The Sitecore Affiliate Program: Terms & Conditions
Sitecore Affiliate Program Agreement
This Sitecore Affiliate Program Agreement (“Agreement”), including the Affiliate Program Terms, which are incorporated herein by reference, is entered into by Sitecore and you (the “Affiliate” or “you”) (each a “Party” and together the “Parties”) as of the date you click ‘accepted and agreed’ below (the “Effective Date”). “Sitecore” means Sitecore Corporation A/S, a Danish corporation with an office at Vester Farimagsgade 3, 5th floor, DK-1606 Copenhagen V, Denmark, or Sitecore USA, Inc., a corporation registered in the United States of America with an office at 101 California Street, Suite 1600, San Francisco, CA 94111 USA, where for all Affiliates whose geographic address is located in North America or South America, the Sitecore contracting entity will be Sitecore USA, Inc., and for all other Affiliates the contracting entity will be Sitecore Corporation A/S.
Please carefully read the terms below. By clicking “accepted and agreed” you represent that you have the authority to bind the Affiliate to the terms and conditions of this Agreement, including the Affiliate Program Terms (linked in Exhibit 1). If you do not have such authority, or if Affiliate does not agree to these terms and conditions, do not click “accepted and agreed”.
- 1.1.“Affiliate Program” means the Sitecore Affiliate Program.
- 1.2.“Affiliate Program Terms” means the Sitecore Affiliate Program Referral Registration Guidelines, exhibited via link at Exhibit 1, as may be amended from time to time.
- 1.3.“Affiliated Entity” means any entity, whether incorporated or not, that is owned by or is under common ownership with a Party, with “ownership” meaning control of more than a 50% controlling or voting interest.
- 1.4.“Commission” is defined in the Affiliate Program Terms.
- 1.5.“New Customer” means any entity (excluding Affiliate) who has not been granted license or other usage rights to Sitecore’s Products.
- 1.6.“Partner Program” means any program designated as a partner program by Sitecore, including the “Solution Partner Program”.
- 1.7.“Personal Data” means any information relating to an identified or identifiable natural person.
- The Program
- 2.1.Participation. The requirements, including registration requirements, for participating in the Affiliate Program are set out in the Affiliate Program Terms.
- 2.2.Commission. Eligibility requirements for receiving a referral fee (“Commission”) are set out in the Affiliate Program Terms.
- 2.3.In the event of any refunds issued for any reasons including but not limited to fraud, and where such refunds are not incurred through any fault of Sitecore, the Affiliate may be contacted to arrange for the repayment of any related Commission.
- 6.3.Feedback. Notwithstanding any other provision in this Agreement to the contrary, if the Affiliate provides any ideas, suggestions or recommendations to Sitecore regarding Sitecore’s Confidential Information or business or products ("Feedback"),Sitecore shall be free to use and incorporate such Feedback in Sitecore’s products, without payment of royalties or other consideration to the Affiliate, provided however, the foregoing shall not be construed as granting any right or license to a Party's patents, copyrights or trademark rights or other intellectual property right in the Feedback.
- Term and Termination
- 3.1.Term. The term of this Agreement begins on the Effective Date and remains in effect until terminated in accordance with the terms of this Agreement.
- 3.2.Termination. This Agreement may be terminated by either Party at any time for any reason or no reason, immediately on receiving notice of termination from the other Party.
- 3.3.Survival on Termination: Upon termination of this Agreement, those provisions of this Agreement which by their nature are intended to survive will survive termination of this Agreement. Additionally, any obligation of Sitecore to pay Commission incurred before termination shall also survive.
- Intellectual Property
Neither Party grants any right, title, or interest in its intellectual property to the other Party. Each Party shall comply with all applicable laws and the provisions of this Agreement.
- Trademarks, logos and marketing
- 5.1.Trademarks and logos. Affiliates are not permitted to reproduce or display any trademark, tradename or logo associated with Sitecore or any Partner Program.
- 5.2.Marketing and promotions. Affiliate acknowledges and agrees that it is not permitted to call itself, or hold itself out as being, a ‘partner’ of Sitecore. Affiliate further acknowledges that no marketing or other promotional material will be provided to Affiliate by Sitecore, unless otherwise agreed between Sitecore and Affiliate.
- 6.1.Each Party (a “Receiving Party”) shall keep the “Confidential Information” (which means all business, technical, financial or other information created or exchanged between the Parties in the course of fulfilling their obligations under this Agreement) belonging to the other Party (a “Disclosing Party”) confidential and secret and shall not use or disclose or make the Confidential Information available, directly or indirectly, to any person other than its officers and employees who need the Confidential Information to enable the Receiving Party to perform its obligations under this Agreement (including its legal and financial advisers) and provided that such officers and employees are also obliged to keep such Confidential Information confidential and secret. The foregoing obligations shall not apply to any information acquired by the Receiving Party which: a) at the time of its acquisition was in the public domain; or b) at a later date comes into the public domain through no fault of the Receiving Party. Notwithstanding the foregoing, the Receiving Party will be permitted to disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided that the Receiving Party provides the Disclosing Party prompt prior notice (to the extent legally permitted to do so), and the scope of such disclosure is limited to the extent possible.
- 6.2.Each Party hereby agrees and undertakes:
- that all Confidential Information shall be and shall remain at all times the sole and exclusive property of the Disclosing Party;
- that its right to use Confidential Information shall wholly cease upon the termination of this Agreement; and
- to return to the Disclosing Party (or certify destruction of) on termination of this Agreement all material embodying Confidential Information (including information stored on digital media) or any part thereof and all copies thereof.
- Data Protection
- 7.1.During the course of the Affiliate Program the Affiliate may send to Sitecore Personal Data of prospective customers. It is the Affiliate’s sole responsibility to ensure it obtains the appropriate consent of any individual whose Personal Data is being submitted, including consent to share and transfer any Personal Data across borders, prior to that submission being made to Sitecore. Failure to get appropriate consent may lead to your removal from the Affiliate Program. The Affiliate hereby warrants that it will not transfer any Personal Data to Sitecore for which it does not have consent. Affiliate shall immediately inform Sitecore if any person later withdraws such consent.
- 7.3.Both Parties shall, at all times, comply with all data protection and privacy laws, rules and regulations applicable to the Parties.
- 8.1.Mutual Warranties.Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement, without violating the rights of any other party or applicable laws, statutes and regulations.
- 8.2.Affiliate Warranties. The Affiliate hereby warrants and acknowledges that all necessary authorities, consents and approvals have been obtained in respect of the Affiliate’s obligations under this Agreement and will remain valid and effective throughout the Term, including but not limited to any Personal Data in Section 7.1.
- 8.3.DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EACH PARTY’S ONLY WARRANTIES AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE BY EITHER PARTY. EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, PERFORMANCE, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
- 8.4.Affiliate is not authorized to make any representations, warranties, covenants or promises of any kind to any party with respect to Sitecore’s Products.
- The Parties agree to be responsible for their own actions, and each Party agrees to indemnify, defend and hold harmless the other Party and such other Party’s directors, officers, employees and agents for, from and against third party claims and losses of any type, including reasonable attorneys’ fees, in connection with, in whole or in part: (i) any negligent act or omission by, or any willful misconduct on the part of, the indemnifying Party; or (ii) the indemnifying Party’s failure to comply with any applicable federal, state, or local law or any breach of this Agreement by the indemnifying Party.
- Mechanics of Indemnification. Each Party’s obligation to indemnify the other pursuant to this Section 9 is predicated upon the indemnified Party’s (a) giving the indemnifying Party written notice of any claims giving rise to the indemnification obligations promptly after the indemnified Party becomes aware of such claims, (b) allowing the indemnifying Party to control any defense and related settlement negotiations regarding such claim, and (c) fully cooperating, at the indemnifying Party’s expense, in any defense or settlement of such claim, provided that indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.The indemnified Party may participate in the defense and settlement of any indemnifiable claim with the counsel of its choice at its expense.
- Limitation of Liability
Neither Party will be liable for any indirect, incidental, special, or consequential damages arising out of or related to this Agreement under any legal theory, including without limitation loss of profits, even if that Party has been advised of, knows of, or should have known of the possibility of such damages. Sitecore’s aggregate liability under this Agreement will not exceed the sum of the Commission paid under this Agreement. The foregoing exclusions and limits of liability will not apply to: (a) either Party’s breach of its confidentiality obligations under this Agreement; or (b) fraud or willful misconduct.
- 11.1.Non-Exclusivity. This is a non-exclusive agreement for each Party. Nothing in this Agreement is intended to prevent either Party from entering into a business arrangement with any other person or entity for any reason.
- 11.2.Independent Contractors. The Parties will act as independent contractors in the performance of this Agreement.Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose, and the employees of one Party shall not be deemed to be the employees of the other Party.Neither Party has any right to act on behalf of the other, nor represent that it has such right or authority.
- 11.3.Independent Agreements. The rights and obligations under this Agreement are separate and independent from, and shall not be conditioned upon or affected by the performance or non-performance of the terms of any other agreement between Affiliate or an Affiliate’s Affiliated Entity and Sitecore or a Sitecore Affiliated Entity.
- 11.4.Amendment or Waiver. Subject to Section 11.5 (Modification of Affiliate Program Terms) below, this Agreement may not be modified or amended except by the mutual written agreement of the Parties. All waivers must be in writing and signed by authorized representatives of the Parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed waiver of any other provision or of such provision on any other occasion.
- 11.5.Modification of Affiliate Program Terms. Affiliate acknowledges that Sitecore may modify the terms of Exhibit 1 (Sitecore Affiliate Program Referral Registration Guidelines), including commission rates and criteria, or cancel the Affiliate Program at any time in its sole discretion, with such modifications becoming effective immediately on Sitecore giving notice to Affiliate, provided that such modifications will not apply to opportunities already registered by Affiliate, subject to the Affiliate’s breach of Section 11.12. Notice of a modification will be validly given provided it is posted on the Sitecore Affiliate Portal). The current version of the Affiliate Program Terms, as may be modified from time to time, will be available on the Sitecore Affiliate Portal. Any such modifications shall be deemed incorporated by reference as if set forth in this Agreement.
- 11.6.Assignment. Affiliate may not assign this Agreement, by operation of law or otherwise. Sitecore may assign this Agreement to a successor (whether by merger, a sale of assets, a sale stock, or otherwise) or to an Affiliated Entity that agrees to assume Sitecore’s obligations under this Agreement. Any attempted assignment or transfer in violation of this Section shall be void and of no force or effect.
- 11.7.Notices. Each party will send notices to the other party to, in the case of Sitecore, the address stated at the beginning of this Agreement, attention Legal Department, and in the case of Affiliate, the contact person at the address given by the Affiliate when registering an opportunity under the Affiliate Program with Sitecore. Delivery of a notice shall be effective upon receipt.Notice may also be sent by facsimile or email and is effective upon confirmation of receipt.
- 11.8.Severability. If any term or provision of this Agreement is adjudicated to be unenforceable, such provision will be deemed changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- 11.9.Force Majeure. Neither Party shall be liable for any delays or failures in performance (other than payment obligations) due to the extent caused by supervening conditions beyond its reasonable control. Both parties hereto agree to use their best efforts to minimize the effects of such failures or delays.
- 11.10.Injunctive Relief; Attorneys’ Fees. The remedy at law for any breach or threatened breach of Sections 4 (Intellectual Property), 5 (Trademarks and logos) and 6 (Confidentiality) shall be inadequate, and in addition to any other remedy available at law, in equity or under this Agreement, the non-breaching party shall be entitled to seek injunctive relief. In any action or proceeding, including arbitration, to enforce any of the terms or provisions of this Agreement or on account of the breach hereof, the prevailing Party shall be entitled to recover, to the extent permitted under applicable law, its costs and expenses, including, without limitation, reasonable attorney’s costs and expenses.
- 11.11.Taxes. Each Party shall be responsible for its own taxes under this Agreement. The Affiliate will be solely responsible for payment of taxes on the Commission they receive. For the avoidance of doubt all Commission paid shall be based on sales revenue less any tax due; however, the Affiliate may still be liable to pay tax on their Commission.Affiliates are solely responsible for the payment of tax on any income generated through the Affiliate Program.
- 11.12.Marketing Practices. Both Parties shall conduct business in an ethical manner, in compliance with applicable law, and Affiliate shall not engage in any illegal or unethical business practices, particularly in promoting or marketing of the Sitecore products under this Agreement, including refraining at all times from making any statements or exhibiting conduct regarding Sitecore and/or its products, that are not truthful or that reflect unfavorably upon Sitecore and/or its products. Affiliate shall not make, nor permit any person or entity to make, any false or misleading representationsoromissionswithrespecttothe Sitecore products.Affiliate shall promptly notify Sitecore of any known or suspected activities regarding a product in violation of this Agreement. Breach of this Section 11.12 will be deemed a material breach of the Agreement and will entitle Sitecore to terminate immediately without notice and withhold any unpaid Commission.
- 11.13.Anti-Corruption and Bribery. Each Party shall comply with all applicable anti-corruption laws and regulations, including without limitation the US Foreign Corrupt Practices Act and the UK Bribery Act of 2010, and each Party undertakes and warrants to the other Party that it shall not, directly or through third parties, give, promise or attempt to give, or approve or authorize the giving of, anything of value to any person or any entity for the purpose of: (a) securing any improper advantage for itself or the other Party; (b) inducing or influencing a public official improperly to take action or refrain from taking action in order for any Party to obtain or retain business, or to secure the direction of business to either; or (c) inducing or influencing a public official to use his/her influence with any government or public international organization for such purpose.
- 11.14.Entire Understanding. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral, concerning the subject matter.
- 11.15.Choice of Law and Jurisdiction. If Sitecore USA, Inc. is the Sitecore contracting entity, this Agreement will be governed by the internal laws of the State of California, without reference to such State’s principles of conflicts of law, and the Parties consent to the personal and exclusive jurisdiction of the federal and state courts of Marin County, California, with regard to any dispute arising out of or related to this Agreement. If Sitecore Corporation A/S is the Sitecore contracting entity, this Agreement will be governed by Danish law without recourse to its conflict of laws principles, and the Parties agree to submit to the exclusive jurisdiction of the Maritime and Commercial Court (Sø- og Handelsretten), or secondarily Copenhagen City Court. The limitation on venue set out in this Section shall not apply to injunctive relief under Section 11.10 which Sitecore may wish to seek.
This Agreement shall fully incorporate by reference the following Exhibit, available on the Affiliate Portal: