(last updated: April 19, 2016)
Welcome to the Everchron Affiliate Program!
Participation in the Affiliate Program (the “Program”) of Icebox Inc., a Delaware corporation d/b/a Everchron (“Company,” “Everchron”, “we”, or “us”) is contingent upon your acceptance of these Terms & Conditions (the “Agreement” or the “Terms”), which you should read carefully, as they form a binding contract between you or the organization you represent (“you” or the “Affiliate”) and Everchron. By registering for the Program, you agree to be bound by these Terms. So, if you do not agree, you may not register.
From time to time, Affiliate may refer prospective customers (each a “Prospective Customer”) to Everchron as potential subscribers of our case management platform (the “Everchron Software”). A Prospective Customer shall only qualify if each of the following conditions is met:
Everchron is free to choose whether to accept a Prospective Customer, in its sole discretion. If Everchron accepts a Prospective Customer, Everchron will promptly inform Affiliate of such acceptance, as well as the scope of eligibility for Referral Fees (as defined below) of such Prospective Customer (the “Scope”), which shall be determined in Everchron’s reasonable discretion, but typically will be as-follows:
If a Prospective Customer becomes a customer of Everchron within six (6) months of the date of the Submission (a “Referred Customer”), Everchron shall pay to Affiliate five percent (5%) of the net revenue received by Everchron from such Referred Customer within the initial eighteen (18) months of such Referred Customer’s agreement to license the Everchron Software pursuant to Everchron’s standard terms and conditions (the “Referral Fees”), subject to the following conditions:
Affiliate is not obligated to make any specific number of referrals to Everchron, and Everchron is not obligated to accept any particular Prospective Customer from Affiliate. Whether to accept a Prospective Customer shall be in Everchron’s sole discretion.
We have certain rules for our Affiliates. If you break any of these Rules, you may be terminated from the Program and forfeit any Referral Fees you might otherwise be due:
Affiliates are prohibited from taking any action that could be considered impersonating Everchron or violating our intellectual property rights in order to earn Referral Fees (or for any other purpose). This explicitly includes, but in no way is limited to, purchasing keyword advertisements and impersonating Everchron in such advertisement.
Everchron owns the Everchron Software and owns or is a licensee of all intellectual property related to the Everchron Software. Affiliate does not receive any right, title, or interest to the Everchron Software or any intellectual property under this Agreement and hereby disclaims any such right, title, and interest.
Affiliate further represents and warrants that it has the power and authority to enter into this Agreement and perform its obligations hereunder, and that doing so will not violate or breach any agreement to which Affiliate is bound, or any law, order, rule or regulation.
Affiliate agrees to indemnify and hold Everchron harmless from and against any claims, damages, demands, suits, obligations, judgments, liens, fines, fees, penalties, costs and expenses (including payment of reasonable attorneys’ fees and other costs of litigation as they are incurred) arising out of or related to Affiliate’s or its agents or employees acts or omissions, including without limitation any third party claims (including claims by Affiliate’s customers). Everchron shall have the right to control the defense of any such claims, including the right to select attorneys and expert witnesses of its choice.
Affiliate (“Recipient”) will maintain Everchron’s (“Discloser”) Confidential Information (as defined below) as confidential, and will not use the same (except in furtherance of Recipient’s obligations under this Agreement), or disclose it to any third party. Recipient will also provide prompt notice to Discloser of any legal or governmental demand for any Confidential Information, and will reasonably cooperate with any lawful effort to resist and/or limit any such demand. “Confidential Information” means information regarding technical data, processes and procedures, design specifications, database infrastructure, software and firmware, plans or models for research, development, new products, marketing and selling strategies and plans, business plans, budgets, licenses, pricing policies, costs, supplier, vendor, client and customer lists, financial records, general ledgers, balance sheets, profit and loss statements, accounting worksheets, notes, financial and accounting information, data, plans, reports, and pricing information. Confidential Information does not include information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (b) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (c) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this Agreement; or (d) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EVERCHRON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. EVERCHRON SHALL NOT HAVE ANY OBLIGATION TO INDEMNIFY OR DEFEND AFFILIATE OR AFFILIATE’S CUSTOMERS IN CONNECTION WITH ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO AFFILIATE’S OR AFFILIATE’S CUSTOMERS’ USE OF THE EVERCHRON SOFTWARE.
IN NO EVENT WILL EVERCHRON’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF THE AMOUNT PAID BY AFFILIATE TO EVERCHRON UNDER THIS AGREEMENT OR $10,000. EVERCHRON WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THIS SECTION APPLIES EVEN IF ANY INJURY WAS THE RESULT OF EVERCHRON’S NEGLIGENCE, EVEN IF AFFILIATE OR AFFILIATE’S CUSTOMERS ADVISES EVERCHRON IN ADVANCE OF THE POSSIBILITY OF THE INJURY IN QUESTION AND EVEN IF THAT INJURY WAS OTHERWISE FORESEEABLE, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE.
Either party may terminate this Agreement for reasons other than breach by providing 30 days’ written notice to the other party, and, in such case, Referral Fees shall nonetheless be paid with respect to Referred Customers who have executed agreements with Everchron prior to such termination. Everchron may also terminate this Agreement immediately upon written notice to Affiliate if Affiliate breaches any of these Terms (or takes any other action that is harmful to Everchron), in which case no further Referral Fees shall be due or paid.
We reserve the right to revise the Terms from time to time. We will date and post the most current version of these Terms on the Everchron website, and such changes will take effect immediately; provided, that, if we make any changes that materially effect your rights or obligations, we will provide notice to you via email (to the email address we have on file), and you may choose to opt out of the Program (as directed in the correspondence we send) rather than accept the changes.
The parties are independent contractors. Nothing contained herein shall be deemed to create an agency, joint venture or partnership relation between the parties hereto. It is understood and agreed that you are not, by reason of this Agreement or anything herein contained, constituted or appointed the agent or representative of Everchron for any purpose whatsoever, nor shall anything herein contained be deemed or construed as granting to you any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of Everchron, or to bind Everchron in any way or manner whatsoever. Before any Affiliate will be paid Referral Fees, the Affiliate must submit to Everchron a properly completed and signed W-9 (or other appropriate documentation as requested by Everchron). Each Affiliate acts as an independent contractor and as such is responsible for any or all United States, state, or foreign income taxes, fees, and any other tax liabilities that affect or concern sales in your state or location. It is the Affiliate’s sole responsibility, and not the responsibility of the Everchron, to take any steps necessary to recover these sums under the any applicable tax code and other applicable laws. As and when applicable, Affiliates will receive 1099 forms from Everchron.
The law of the State of California, ignoring its law of conflicts of law, shall govern any dispute arising out of or related to this Agreement or Affiliate’s or Affiliate’s customers’ use of the Everchron Software.
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE SUBMITTED TO FINAL AND BINDING ARBITRATION, PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR IN LOS ANGELES COUNTY, CALIFORNIA, ON AN INDIVIDUAL BASIS, AND NOT AS A REPRESENTATIVE OF OR PARTICIPANT IN A CLASS ACTION.
This is the entire agreement between the parties and supersedes all prior agreements and representations. Neither party has relied on any representation not expressed in this Agreement in deciding to enter into this Agreement. No statements, writings or representations by any Everchron representative or personnel will serve to amend or supersede these Terms unless expressly so stated in writing and signed by an authorized officer of Everchron.
If any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be unenforceable, such provision shall be modified to the minimum extent necessary to render it enforceable, or, if incapable of such modification, shall be severed herefrom, and the remainder of this Agreement shall be enforced.
Affiliate may not assign this Agreement or its rights, or delegate its duties hereunder without Everchron’s express written consent. Everchron may assign this Agreement and delegate its duties hereunder, in whole or in part, without notice, and this Agreement shall remain in full force and effect. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and assigns.
You can reach us at:
11111 Santa Monica Blvd., Suite 225
Los Angeles, CA 90025