https://lifering.splashmetrics.com/. We may change or discontinue any or all parts of the Affiliate Toolset, and any other Program benefits or offerings at any time without notice. Any data submitted to us via the Affiliate Toolset will be stored in Splashmetrics’ US Data Center.
b. End User Training and Support. We may require End Users to go through and/or purchase our standard Splashmetrics on-boarding. We will provide user training purchased by an End User as set forth in a mutually agreed upon order between the End User and Splashmetrics. We may communicate directly with any End User about use of the Splashmetrics Products and any support issues experienced.
c. Splashmetrics Demo Account. If we make a Splashmetrics Demo Account available to you, then you will use the Splashmetrics Demo Account solely for your own education, demonstration and evaluation purposes. You are not permitted to use it for any other purpose. You will not lease, distribute, license, sell or otherwise commercially exploit the Splashmetrics Demo Account. You will not use any End User data or Customer Data (as defined in the Customer Terms of Service) with the Splashmetrics Demo Account. You can only use your own data (data and information that you specifically own) or the synthetic data provided to you for demonstration purposes by Splashmetrics. You will not exceed the contact limits provided for you in the Splashmetrics Demo Account and will utilize a reasonable number of objects in your use of the Splashmetrics Demo Account. The Customer Terms of Service apply to your use of the Splashmetrics Demo Account. We reserve the right to suspend, modify, or discontinue any or all part of the Splashmetrics Demo Account at any time without prior notice to you. In the event of a conflict between the terms that apply to the Splashmetrics Demo Account as specified in this Agreement and the Customer Terms of Service, the terms of this Agreement shall control.
7. Optional Affiliate Programs
We may from time to time offer you optional tools, beta testing programs or Affiliate promotions (the “Optional Programs”). If you choose to use any Optional Programs, you grant us all rights and permissions to take all actions reasonably necessary to effectuate the purpose of the Optional Programs. If the Optional Programs include our making certain promotions available to our Affiliates, you will: (i) market and promote the promotion only to your registered and valid prospects, (ii) only market and promote the promotion individually within a distinct sales process, and not engage in any form of mass marketing of the promotion, and (iii) will follow the all the other terms and criteria applicable to that specific promotion as we designate.
We may discontinue all or a portion of any Optional Programs at any time.
Additional terms may apply to your participation in Optional Programs. We will make any additional terms available to you for your review at the time of the offer to participate in such Optional Programs.
8. Trademarks
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Program and this Agreement.
We retain all ownership rights in Splashmetrics Trademarks. During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section and the incorporated guidelines. You must: (i) only use the images of our trademarks that we make available to you as part of your participation in this Program (e.g., certified Affiliate badges), without altering them in any way; (ii) only use our trademarks in connection with the Program and this Agreement; (iii) comply with this Agreement; and (iv) immediately comply if we request that you discontinue use.
You must not use any of our trademarks: (a) in a misleading or disparaging way; (b) outside the scope of the Program or this Agreement; (c) in a way that implies we endorse, sponsor or approve of your services or products; or (d) in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
9. Proprietary Rights
a. Splashmetrics Proprietary Rights. No license to any software is granted by this Agreement. The Splashmetrics Products are protected by intellectual property laws. The Splashmetrics Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Splashmetrics Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Splashmetrics Content, or the Splashmetrics Products in whole or in part, by any means, except as expressly authorized in writing by us. Splashmetrics, the Splash Design, the Splashmetrics logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers and Affiliates to comment on the Splashmetrics Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Splashmetrics Products, without payment to you.
b. End User’s Proprietary Rights. As between you and End User, End User retains the right to access and use the End User portal associated with the Splashmetrics Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data and any and all Content (e.g. – SplashMaker weblets) created for that End User. If we deem it to be necessary based on the relationship status between you and the End User or the particular situation, we may communicate directly with the End User and/or may port ownership of the portal associated with the Splashmetrics Products to the End User.
c. Third Party Proprietary Rights. In the case where your Affiliate Services may involve creating new or derivative Content for the Customer (e.g. – SplashMaker weblets, etc.), you will ensure that no protected third party content is used within that Content without the proper written consents from and any necessary payments to the rights holder(s). This includes, but is not limited to, graphics, imagery, photography, music, sound effects, etc. that require a license for use. You will present such written consents to the End User and/or Splashmetrics for its records.
d. User Participation Disclosure. Please note that any End User portal may have more than one Affiliate involved in their use of the Splashmetrics Products. All information and data about you in the End User portal may be visible to all users of the End User portal, and will not be considered Confidential Information between you and other users of the portal. It is the End User’s responsibility to set the User Permissions to control the access and visibility of all information and data in the End User portal.
10. Confidentiality
a. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
b. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
c. Injunctive Relief. Each party acknowledges that the unauthorized use or disclosure of the other party’s Confidential Information may cause irreparable harm to the other party. Accordingly, each party agrees that the other party will have the right to seek an immediate injunction against any breach or threatened breach of this “Confidentiality” section of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
11. Opt Out and Unsubscribing
You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to Splashmetrics Leads and Shared Leads. For the duration of this Agreement, you will establish and maintain a privacy policy that is compliant with all laws and regulations applicable to you and you shall establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
12. Term and Termination
a. Term. This Agreement will apply for as long as you participate in the Program and fulfill all the participation requirements, until terminated.
b. Termination Without Cause. Both you and we may terminate this Agreement on thirty (30) days written notice to the other party.
c. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement without cause on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
If you continue to participate in the program and we receive no notice as per this Section, we will consider any and all changes accepted by you fifteen (15) days after we send you notice of the change.
d. Termination for Cause. We may terminate this Agreement and/or suspend your or the End User’s access to the Splashmetrics Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) automatically, within thirty (30) of you failing to meet the Program requirements applicable to you in your capacity as the Affiliate; (iii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iv) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (v) immediately, if you or your End User(s) breach the Customer Terms of Service, including if you default on your payment obligations to us or our Affiliate, or violate any applicable local, state, federal, or foreign laws or regulations, (vi) immediately, if you breach your confidentiality obligations under this Agreement or infringe or misappropriate Splashmetrics’ intellectual property rights, or (vii) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
e. Effects of Termination. Termination of this Agreement for any reason does not terminate your Subscription Service, Subscription Service(s) you may have purchased on an End User’s behalf, or any other End User subscription agreement. Your purchase and use of the Subscription Services is governed by the Customer Terms of Service.
Otherwise, termination of this Agreement: (i) without cause by us, (ii) by you with cause, shall not affect our obligation to pay you Commissions or SOW Amounts earned up to the effective date of termination, so long as the related payment by the End User is recognized by us within thirty (30) days of the date of such termination. In the event of termination without cause by you, or for cause by us, our obligation to transfer funds to you and your right to receive any Commissions or SOW Amounts will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commissions or SOW Amounts prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive Commissions or SOW Amounts after termination of this Agreement.
Upon termination, you will discontinue all use of and delete all Splashmetrics Leads and Shared Leads if we provided them to you and you do not otherwise have consent from the applicable Splashmetrics Lead or Shared Lead to continue use of their data and information. Upon termination, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination, you will immediately discontinue all use of our trademarks, and will remove all Splashmetrics badges and references to this Program from your website(s) and other collateral.
13. Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
14. Indemnification
a. Affiliate Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Program, (b) our use of the prospect or lead data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of or participation in the Optional Programs, (e) your use of the Splashmetrics Demo Account, or (f) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
b. Splashmetrics Indemnification Requirement. If your total Qualified Subscription Services Value during the twelve (12) month period preceding the date of the event giving rise to a claim is equal to or exceeds one hundred and twenty five thousand U.S. dollars (USD $125,000), then the Splashmetrics Indemnity section below (Section 14. c.) applies to you.
c. Splashmetrics Indemnification. Provided you have fulfilled the Splashmetrics Indemnification Requirement, we will indemnify, defend and hold you harmless, at our expense, against any Action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with you to the extent that such Action is based upon or arises out of (1) an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations (“Confidentiality Indemnification”).
You will: notify us in writing within thirty (30) days of you becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
We will not have any obligation or liability under this section if the alleged claim is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you or your End User provided, (iii) use of the Subscription Service in violation of or outside the scope of the Customer Terms of Service, (iv) an allegation that the Subscription Service consists of a function, system or method traditionally utilized in marketing, sales or services software that is not commercially unique to the Subscription Service, and the commercially unique aspects of the Subscription Service are not identified in the allegation giving rise to the claim, or (v) user interface or related user design elements not provided by us.
Notwithstanding the foregoing, in the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense: (a) modify the Subscription Service or provide you and your End Users with substitute Subscription Service that is non-infringing; or (b) obtain a license or permission for you and your End Users to continue to use the Subscription Service, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your or your End Users’ access to the Subscription Service (or to a portion of the Subscription Service as necessary to resolve the claimed infringement) and refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination’ provision of this Agreement. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
If, during the twelve month period preceding the event giving rise to a claim, your total Qualified Subscription Value is below one hundred and twenty five thousand US Dollars (USD $125,000), then this section will not apply.
15. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION OF THE CUSTOMER TERMS OF SERVICE, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF SPLASHMETRICS PRODUCTS, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SPLASHMETRICS PRODUCTS, SPLASHMETRICS CONTENT, SOLUTIONS AFFILIATE PROGRAM, OPTIONAL PROGRAMS, SPLASHMETRICS DEMO ACCOUNT OR CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE SPLASHMETRICS DEMO ACCOUNT MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SPLASHMETRICS PRODUCTS, SPLASHMETRICS CONTENT, THE PROGRAM, THE OPTIONAL PROGRAMS, AND SPLASHMETRICS DEMO ACCOUNT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SPLASHMETRICS PRODUCTS, SPLASHMETRICS CONTENT, THE PROGRAM, THE OPTIONAL PROGRAMS, AND SPLASHMETRICS DEMO ACCOUNT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. EXCEPT FOR YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE “CONFIDENTIALITY” SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
d. Splashmetrics Demo Account and Optional Programs. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE SPLASHMETRICS DEMO ACCOUNT AND THE OPTIONAL PROGRAMS THAT YOU USE. WE DO NOT PROMISE TO MAKE THE SPLASHMETRICS DEMO ACCOUNT OR OPTIONAL PROGRAMS AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
16. Non-Solicitation
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement. Both you and we acknowledge that (i) any public job posting or public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
17. General
a. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be posted at https://splashmetrics.io/solutions-affiliate-program-agreement/ (or other designated URL) and we will let you know of the change through an in-app notification in your portal or by email. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Applicable Law. This Agreement shall be governed by the laws of Texas, USA without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Austin, Texas.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
f. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply with all applicable foreign and domestic laws (including without limitation export laws, privacy regulations and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Splashmetrics Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Splashmetrics Products to prohibited countries or individuals or permit use of the Splashmetrics Products by prohibited countries or individuals.
g. Data Processing. To the extent that any Personal Data is processed in connection with the Program the terms set forth in the Splashmetrics Privacy Policy here: https://splashmetrics.io/privacy-policy/, which is hereby incorporated by reference, shall apply.
h. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
i. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt:
To Splashmetrics, Inc.: Splashmetrics, Inc., 11801 Domain Blvd., 3rd Floor, Austin, TX, 78758 U.S.A.
To you: your address as provided in your Splashmetrics portal account information. We may give electronic notices by general notice through an in-app notification in your portal and may give electronic notices specific to you by email to your email address(es) that we have on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information with Splashmetrics current.
j. Entire Agreement. This Agreement is the entire agreement between us for the Solutions Affiliate Program and, except for the Marketing Affiliate Program Agreement you have with us (where no conflicts in terms between the two Agreements arise), this Agreement supersedes all other proposals and agreements (including all prior versions of this Agreement) whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Splashmetrics Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Splashmetrics Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
k. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
l. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
m. Program Policies and Code of Conduct. Your participation in the Program is subject to the Solutions Affiliate Program Policies and the Program Code of Conduct, which are incorporated herein by reference. We encourage you to review these periodically.
n. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Splashmetrics Products, our trademarks, or any other property or right of ours.
o. Sales by Splashmetrics. This Agreement shall in no way limit our right to sell the Splashmetrics Products, directly or indirectly, to any current or prospective customers.
p. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
q. Survival. The following sections shall survive the termination of this Agreement: ‘Commissions and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.
r. Jurisdiction Specific Terms. Additional terms may apply depending on your location.
Note, we highly recommend printing this agreement for your records prior to submitting the form below.
IN WITNESS THEREOF, the parties have executed this Agreement as of the following Effective Date.