Whereas, Diode has developed and desires to advertise, promote, market and distribute its Services, and whereas Affiliate desires to obtain the right to act as an independent affiliate of Diode with the non-exclusive right to market, promote and refer Customers to the Services. Therefore, by signing a “Diode Affiliate Commission Plan” addendum (the “Addendum”) to this Agreement, Affiliate agrees to participate in Diode’s Affiliate Program (“Program”) in accordance with the terms and conditions set forth in the following sections.
Subject to the terms and conditions of this Agreement, Diode grants Affiliate the non-exclusive, non-transferable right during the Term to: (a) market and promote the Services to Customer Leads in the Territory; (b) use the Services to solely demonstrate and market the operation and capabilities of the Services to Customer Leads; and (c) resell the Services to Customers in the Territory. Except as set forth herein, Affiliate shall make no other use of the Services or the Documentation or otherwise market or sell any other products or services of Diode other than the Services.
2. Customer Policies and Pricing
Customers who buy Services through this Program will be deemed to be Customers of Diode. Accordingly, Diode’s rules, policies, and operating procedures concerning Customer orders, Customer service, and Services sales will apply to those Customers. Diode may change policies and operating procedures, including pricing, at any time in keeping with the prevailing Diode Terms of Service for the Services.
3. Responsibilities of Affiliate
Affiliate will market the Services to potential Customers and will use commercially reasonable efforts to promote and enhance the use of the Services in a professional manner consistent with Documentation for the same Services. Affiliate may receive assistance from Diode with the Documentation, however, Affiliate will ultimately be solely responsible for the development, operation, cost, and maintenance of materials and activities related to the promotion of the Services and to the execution of any other duties or functions related to this Agreement. In addition, Affiliate will:
a) Acquire and maintain the knowledge and ability to autonomously coordinate a sale of the Services to Customers;
b) Participate in such training programs as may be required by Diode;
c) Provide basic on-boarding and front line of support to Customers;
d) Make Customer Lead name and contact information available to Diode, and take other action as requested by Diode, so that Customer Leads can be reviewed for approval or rejection;
e) Participate in such business development discussions and review meetings with Diode as are necessary to maintain strong Customer Lead activity and;
f) Participate in quarterly review calls with Diode for performance, product and marketing updates;
g) Conduct business in a manner that reflects favorably on the Services and Diode;
h) Strictly avoid any and all deceptive, misleading, illegal, immoral, or unethical practices that might be detrimental to Diode, the Services, or the public;
i) Not make any false or misleading representations with respect to the Services or Diode;
j) Comply with all applicable laws, rules, and regulations applicable to Affiliate’s activities under or in connection with this Agreement.
4. Customer Lead Approval
In order to be paid a Commission, and prior to engaging in any sale of Services to a Customer Lead, or referring a Customer Lead to Diode, Affiliate shall register such Customer Lead with Diode, by submitting a Customer Lead registration form, accessible at: https://93skrhki.paperform.co and providing complete and accurate information regarding such Customer Lead, and the Affiliate’s role with respect to such Customer Lead relative to the purchase of Services from Diode. All Customer Leads, as well as any orders or requests for Services from such Customer Leads, are subject to the approval and acceptance by Diode in its sole discretion. Diode may reject any Customer Lead at any time in its sole discretion, including, but not limited to, if there is a possibility that the Customer Lead is the focus of a pre-existing sales effort by Diode or another affiliate of Diode or presents a credit or liability risk. Diode shall notify the Affiliate if any Customer Lead is approved by Diode as a Customer or is rejected by Diode, without any obligation to provide any reasons therefore. Affiliate shall not earn any Commission with respect to a Customer Lead that has not been approved by Diode. Should Customer cancel their registered Services and later re-register for the Services with different credentials not clearly identified with the same Customer Lead, a new Customer Lead approval process will be required.
In consideration of Affiliate’s performance hereunder, Diode shall pay Affiliate a commission (the “Commission”), as set forth in the Affiliate Commission Plan Addendum, from the Adjusted Gross Revenue received by Diode minus any Adjustments and Set-Offs. Commissions shall be paid before the thirtieth day (30th) day following the last day of the month for which the Customer’s Services were subscribed. Except as provided herein, Affiliate shall receive no other sums, compensation, remuneration, fees, reimbursements, or payments from Diode and Affiliate waives any right to claim any such sums, compensation, remuneration, fees, or payments.
5.1 Adjustments and Set-Offs
Commissions shall be subject to adjustment for refunds, non-payment by Customers, discounts, promotions, or other factors arising subsequent to the payment of Commissions. Such adjustments may be set-off or deducted from future and unpaid payments of Commissions.
Affiliate shall have a period of thirty (30) days following receipt of a Commission (the “Commission Dispute Window”) to dispute any amount remitted by Diode or request additional supporting documentation, following which Commission Dispute Window Affiliate may not dispute a Commission. Upon receiving a written dispute, Diode shall promptly furnish any additional documentation reasonably requested by Affiliate in order to verify the accuracy of each Commission. Diode shall reasonably cooperate as requested with any such examination. If the examination reveals that Diode has underpaid Affiliate, then Diode shall pay any unpaid amount that such examination reveals was due to Affiliate.
The initial term of this Agreement shall be one (1) year from the Effective Date as set forth above. Thereafter, this Agreement shall automatically renew on a yearly basis unless otherwise terminated as set forth herein.
Affiliate may terminate this Agreement upon thirty (30) days written notice prior to the expiration of the initial or any renewal term. Diode in its sole discretion, may terminate this Agreement without cause and without liability upon thirty (30) days’ prior written notice to Affiliate for reasons including, but not limited to:
a) A determination by any governmental authority with jurisdiction over the parties that the provision of the Services under this Agreement is contrary to existing laws, rules or regulations;
b) A material breach of any of the terms of this Agreement that is not cured within 10 days of written notice that specifies the breach. Affiliate will forfeit any outstanding Commission payments earned during the material breach;
c) Affiliate suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets or if Diode determines that Affiliate is not creditworthy;
d) The passage of adoption of any law, rule or regulation that in the reasonable judgment of Diode will make it materially more expensive or difficult to provide the Services under this Agreement.
Upon the termination of this Agreement for any reason, Diode will be entitled to immediately cease providing Commissions to Affiliate, and Affiliate shall immediately return any Confidential Information or other property belonging to Diode. Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive termination will continue to apply.
8. Changes to Agreement Terms
We may make changes to this Agreement from time to time, and will notify affiliates by email at least 30 days in advance of the effective date of the changes.
9. Trademarks and Representations
This Agreement does not create, and neither party will have any right in, or to the use of, any names, marks, logos, designs, and other brand designations of the other party (collectively, “Trademarks”). Notwithstanding the foregoing, Affiliate will be granted a non-exclusive, non-transferrable right to use Documentation supplied by Diode to identify itself as an Affiliate Program participant, and for advertising and promoting Diode Services under this Agreement. In performing its obligations hereunder, Affiliate may refer to the Services by the associated Diode Trademarks, provided that such reference is not misleading and complies with any guidelines issued by Diode. Affiliate shall promptly notify Diode of any apparent infringement or threatened infringement of any Diode Trademark, and shall, upon written request by Diode, use its best efforts to assist Diode to restrain any such infringement of threatened infringement. Affiliate agrees it will not use, register, or otherwise appropriate any name, mark, or logo which is similar to or may be confused with any Diode Trademark. Diode reserves the right, in its sole discretion, to institute any proceedings against such third party infringers and Affiliate shall refrain from doing so. Affiliate shall not use any Diode Trademark in Affiliate’s corporate or legal name or register any domain name(s) with such Diode Trademarks.
10. Confidential Information
Affiliate acknowledges that during the course of this Agreement, it may acquire information regarding Diode or its affiliates, its business activities and operations or those of its customers and suppliers, and its trade secrets including without limitation its customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature (hereinafter “Confidential Information”). Affiliate shall hold such information in strict confidence and shall not reveal the same, except for any information which is: (a) generally available to or known to the public; (b) independently developed by such party outside the scope of this Agreement; or (c) lawfully disclosed by or to a third party or tribunal. Affiliate may disclose the Confidential Information pursuant to any judicial or governmental request, requirement or order provided, however, Affiliate takes all necessary steps to provide prompt and sufficient notice to Diode so that Diode may contest such request requirement or order. The Confidential Information of Diode shall be safeguarded by Affiliate to the same extent that it safeguards its own confidential materials or data relating to its own business and Affiliate agrees to limit access to such Confidential Information to employees, agents or representatives who have a need to know such information in order to perform the obligations set forth in this Agreement and further the matter of mutual interest described herein. The parties agree that an impending or existing violation of these confidentiality provisions would cause Diode irreparable injury for which it would have no adequate remedy at law, and agree that Diode may be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any rights and remedies available to it.
11. Limitation of Liability
Diode will not be liable for indirect, punitive, special, incidental or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, Diode’s aggregate liability arising with respect to this Agreement and the Program will not exceed the total fees payable to Affiliate under this Agreement.
12. Disclaimer of Warranty
Affiliate shall have no authority to make any warranties for the Services to Customers. Diode makes no express or implied warranties or representations of any kind with respect to the Program or any Services sold through the Program (including, without limitation, warranties of title, fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage) other than those expressly provided to a Customer in a separate Customer agreement. In addition, Diode makes no representation that the operation of the Services will be uninterrupted or error-free, and Diode will not be liable for the consequences of any interruptions or errors. ALL SERVICES, MATERIALS, AND PRODUCTS PROVIDED BY DIODE TO REPRESENTATIVE HEREUNDER ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, AND DIODE HEREBY DISCLAIMS ALL SUCH WARRANTIES.
Affiliate will indemnify, defend, and hold harmless Diode from and against any and all claims, damages and expenses (including reasonable attorneys’ fees and costs of litigation) by any third party resulting from any acts or omissions of Affiliate relating to its activities in connection with this Agreement, Affiliate’s breach of this Agreement, or Affiliate’s misrepresentations relating to Diode, the Services, or this Agreement, regardless of the form of action.
14. Independent Investigation
AFFILIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT DIODE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMERS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when mailed first class mail or by nationally recognized courier service, duly addressed and with proper postage, to the address set forth at the beginning of this Agreement, or when an written or emailed response has been received in response to an email sent to the email address set forth at the beginning of this Agreement. Notwithstanding the foregoing, Diode may give notice of changes in prices, Services descriptions, policies and other routine events and procedures by way of email newsletter or website content updates.
16. Force Majeure
Diode shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its reasonable control.
17. Relationship to the Parties
Diode and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate is in no way authorized to make any license, contract, agreement, warranty or representation on behalf of Diode, or to create any obligations expressed or inspired on behalf of Diode except to the extent and for the purposes expressly provided for and set forth herein.
18.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement. In the event of a conflict or inconsistency between the terms of this Agreement and those of any order, quotation, acknowledgment or other communication from one party to the other, the terms of this Agreement will be controlling;
Affiliate will not assign this Agreement or any rights under this Agreement without the prior written consent of Diode, which consent will not be unreasonably denied or withheld. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. For purposes hereof, an assignment includes, without limitation, a merger, sale of assets or business, or other transfer of control by operation of law or otherwise;
18.3 Governing Law
This Agreement will be governed by the internal laws of the State of Wyoming (without regard to its conflict of law principles), and Affiliate consents to the exclusive personal jurisdiction of and venue in the state and federal courts sitting in Sheridan County, Wyoming;
Any unresolved dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or Affiliate relationship with Diode or any of Diode affiliates shall be submitted to confidential arbitration in Sheridan, WY USA, except that, to the extent Affiliate has in any manner violated or threatened to violate Diode intellectual property rights, Diode may seek injunctive or other appropriate relief. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. 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;
In the event any provision of this Agreement is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of this Agreement. Any such provision may be reformed by a court of competent jurisdiction so as to render the same valid or enforceable while most nearly effectuating the intent of the parties. Any failure by Diode to enforce strict performance by Affiliate of any provision of this Agreement will not constitute a waiver of Diode’s right to subsequently enforce such provision or any other provision of this Agreement.
- “Adjusted Gross Revenue” means all software subscription fees actually received by Diode from a Customer, pursuant to the prevailing Terms of Service, less any fees paid to third parties by a Customer or Diode and not ultimately retained by Diode (including, but not limited to, third party service fees) that would reduce the amount received by Diode from such Customer, credits or refunds, price discounts and allowances, and taxes imposed directly on such Services by governmental authorities.
- “Customer” means a person or entity that is referred by Affiliate to Diode, and that is subsequently approved by Diode in accordance with this Agreement, to acquire the Services for its own use, rather than for resale or distribution.
- “Customer Lead” means any prospective end user of the Services in the Territory that is referred by Affiliate to Diode for approval or rejection in accordance with this Agreement.
- “Documentation” means the reference materials, technical information, website content, and marketing materials as furnished by Diode with respect to the Services.
- “Services” means subscriptions to Diode’s Online Services provided by Diode to Customers.
- “Territory” means the Region of Operation of this Agreement, as defined in the Addendum.