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This Marketing Affiliate Program Agreement (this “Agreement”) is a binding contract between NinjaOne, LLC, a Delaware limited liability company (“NinjaOne”), and the company that has applied to the NinjaOne Marketing Affiliate Program (the “Program”) through the PartnerStack platform (“You”, or “Your”). This Agreement provides terms and conditions applicable to Your participation in the Program that are in addition to any terms and conditions that You may have agreed to pursuant to an agreement with PartnerStack. By submitting an application to the Program, You agree to be bound by and comply with the terms and conditions of this Agreement, and You represent and warrant that the individual submitting the application has the authority to bind You to this Agreement.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the meanings provided below wherever used in this Agreement.
1.1. “Affiliate” means an entity controlled by, under common control with, or controlling such entity, where control is denoted by having 50% or more of the voting power (or equivalent) of the applicable entity.
1.2. “Applicable Laws” means the federal, state, and local laws and regulations that apply to the activities of each party, respectively, under the Program, including, but not limited to, those relating to advertising, consumer protection, data privacy, and data security, as well as the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”).
1.3. “Approved Social Media Accounts” means accounts You own and operate (or are owned and operated on Your behalf) on appropriate social media and networking websites, applications, and platforms where You may conduct the advertising and promotional activities under the Program, with advanced written approval of NinjaOne in each instance.
1.4. “Commissions” means the commissions You earn as a direct result of Your advertising and promotional activities under the Program.
1.5. “Effective Date” means, if NinjaOne accepts Your Application, the date on which NinjaOne gives You notice of such acceptance.
1.6. “Information Form” means an online form on the NinjaOne Website through which a Visitor submits his or her legitimate contact information to NinjaOne.
1.7. “Link” means an approved hyperlink which links to the NinjaOne Website that NinjaOne authorizes You to display on Your Website.
1.8. “NinjaOne Marks” means the trademarks and service marks belonging to NinjaOne, including, but not limited to, its registered and common law design marks, word marks, and combinations thereof.
1.9. “NinjaOne Website” means the NinjaOne website at www.ninjaone.com (including, but not limited to, web pages under the www.ninjaone.com domain, where applicable).
1.10. “Policies” means the policies, guidelines, and/or other rules made accessible to You by NinjaOne through the PartnerStack platform that apply to Your participation in the Program and/or the performance of Your marketing and promotional activities thereunder, as updated by NinjaOne from time to time.
1.11. “Restricted Keywords” means keywords, search terms, or other identifiers that consist of or include “NinjaOne”, “ninjaone.com”, “NinjaRMM”, or any other NinjaOne Mark, or any variation thereof.
1.12. “Software” means the software and software-as-a-service that NinjaOne licenses to end users under the terms and conditions of the NinjaOne End User License Agreement (“EULA”).
1.13. “Visitor” means a visitor to Your Website, who must be real person.
1.14. “Your Website” means (a) each website owned and operated by You (or on Your behalf) where You conduct advertising and promotional activities under the Program; and (b) if You have received NinjaOne’s written approval to conduct advertising and promotional activities under the Program through another online source, that online source, where applicable.
2. License Grants.
2.1. Advertising and Promotion. Subject to the terms and conditions of this Agreement, NinjaOne grants You a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, worldwide license to advertise and promote NinjaOne and/or its Software to prospective customers through the use of Links on Your Website.
2.2. Trademarks. Subject to (a) the terms and conditions of this Agreement, (b) Your compliance with the NinjaOne Brand Guidelines, and (c) NinjaOne’s advanced written approval in each instance (unless otherwise waived in writing by NinjaOne), NinjaOne grants You a limited, revocable, non-exclusive, nonassignable, non-transferable, non-sublicensable, royalty-free license to use the NinjaOne Marks to advertise and promote NinjaOne and/or its Software during the Term of this Agreement.
2.3. Reservation. Nothing in this Agreement gives You any right, title, or interest in or to the NinjaOne Marks or any other NinjaOne intellectual property, and NinjaOne reserves any and all rights and licenses not expressly granted herein.
3. Representations, Warranties, and Covenants.
As of the Effective Date, You represent, warrant, and/or covenant as follows: (a) You are duly organized, validly existing, and in good standing under the Applicable Laws of Your state or country of origin; (b) You have the requisite power and authority to enter into this Agreement and to perform Your obligations hereunder; (c) You are in compliance and will maintain compliance with all Applicable Laws; (d) there are no prior or pending investigations or proceedings by any governmental agency or regulatory authority which relate to any actual or alleged violation of Applicable Laws by You; (e) You will promptly notify NinjaOne in writing if You become aware of any such investigation or proceeding which relates to the performance of Your activities under this Agreement; and (f) You have in place and will continue to maintain technical and organizational measures that are sufficient to satisfy Your obligations under Applicable Laws (in particular, but not limited to, those related to data privacy and security). In addition, in the event that NinjaOne receives an inquiry, request, or complaint relating to its compliance with Applicable Laws, You agree to cooperate with NinjaOne as reasonably required in its response and/or defense thereof.
4. Your Responsibilities and Restrictions.
4.1. Policies. You shall comply with all Policies. The Policies are incorporated into this Agreement by this reference. Any material breach of a Policy shall be deemed a material breach of this Agreement.
4.2. Goodwill. You shall exercise the licenses granted herein and engage in the activities contemplated herein in a manner that reflects positively on NinjaOne and its Software and refrain from taking any action that would be, or may reasonably be interpreted to be, detrimental to NinjaOne.
4.3. Restricted Keywords. You shall not bid on or purchase Restricted Keywords or otherwise receive any paid search results using the Restricted Keywords. You shall enable negative keyword matching for all Restricted Keywords and shall not use Restricted Keywords in any title, ad copy, display name, or display URL. You shall not own or operate any account or page on a social media or networking website, 3 application, or platform that uses a Restricted Keyword as or within its name or description (or have any such account owned or operated on Your behalf).
4.4. Social Media Restrictions. You may use social media and networking sites to advertise and promote NinjaOne and its Software so long as You use Approved Social Media Accounts to do so. You may not use Links on Approved Social Media Accounts unless NinjaOne has given its advanced written approval in each instance. You shall not post anything on any social media or networking account or page owned or operated by NinjaOne (or on NinjaOne’s behalf) for purposes of directing visitors to Your Website or earning Commissions hereunder.
4.5. Restricted Representations. You shall not make any warranty or representation about NinjaOne or its Software that is inconsistent with or beyond the scope of the NinjaOne marketing materials available on the PartnerStack platform, unless NinjaOne provides advanced written approval in each instance. In addition, You shall not state or claim that: (a) NinjaOne endorses or sponsors You; (b) NinjaOne recommends Your services over those of any other company or person; or (c) You are affiliated or have any special relationship with NinjaOne.
5. Your Website.
5.1. Minimum Standards. At all times during the Term of this Agreement, Your Website shall not display, store, process, or transmit material that: (a) infringes, misappropriates, or uses without consent a third party’s intellectual property or proprietary rights; (b) is abusive and/or promotes violence, hate, or discrimination; (c) is obscene or sexually explicit, or which exploits minors; (d) violates or promotes conduct that would violate any applicable civil or criminal law, or any third‐party rights, including those of publicity or privacy; and/or (e) targets children or violates any applicable laws or governmental regulations related to child protection.
5.2. Required Disclosures. Without restricting Your obligation to comply with Applicable Laws, at all times that You conduct advertising and promotional activities under the Program, You shall make any and all disclosures and/or communications required by the FTC Guides, in the manner required by the FTC Guides.
5.3. Privacy Policy. At all times during the Term of this Agreement, You shall display and maintain on Your Website a privacy policy that meets the requirements of Applicable Laws and otherwise clearly and adequately: (a) describes how Visitors’ information is collected and used; (b) discloses Your use of cookies and similar technologies and provides Visitors options for managing their cookie preferences; and (c) describes the data protection mechanisms used in support of the policy, which must comply with Applicable Laws.
5.4. Appearance. At all times during the Term of this Agreement, Your Website (and any other website or social media account that You own or operate or is owned or operated on Your behalf) may not visually resemble those of NinjaOne nor appear or function in a way that would reasonably indicate to Visitors that You are NinjaOne or a NinjaOne Affiliate.
5.5. NinjaOne Rights. You acknowledge and agree that NinjaOne may: (a) monitor, retain, use, and disclose information about Your Website and Visitors that NinjaOne obtains in connection with Your participation in the Program (except as restricted under Section 9); and (b) monitor, review, and otherwise investigate Your Website to assess Your compliance with this Agreement.
6. Link Requirements.
You may not use any link to direct Visitors to the NinjaOne Website other than the Links provided to You by NinjaOne through the PartnerStack platform. In addition, each Link must operate in accordance with NinjaOne’s instructions, including, but not limited to, the following: (a) when each Visitor clicks the Link, (i) it must take the Visitor directly to the NinjaOne website (i.e., there must be no interstitials, pop-ups, or redirects), and (ii) the Visitor must not encounter any trojan horses, spyware, worms, time bombs, viruses, or other harmful programming routines; (b) the Link may not be framed or co-branded by You; and (c) the Link must incorporate a unique “tag” provided by NinjaOne, and 4 must properly utilize the tagged link format, in order to permit accurate tracking, reporting, and credit for payment of Commissions. You acknowledge and agree that: (d) You will only earn Commissions with respect to activity on the NinjaOne Website that results directly from a properly tagged Link; and (e) NinjaOne will not be obligated to pay You Commissions that result from Links that are untagged, improperly tagged, or are otherwise not in compliance with NinjaOne’s instructions.
7. Commissions and Qualified Leads and Demos.
7.1. Commissions. Subject to the terms and conditions of this Agreement, You shall be entitled to earn Commissions for Qualified Leads and for Qualified Demos, as described below and otherwise in the Program.
7.2. Qualified Leads and Demos. To be a Qualified Lead or Qualified Demo, the lead or demo must meet all of the following conditions:
7.3. Payment of Commissions. Commissions will be paid by NinjaOne to PartnerStack, and PartnerStack shall process and distribute payment to You, less fees, in accordance with the PartnerStack Terms of Use. You acknowledge and agree that NinjaOne may chargeback to You any Commissions paid or credited to You with respect to leads or demos that: (a) were not Qualified Leads or Qualified Demos (i.e., they did not meet the requirements in Section 7.2); (b) were procured fraudulently or in violation of this Agreement or Applicable Laws; and/or (c) were paid in error. Disputes regarding commissions or fees should be submitted in accordance with PartnerStack’s Terms of Use. You acknowledge and agree that, other than Commissions, You have no right to receive any payments or compensation from NinjaOne under this Agreement.
8. Term and Termination.
8.1. Term. If Your Application is accepted by NinjaOne, the term of this Agreement shall begin on the Effective Date and shall remain in effect until terminated as set forth in this Section (the “Term”).
8.2. Termination for Convenience. Either party may terminate this Agreement for any or no reason upon 30 days’ advanced written notice to the other party.
8.3. Termination for Inactivity. If there is no activity on the NinjaOne Website directly resulting from a Visitor clicking on a Link on Your Website for a period of 6 months, this Agreement shall self-terminate upon the expiration of that 6-month period.
8.4. Termination for Cause. NinjaOne may suspend Your access to the Program and/or terminate this Agreement with immediate effect, without penalty, if: (a) You materially breach this Agreement or violate any Applicable Law; (b) NinjaOne reasonably believes that Your participation in the Program may damage its brand or reputation or could subject it to liability; or (c) You have engaged in deceptive, fraudulent, or illegal activity in relation to Your participation in the Program. NinjaOne’s decision to suspend Your access to the Program is without prejudice to its right to terminate this Agreement for the same cause(s) underlying the suspension.
8.5. Effect of Termination. Upon termination of this Agreement, all licenses and rights granted to either party hereunder will terminate immediately, and You shall immediately: (a) cease advertising and promoting NinjaOne and its Software, including, but not limited to, by removing any Links from Your Website; (b) cease using the NinjaOne Marks; and (c) cease using any NinjaOne Confidential Information and, within 10 days of termination, securely destroy or return such Confidential Information to NinjaOne. You shall be entitled to receive payment only of Commissions for Qualified Leads or Qualified Demos that have met all requirements under Section 7 at the time of termination.
9. Confidentiality.
9.1. Definition. “Confidential Information” means any confidential, proprietary, trade secret, and/or non-public information belonging to or in the possession of one party (“Discloser”) and disclosed to the other party (“Recipient”) in relation to this Agreement, either directly or indirectly, in writing, orally, or by inspection of tangible objects, which is either labeled or described as “confidential,” “proprietary” or a similar designation, or which, due to its nature and/or the circumstances surrounding its disclosure, should be reasonably understood as confidential.
9.2. Exceptions. Confidential Information does not include any information that the Recipient can prove (a) was publicly known and/or made publicly available prior to the time of disclosure to Recipient; (b) becomes publicly known and/or available after disclosure to Recipient through no action or inaction of the Recipient; (c) was already in Recipient’s possession at the time of disclosure to Recipient, without confidentiality restriction, as evidenced by its files and/or records; (d) was obtained by Recipient from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; or (e) was independently developed by Recipient without use of or reference to the Confidential Information, in whole or in part, as evidenced by its files and/or records.
9.3. Obligations. Recipient shall not use or disclose the Confidential Information for any purpose other than exercising its rights or performing its obligations under this Agreement, except as otherwise expressly permitted herein. Recipient shall protect the Confidential Information from unauthorized use or disclosure in the same manner that it protects its own Confidential Information but with no less than reasonable care. Recipient may disclose the Confidential Information to its own officers, employees, and contractors only if (a) they need to know such Confidential Information, (b) they are bound by confidentiality obligations at least as restrictive as those set forth herein, and (c) Recipient is and remains liable for any unauthorized use or disclosure of Confidential Information by such officers, employees, or contractors. Recipient shall notify Discloser in writing of any actual or reasonably suspected unauthorized use or disclosure of the Confidential Information promptly and without undue delay. If Recipient is ordered to disclose the Confidential Information by a court, administrative agency, or other governmental body, the Recipient shall promptly notify the Discloser of such order so that it may seek a protective order or otherwise prevent or restrict such disclosure at its own expense.
10. Warranty Disclaimer.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NINJAONE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS, SUITABILITY, OR AVAILABILITY OF THE PROGRAM. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PROGRAM IS PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, NINJAONE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE NUMBER OR AMOUNT OF COMMISSIONS YOU MAY EARN HEREUNDER.
11. Limitation of Liability.
11.1. No Special Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NINJAONE (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, 6 AFFILIATES, AND SUCCESSORS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, NON-COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, STATUTORY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE RELATED TO LOSS OR PRIVACY OF DATA, BUSINESS INTERRUPTIONS, OR LOST PROFITS OR REVENUE, REGARDLESS OF THE FORM OF ACTION, EVEN IF NINJAONE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Damages Cap. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NINJAONE (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND SUCCESSORS) BE LIABLE TO YOU FOR ANY DAMAGES IN RELATION TO THE PROGRAM OR THIS AGREEMENT IN AN AGGREGATE AMOUNT GREATER THAN: (a) THE AMOUNT OF COMMISSIONS YOU HAVE BEEN PAID HEREUNDER IN THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, OR (b) $5,000, WHICHEVER IS GREATER. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE ALLOCATIONS OF RISK AND FIND THEM REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. Indemnification.
12.1. By You. You shall indemnify, defend, and hold harmless NinjaOne (including its directors, officers, employees, contractors, agents, Affiliates, and successors) from and against any and all thirdparty claims, demands, losses, liabilities, and costs (including, but not limited to, reasonable attorney’s fees and costs) arising from or relating to: (a) Your participation in the Program; (b) Your breach of this Agreement or violation of Applicable Law; (c) Your infringement of third-party intellectual property or privacy rights; and/or (d) Your willful misconduct or fraud.
12.2. By NinjaOne. NinjaOne shall indemnify, defend, and hold You harmless from and against any and all third-party claims, demands, losses, liabilities, and costs (including, but not limited to, reasonable attorney’s fees and costs) arising from NinjaOne’s infringement of third-party intellectual property rights directly resulting from the use of the NinjaOne Software by any Visitor with respect to whom You have earned Commissions.
The foregoing obligation does not apply: (a) with respect to the Software or components thereof which have been: (i) supplied other than by NinjaOne; (ii) modified in whole or in part in accordance with any third party’s specifications; (iii) modified by any third party after provisioning by NinjaOne; or (iv) combined with other products, processes, or materials where the alleged infringement relates to such combination; (b) where the Visitor continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (c) where the Visitor’s use of the Software is not in strict compliance with the EULA. This Section states NinjaOne’s entire liability (and shall be Your sole and exclusive remedy) with respect to infringement claims.
13. Miscellaneous.
13.1. PartnerStack Agreements. Each party acknowledges that it may be a party to an agreement with PartnerStack. You acknowledge that NinjaOne is not an agent or representative of PartnerStack, is not a party to any agreement You may have with PartnerStack, and will be in no way responsible for the performance of PartnerStack.
13.2. Relationship; Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries of this Agreement.
13.3. Modifications. NinjaOne reserves the right to modify the terms and conditions of this Agreement in its sole discretion at any time by posting the modifications on the PartnerStack platform. The modifications shall become effective immediately upon being posted. If You do not agree with a 7 modification, Your sole recourse is to terminate this Agreement. Your continued participation in the Program after modification of this Agreement constitutes Your binding acceptance of such modification.
13.4. Waivers. Except as otherwise provided in Section 2.2(c), no waiver of rights under this Agreement shall be effective unless in writing signed by an authorized representative of each party. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
13.5. Injunctive Relief. Each party agrees and acknowledges that certain breaches of this Agreement could cause irreparable harm for which there is no adequate remedy at law, and, in the event of such breach, that the non-breaching party, in its discretion, may seek injunctive relief to protect its rights without the need to post a bond or make a special showing. These rights are in addition to any other remedies provided by law or in equity.
13.6. Force Majeure. Neither party shall be liable to the other party for failure to perform its obligations hereunder to the extent that such failure is caused by an event beyond the reasonable control of the party, provided that the party gives prompt written notice to the other party of such event and makes best efforts to promptly eliminate the effect thereof.
13.7. Attorney’s Fees. In the event of litigation between the parties concerning this Agreement, the prevailing party in the litigation shall be entitled to recover its reasonable attorney’s fees and costs from the other party.
13.8. Governing Law and Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of Texas, without regard to the choice or conflicts of law provisions of any jurisdiction. Any dispute, action, claim, or cause of action arising out of or in connection with this Agreement or the Integration shall be subject to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas, and the parties irrevocably submit to the personal jurisdiction of such courts.
13.9. Notice. Any notice required to be given under this Agreement shall be given as follows and shall be deemed received on the date of delivery: If to You, by email to the email address provided in association with the Application submitted on Your behalf. If to NinjaOne, by email to [email protected].
13.10. Severability. If any part of this Agreement is found void and unenforceable, it will not affect the remainder of the Agreement, which shall remain valid and enforceable according to its terms.
13.11. Assignment. You may not assign any rights under this Agreement without the prior written consent of NinjaOne, which shall not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Subsection shall be null and void. Otherwise, this Agreement shall be binding upon and inure to the benefit of both parties and their successors and permitted assigns.
13.12. Survival. Any provision of this Agreement that, by its nature, should survive any expiration or termination of this Agreement, shall so survive.
13.13. Electronic Transaction. The parties agree that this Agreement may be formed, executed, and/or delivered by electronic means, including the use of electronic signatures and/or electronic agents.
13.14. Entire Agreement. This Agreement embraces the full, complete understanding of the parties with regard to the subject matter hereof. All prior or contemporaneous representations, understandings, and agreements between the parties regarding the subject matter hereof, whether written or oral, expressed or implied, are superseded by this Agreement and shall be of no effect.
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