ImageEngine Affiliate Referral Program Agreement

This Affiliate Referral Program Agreement (this “Agreement”) contains the complete terms and conditions that apply to your participation in the Affiliate Referral Program (as defined below) for the automated website performance and image optimization CDN solution service branded as “ImageEngine” made available by ScientiaMobile, Inc (“we,” “us,” “our” and “ScientiaMobile”).  By registering for the Affiliate Referral Program, the person registering and the entity on whom it is acting (referred to as “you,” “your” or “Affiliate”” are agreeing to all of the terms and conditions of the “Agreement” below. “Affiliate Referral Program” means the program we manage or control by which participating entities place links on their Affiliate Site in accordance with this Agreement that connects to the ImageEngine registration website and for which a commission may be earned for new ImageEngine subscribers.  “Affiliate Site” individually and collectively means your website, email communications, and software applications.

1. Registration

a. You must sign up for an account to join the ImageEngine Affiliate Referral Program. We will review your application and will either accept or reject your application at our discretion.  Once registered and we have approved your enrollment, you become a participant in the Affiliate Referral Program and agree to be bound by the terms of this Agreement. 

b. For us to pay you your commissions, you must have registered an acceptable payment method within your account.  If you are using your account in connection with your business, your registered payment method must be in your business name and not a personal account (unless your business is a sole proprietorship).  We will make payments to the method provided and are not responsible for any errors you may have made in such payment registration. 

2. Promotion

a. Once you have signed up as an Affiliate under the Affiliate Referral Program, we will provide you with a unique referral link (“Link”) that links to an ImageEngine website to start the enrollment process as a potential subscriber. Whenever you tell a potential new subscriber about ImageEngine and how we can help improve their web performance by optimizing their images, if the new subscriber uses that Link and completes the registration process, we will associate that subscriber with your account. The subscriber must access and complete the registration through the Link; otherwise, we will have no way of tracking or knowing where the new subscriber came from, and we will not be able to pay you your commissions.

b. In promoting the Link, you must: (i) comply with our acceptable use policy in all your promotional activities, (ii) only use the promotional statements we provide you regarding the capabilities of ImageEngine (which you may reasonably modify so long as you do not materially change any factual content or disclaimers contained therein), and (iii) not make any misrepresentative statements relating to ImageEngine or ScientiaMobile or your relation to the either, and (iv) not make any representations or warranties regarding ImageEngine on behalf of yourself or ScientiaMobile.  Our acceptable use policy may change from time to time at our discretion without notice to you (such changes shall apply to all program participants and will not apply solely to you).  It is your responsibility before conducting promotional campaigns using the Link to review the acceptable use policy before such a change to ensure the campaign will comply with the then-current acceptable use policy.

b. To qualify under the Affiliate Referral Program as a subscriber for whom ScientiaMobile will pay a fee under the Affiliate Referral Program, any new subscriber registering using your link must also not have been a previous subscriber to ImageEngine or any of ScientiaMobile’s other products (WURFL, etc.).  Furthermore, you understand that if you breach Section 2(b) or Section 5(a), ScientiaMobile will immediately cease paying you any referral fees for all past subscribers and may immediately terminate this Agreement upon notice to you.

3. Use of ScientiaMobile Trademarks

a. ImageEngine hereby grants to you during the Term (defined in Section 7 below) a non-exclusive, non-transferable, revocable, royalty-free license to establish hyperlinks between your Affiliate Site and the ImageEngine website and to use ImageEngine’s trade names, logos, trademarks and service marks (the “Marks”) solely for marketing and promoting ImageEngine.

b. The foregoing license does not include the right to, and Affiliate will not modify the Marks in any manner, incorporate any of the Marks into any other trademark or service mark, or combine the Marks with any other words, logos, designs, service marks or trademarks. Affiliate will comply with any trademark usage guidelines and instructions provided by ScientiaMobile concerning Affiliate’s use of the Marks. We will have the right to review and monitor Affiliate’s use of the Marks. If there is any non-compliance with such guidelines and instructions, at ImageEngine’s request and direction, Affiliate will, at its sole cost, promptly correct any non-complying use of the Marks. Affiliate will not adopt brands, logos, trademarks, service marks, trade names, or other marks that are the same or confusingly similar to the Marks. Affiliate’s use of the Marks in any advertisement, web page, promotional materials, or other items shall be subject to ScientiaMobile prior review and approval, and Affiliate will furnish to ImageEngine an advance copy of each item. All goodwill arising from Affiliate’s use of the Marks will insure solely to the benefit of ScientiaMobile. Affiliate will at all times maintain a high level of quality for the Affiliate Site.

c. Except as set forth above, we each reserve all rights, title, and interest in our respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks, and other intellectual property rights). Use of Marks except as set forth herein is strictly prohibited.

4. Community Forums

As an Affiliate of the Affiliate Referral Program, you may participate in discussions in the ImageEngine Forums Community. Your participation in these forums and message boards is subject to our Terms of Service.

5. Restricted Activities

a. General Restrictions. Affiliate will conduct its business and activities in a manner that promotes a good, positive image and reputation for ScientiaMobile and ImageEngine. Without limiting the generality of the foregoing, Affiliate will not:

i. use any inappropriate form of promotional, marketing, or advertising activity with your Link or Affiliate Site, which includes the use of any misleading hyperlinks and making any false, misleading, or disparaging representations or statements concerning ScientiaMobile and ImageEngine;

ii. engage in any unfair or deceptive trade practice involving ImageEngine;

iii. participate in any promotion, advertising, marketing, or sale of any imitation of ImageEngine;

iv. include or provide for in any Affiliate Site any page, screen, or social media platform that contains content that advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities; violates intellectual property rights of third parties; or contains or promotes deceptive information;

v. impersonate any ScientiaMobile employee;

vi. use any Marks to mislead potential new subscribers into believing you are endorsed or employed by ScientiaMobile;

vii. use the string “ImageEngine” for any website domain name;

viii. spam or send bulk emails including Links;

ix. use paid advertising, search, or social pages for promoting Links;

x. use its own Link to purchase ImageEngine; and/or

xi. make or authorize any proposal, representation, warranty, guarantee, or communication relating to ImageEngine that is inconsistent with ScientiaMobile’s standard terms and policies or that has not been approved or otherwise authorized by ScientiaMobile in writing.

b. Compliance with Laws. You understand and agree that:

The United States and other jurisdictions’ laws, rules, and regulations (collectively, “Laws”) apply to you and us, and you will comply with and keep ScientiaMobile in compliance with all Laws applicable to you or us or the subscribers to whom you refer to ImageEngine.  Without limiting the generality of the foregoing, you agree to the following:

i. The receipt and use of ImageEngine may be subject to export control and economic sanctions laws of the United States and other applicable government authorities (“Export Control and Sanctions Laws”). You agree to abide by all Export Control and Sanctions Laws as they relate to your access, use, and recommendation of ImageEngine.

ii. You will not, directly or indirectly, access or use ImageEngine if you are located in a jurisdiction where the provision of ImageEngine is prohibited by law (a “Prohibited Jurisdiction”), including Cuba, Iran, North Korea, Syria, and the Crimea region.

iii. You will not allow potential subscribers who are: (A) located in any Prohibited Jurisdiction; or (B) identified on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or subject to any other export control or economic sanctions lists or programs, to register for ImageEngine using your Link.

iv. You represent and warrant that: (A) you are not named on or subject to any government sanctions programs or list of persons or entities prohibited from receiving U.S. exports or engaging in transactions with any U.S. person; (B) you are not located in, or a company registered in, any Prohibited Jurisdiction; and (C) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.

c. Anti-Corruption Compliance. You understand and agree that:

i. You will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others, as they relate to your access, use, and resale of ImageEngine;

ii. You will not, directly or indirectly, offer, promise, or give any payment or anything of value to a government official or any other individual or entity where the intent is to improperly influence any act or decision of the government official or other individual or entity, to obtain or retain business or some other benefit or commercial advantage;

iii. You will not, directly or indirectly, solicit or accept any payment or anything of value from anyone where the intent is to improperly influence any act by you, any third-party acting on your behalf, or ScientiaMobile; and

iv. You acknowledge that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement.

6. Commissions

a. We will pay you a referral fee equal to the then-current commission percentage (presently, 10%, referred to as the “Percentage”) multiplied by the monthly recurring subscription fee actually received from a Qualified Subscriber.  A “Qualified Subscriber” is a subscriber who registered through your Link, is not excluded for a reason otherwise provided herein, has remained a subscriber for at least 60 days, and has not been a subscriber for longer than 24 months (i.e., we pay (presently) on 24 monthly subscription payments. However, that time period may be changed prospectively (it will not apply to past customers) upon written notice to you.  For clarity, monthly recurring subscription fees do not include: (i) any configuration fees paid, (ii) any other professional services fees, (iii) any fees for product support above the standard support provided with a monthly subscription fee, (iv) fees billed but not actually collected or fees that are required to be refunded, and/or (v) taxes or other governmental charges collected on monthly recurring subscription fees. We will pay you based on the amounts we actually collected in the first 60 days as long as the subscriber remains a customer for over60 days.

B. You acknowledge that we offer no-fee trial subscriptions, and we shall exclude any trial subscription term from any calculation of days hereunder.

c. As an Affiliate of the Affiliate Referral Program, we will provide you with access to the Affiliate Referral Program Partner Portal using your login credentials. There, you can see a summary report for all new subscriptions directed from your Link for both paid and trial plans, including information on new subscriber pricing plans and the associated commissions. When a new subscriber enrolls for ImageEngine on a paid plan through your Link, that subscriber will be shown under the “Pending Commissions” section of the Dashboard in the Partner Portal. After the first 60 days, the commission amount will then be shown under the “Due in Next Payment'' section of the Dashboard.  To be clear, we reserve the right to anonymize all subscribers listed in the Affiliate Referral Program Partner Portal so you may see a unique identifier for each subscriber.

d. You must complete and submit accurate tax information to ScientiaMobile through the payment portal (which is operated by a third-party payment provider who you authorize to have access to such information) before commission payments will be issued.  Approved commissions following the first 60-day period will be payable to you within 30 days of the end of each calendar month. Your commission total can be found in the “Due in Next Payment” section of your dashboard and will be paid out when you have a minimum of two subscribers, with at least one new subscriber in the preceding 6-month period. \If we pay your commission in a currency that is not United States dollars, we will convert such commission at an exchange rate that we determine, which may include fees for the conversion.  Notwithstanding the foregoing, if your account is terminated other than for your breach of this Agreement, we will pay your remaining balance on your account once no further amounts can accrue.

e. You, and not ScientiaMobile, will be responsible for paying any applicable taxes and duties that may be imposed with respect to any compensation, commissions, or payments received under or in connection with this Agreement.

f. At ScientiaMobile’s discretion, it may change the Percentage or the length of time for which subscribers’ monthly recurring subscription fees will be paid (currently 24 months) on 30 days advance written notice to you.  For clarity, the change in the Percentage or length of time shall only apply prospectively to future Qualified Subscribers; all Qualified Subscribers who registered prior to such notice shall continue to be calculated and paid on the Percentage and length of time in effect at the time the subscriber first registered. 

g. If you breach this Agreement and ScientiaMobile terminates this Agreement for breach, or if you breach Section 2(b) or 5(a), then ScientiaMobile may stop paying you all referral fees under this Agreement even if they would be otherwise earned.  In all other cases where this Agreement is terminated, ScientiaMobile shall continue to pay for Qualified Subscribers existing at the time of termination for the remainder of their applicable term of payment.

7. Term and Termination

a. The term of this Agreement (the “Term”) will begin upon your acceptance of this Agreement and will end when terminated. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other at least five (5) days written notice of termination.

b. You are only eligible to earn commissions on new subscriptions occurring during the Term and that remain subscribed for at least 60 days as of the effective termination date. ScientiaMobile may, in its sole discretion, pay you commissions for any new subscribers that remain subscribed for 60 days after the effective termination date but has no obligation to do so.

8. Representations and Warranties

Each of the parties hereby represents and warrants to the other that:

a. it has full power and authority to enter into this Agreement and to perform its obligations hereunder;

b. it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; and

c. it will perform its obligations in compliance with all laws, rules, and regulations applicable to its activities pursuant to this Agreement.

9. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

a. ScientiaMobile will remain solely responsible for the operation of the ImageEngie website and ImageEngine, and you will remain solely responsible for the operation of the Affiliate Site. Each party acknowledges that (i) their respective sites may be subject to temporary downtime due to causes beyond their reasonable control, and (ii) it retains sole right and control over the programming, content, and conduct of transactions over its respective site or service.

b. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, IMAGEENGINE AND THE AFFILIATE REFERRAL PROGRAM ARE PROVIDED “AS IS,” AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SCIENTIAMOBILE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR THROUGH COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING (I) THE AMOUNT OF COMMISSIONS AFFILIATE MAY GENERATE DURING THE TERM, AND (II) ANY ECONOMIC OR OTHER BENEFIT THAT AFFILIATE MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.

c. UNDER NO CIRCUMSTANCES WILL SCIENTIAMOBILE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY CLAIMS FOR LOST PROFITS, LOST BUSINESS, OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF YOU OR SCIENTIAMOBILE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. SCIENTIAMOBILE’S  ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER CAUSE OF ACTION, WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO THE AFFILIATE UNDER THIS AGREEMENT IN THE THREE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10. Indemnification

You agree to indemnify, defend and hold harmless us and our affiliates, directors, officers, employees, and agents from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorney’s fees) relating to the operation of any Affiliate Site, a breach of any of your obligations under this Agreement, or the violation of any third party intellectual property rights in respect of your Affiliate Site and activities under this Agreement.

11. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with ScientiaMobile and limits how you can seek relief from us.

a. Except for small claims disputes in which you or ScientiaMobile seek to bring an individual action in small claims court, you and ImageEngie waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement resolved in court. Instead, all disputes arising out of or relating to this Agreement will be resolved through confidential binding arbitration held in the Commonwealth of Virginia in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation (“JAMS”), which are available at www.jamsadr.com and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

b. YOU AND SCIENTIAMOBILE AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO YOU AND SCIENTIAMOBILE AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.

c. You and ScientiaMobile agree that this Agreement affects interstate commerce and that the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. All disputes between ScientiaMobile and you will be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. As limited by the FAA, this Agreement, and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, consolidate more than one individual’s claims, or preside over any proceeding involving more than one individual, all of which are prohibited by this Agreement. You and ScientiaMobile agree that for any arbitration you initiate, you will pay the filing fee, and ScientiaMobile will pay the remaining JAMS fees and costs. For any arbitration initiated by ImageEngine, ScientiaMobile will pay all JAMS fees and costs. You and ScientiaMobile expressly agree that the state and federal courts of the Commonwealth of Virginia shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

d. Any claim related to this Agreement must be filed within one year after the claim arose; otherwise, you and ScientiaMobile no longer have the right to assert the claim.

12. General Provisions

a. You and ScientiaMobile are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture, or employment relationship between you and us.

b. Neither you nor we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform due to any causes or conditions beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.

c. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia, without reference to its conflict of laws provisions. You and ScientiaMobile expressly agree to exclusive jurisdiction in any competent court in the Commonwealth of Virginia.

d. Any notices under this Agreement will be given in writing. Notices may be given via electronic means, including by ScientiaMobile sending an email notification to the address associated with your account, and will be deemed delivered and given for all purposes on the sent date, but, in the case of notices to ScientiaMobile, only if ScientiaMobile has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via postal mail or certified mail, return receipt requested. Notices to ScientiaMobile will be sent to: ScientiaMobile, Attention: Affiliate Referral Program,1875 Campus Commons Drive, Suite #300, Reston, VA, 20191, USA. You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

f. The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.

g. This Agreement represents the entire agreement between you and us with respect to the subject matter covered by this Agreement and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.

h. If any provision of this Agreement is determined to be invalid, unlawful, void, or unenforceable to any extent, such provision will be interpreted to best reflect the parties’ intent, and the remainder of this Agreement will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.

Acceptable Use Policy

Last updated:  

Affiliates are expressly prohibited from engaging in the activities below. Failing to abide by this policy will result in the termination of the Agreement.

1. Email

Affiliates are expressly prohibited from sending spam, defined as unsolicited mass commercial email (UCE) that promotes their Affiliate business. All complaints will be investigated. Affiliates will be required to defend their actions.

Affiliates found to be engaging in spam will be terminated immediately.

A single warning may be issued if (all are met):

• There is no evidence that the email was mass mailed

• The affiliate made no attempt to disguise his/her identity by such means as falsifying their email address,

• The email was uniquely written for the complainant.

• All three criteria must be present to receive a "one-time." A second such occurrence, whether from the same complainant or not, will result in termination.

The complainant may be required to provide additional information to assist us with our investigation.

2. Two-Way E-media (Newsgroups, Forums, Unmoderated Mailing Lists, Twitter-Facebook-Other-Social-Media)

Affiliates are expressly prohibited from posting messages that promote their Affiliate business to unrelated Two-Way E-media and to Two-Way E-media whose charters forbid commercial content. Posting to more than one newsgroup simultaneously is expressly prohibited (even if they are related).

Affiliates may post to Two-Way E-media which permit commercial content relating to Internet marketing.

Affiliates may make up to six posts per day per social platform across all of their accounts on the same platform (where commercial content is allowed). 

NOTE: The affiliate must determine in advance which newsgroups or discussion forums are appropriate for their posts and the policy regarding commercial posts.

All complaints will be investigated, and the Affiliate will be required to defend their actions. Affiliates found to be spamming Two-Way E-media will be terminated immediately. No warnings will be issued. The complainant may be required to provide additional information to assist us with our investigation.

ScientiaMobile may update this document anytime future versions render prior versions obsolete.

What Happens if We Receive a Spam Complaint

If we receive a complaint about an unsolicited email from you, there are three possible outcomes:

1) If the complainant erred and, in fact, the mail turns out to be solicited (ex. complainant had joined an opt-in list but forgot), we will not pursue any action.

2) The "one-time" scenario...

If you did send an unsolicited email (all must be met):

AND

If you had some kind of repetitive, long-standing personal or business relationship with the complainant.

It was solely sent to ONE person or company...

It was an extraordinary marketing email…

If you did not attempt to disguise your "Reply-to" email address...

You get a "one-time warning."

3) If you send any other kind of unsolicited email that does not fit ALL the criteria for the "single chance" scenario, or if you have used up your single chance, your Agreement will be terminated.

Do your research.  Even if you accidentally spam, your Agreement will still be terminated.

Your Affiliate business will not be terminated without a proper investigation. We will ask the complainant for full details, and we will then ask you for an explanation.

We must protect the integrity of our company and all other affiliates by terminating in the event of spam.

What's the bottom line? No spamming.