Zenfolio Referral Program Terms and Conditions
This Zenfolio Referral Program Agreement (“Agreement”) is entered into by Zenfolio, Inc. (“Zenfolio”) and the referring party participating in this Agreement (“Participant”). This Agreement governs Participant’s participation in the Zenfolio Referral Program described herein (the “Program”).
Participant accepts these terms and conditions of this Agreement by participating in the Program. By participating in the Program and accepting the terms and conditions of the Agreement, Participant represents and warrants that Participant: (i) has full legal authority to enter into this Agreement; (ii) is at least 18 years old; (iii) has a primary place of business or residence in the United States of America and has a valid United States tax ID number; (iv) is not a government official, government owned or controlled entity, or an employee of such, (v) is not a political party or candidate; (vi) is not a Zenfolio representative, agent, or employee (vii) has read and understand the Agreement, and (viii) agrees to the terms and conditions of this Agreement (collectively, “Participant Representations”). Zenfolio shall not issue honor or pay any Referral Fees, and Zenfolio otherwise reserves its rights, including as set forth in Section 5, below, if Zenfolio determines that Participant is in breach of, or has not complied with, the terms of this Agreement, including, but not limited to, the Participant Representations. If, either by law or by the terms hereto, you do not have authority to enter into this Agreement, or if you do not agree to the terms of this Agreement, do not participate in the Program.
ANY DISPUTE BETWEEN YOU AND US, EXCEPT FOR SMALL CLAIMS, IS SUBJECT TO A CLASS ACTION WAIVER AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION IN THIS AGREEMENT AS IT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT.
“Custom URL” means the unique URL to be provided by Zenfolio to Participant and which will correlate Eligible Referrals submitted by Participant to Participant’s account.
“Eligible Referral” means an eligible net new customer lead for the direct online purchase of the Services directly from Zenfolio,and excludes Ineligible Referrals (defined below), even if they otherwise meet the terms of this definition.
“Zenfolio Services” or “Services” means the Zenfolio ProSuite and PortfolioPlus Plans, generally sold by Zenfolio as Zenfolio and further described here: https://zenfolio.com/features/compare-by-plan/ (“Services URL”). Such description of services as set forth in the Services URL (including branding of such Services), may be updated by Zenfolio from time to time. The Zenfolio Portfolio Plan is excluded from the Program.
“Ineligible Referrals” means government officials, government owned or -controlled entities and any of their employees, political parties and candidates, Services customers of resellers or affiliates, any other individuals or entities already in Zenfolio’s systems, any fake account, any duplicate account of an otherwise Eligible Referral, Zenfolio representatives, agents or employees, and any individual, business or other entity whose residence or principal place of business is not located in the United States of America.
“Referral” is a new customer lead for Services submitted by Participant, via its Custom URL, to Zenfolio.
“Referral Fees” means the fees to be paid by Zenfolio to Participant for Eligible Referrals that result in a Valid Transaction.
“Valid Transaction” is a closed sale for Services originating through a Participant’s Custom URL and which is made online directly between an Eligible Referral and Zenfolio in compliance with the requirements set forth in this Agreement for payment of Referral Fees.
2. Program Overview. In compliance with this Agreement Participant will promote the Services only to Eligible Referrals. Participant will not market the Services to any Ineligible Customers. Zenfolio will provide Participant with a Custom URL for the purpose of correlating any Eligible Referrals resulting in a Valid Transaction under this Agreement. As applicable, and subject to the requirements herein, Participant may include on its website and in its marketing materials for the Services the Custom URL provided by Zenfolio. A Valid Transaction must always originate from Participant’s Custom URL to qualify for Referral Fees.
3. Distribution of Custom URL. Participant will use best efforts to distribute the Custom URL: (a) only to Eligible Referrals; and (b) only after Zenfolio has approved the distribution by providing Participant with the Custom URL. All marketing materials created by Participant (including, without limitation, the text of email distributions or website content, if any) must be compliant with the terms and conditions of this Agreement and all applicable marketing, privacy and data protection laws and governmental regulations.
4. Compliance. In addition to the other legal requirements in this Agreement, Participant expressly agrees to comply with the following:
- 4.1. Anti-Bribery Laws and Reporting. Participant will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Participant will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. If Participant becomes aware of suspicious, illegal or fraudulent activity occurring in relation to this Agreement, Participant will report the suspicious or fraudulent activity to Zenfolio within 24 hours of identifying the suspicious or fraudulent activity by sending an email to [email protected]
- 4.2 Acceptable Use Policy. Participant will not send, post, transmit or otherwise use any Zenfolio provided content, including the Zenfolio name or the Services, in connection with any materials, sites or otherwise that: (i) will generate or facilitate unsolicited bulk commercial emails; (ii) will, or otherwise encourage, the violation of the legal rights of others; (iii) is for an unlawful, invasive, infringing, defamatory, or fraudulent purpose; (iv) contains obscene or pornographic content; or (v) Zenfolio determines, in its sole discretion, is not consistent with its business plans, values, or reputation.
- 4.3 Certification. Participant represents, warrants and certifies to Zenfolio that: (i) it has legal authority to enter into these terms and participate in the Program; (ii) each Referral submitted by Participant will be reasonably made in good faith as an Eligible Referral; (iii) it will comply with all applicable laws and governmental regulations, including without limitation, as described in this Section 4 above; and (iv) it will comply with the Acceptable Use Policy, as described in this Section 4 above and all other terms of this Agreement.
5. Modification of Terms; Termination of Program. Zenfolio may at any time and in its sole discretion: (i) modify or update the terms of the Program or this Agreement, and will make such modified or updated terms available in writing by email, (ii) terminate or end the Program (iii) revoke a Participant’s account, and/or terminate Participant’s participation in the Program in its entirety. If Zenfolio provides Participant with an updated Custom URL, Participant agrees will begin using, and will be subject to, such updated versions no later than 30 days after receiving them.
6. Brand Features. Each party will own all right, title and interest to their respective trade names, trademarks, service marks, logos, domain names, copyrights, and other intellectual property, including those that it may otherwise develop or acquire from time to time (“Brand Feature(s)”). Subject to the terms and conditions of the Agreement (including without limitation the following sentence), Zenfolio grants to Participant a nonexclusive and non-sublicensable license during the Term (defined below) to display Zenfolio’s Brand Features only to the extent Brand Features are provided by Zenfolio for use with the Program and solely for the limited purpose of promoting the Services consistent with this Agreement.
Subject to the terms and conditions of the Agreement, Participant grants to Zenfolio a nonexclusive and non-sublicensable license during the Term to display Participant’s Brand Features solely for the purpose of marketing the Program or as otherwise mutually agreed upon (email permitted).
- 7.1 Referral Fees. Zenfolio will pay Participant a one-time Referral Fee for each Eligible Referral’s end user that results in a Valid Transaction. A Valid Transaction will only take place when an Eligible Referral: (a) registers online directly with Zenfolio using a valid payment instrument for the purchase of Services; (b) purchase originates from a Custom URL correlating to Participant’s account; (c) does not already have, directly or indirectly, a Services subscription; (d) has been invoiced for, and from whom Zenfolio has received payment for, at least a minimum period of 90 days for a subscription on the same primary Services; and (e) where all the foregoing occurs during Participant’s period of participation in the Program. Participant will be notified of Referral Fee by email. Amount of Referral Fee will be set at Zenfolio’s sole discretion. Zenfolio may, at its sole option, prospectively increase or decrease Referral Fees amounts by providing written notice (email/electronic communication permitted) to Participant. Zenfolio reserves the right, in its sole discretion not to pay any Referral Fees to Participant where Zenfolio determines Participant’s actions are not consistent with the intent of this Program.
- 7.2. Payment Process. Zenfolio will pay Participant the Referral Fees in the form of an Amazon Gift Card. Restrictions may apply. Amazon is not a sponsor of this promotion. Except as required by law, Amazon Gift Cards cannot be transferred for value or redeemed for cash. The Referral Fees above are exclusive of taxes, and Zenfolio might withhold or charge taxes if determined by law. Referral fees will be issued to Participant on a monthly basis. All amounts payable under this Agreement (whether by GCs or otherwise) are in U.S. Dollars unless Zenfolio notifies otherwise.
Participant is solely responsible for ensuring its account information is accurate and current. Zenfolio will not be responsible for any payments not received due to Participant failing to provide accurate and complete account information for payment, or any other relevant or required information.
Zenfolio reserves the right, in its sole discretion, to change the terms and conditions of the payment process to Participant.
8. Restrictions. Participant will not allow any third party to: (a) frame, minimize, remove, or otherwise inhibit, the full and complete display of any Zenfolio web page; (b) cause any hyperlinks to web pages on the Zenfolio web site to create a new browser window; or (c) otherwise display Zenfolio web pages or Brand Features in a distorted or diluted fashion.
9. Term; Termination. The term of this Agreement (“Term”) will continue until terminated by either party as provided herein. Except as otherwise set forth in Section 5, above, either party may terminate this Agreement immediately with or without cause upon written notice to the other party (email notice permitted). Upon any termination or expiration of this Agreement, all licenses and rights granted will terminate and each party will have no right to use the Brand Features of the other party. In the event of a termination, Participant will only receive Referral Fees that were earned in full for a Valid Transaction that occurred prior to the effective termination date. Termination notices to Zenfolio must be sent via email to [email protected]
10. Confidentiality. Participant may not disclose the terms, conditions or existence of any non-public aspect of the Program to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with law.
11. Disclaimers; Limitation of Liability. ZENFOLIO DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANT-ABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM AND CUSTOM URL IS PROVIDED “AS IS” AND AT PARTICIPANT’S OPTION AND RISK AND ZENFOLIO DOES NOT GUARANTEE ANY RESULTS.
PARTICIPANT EXPRESSLY UNDERSTANDS AND AGREES THAT ZENFOLIO SHALL NOT BE LIABLE TO PARTICIPANT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ZENFOLIO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING OR ARISING FROM OR OTHERWISE RELATING TO THIS AGREEMENT OR PARTICIPANT’S PARTICIPATION IN THE PROGRAM. TO THE FULLEST EXTENT POSSIBLE BY LAW, ZENFOLIO MAY NOT BE HELD LIABLE FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE) IN THE AGGREGATE AMOUNT OF MORE THAN THE AMOUNT PAID BY ZENFOLIO TO PARTICIPANT UNDER THIS AGREEMENT IN THE 3 MONTHS BEFORE THE DATE OF THE ACTIVITY GIVING RISE TO THE FIRST CLAIM.
12. Indemnification. Participant will defend, indemnify and hold harmless Zenfolio, its affiliates, parent companies, subsidiaries, shareholders, directors, officers employees, attorneys and agents against all claims, actions, demands, liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (a) Participant’s participation in the Program; (b) Participant’s website(s), Participant marketing activities, Participant Brand Features and Zenfolio’s use of any Participant content (provided that such use complies with the requirements of the Agreement); (c) Participant’s violation of any applicable law; and (d) Participant’s breach of any representation or warranty in this Agreement.
13. Representations and Warranties. In addition to any other representations and warranties contained in this Agreement, including, but not limited to, the Participant Representations, Participant warrants that (a) Participant will use all information provided by Zenfolio (including without limitation the Zenfolio Brand Features) in a manner that complies with applicable law; (b) Participant will clearly and conspicuously display the text of the applicable terms and conditions for Incentives provided to Customers in accordance with this Agreement; and (c) Participant will conduct all activities in furtherance of this Agreement in accordance with applicable law.
14. Governing Law; Binding Arbitration and Class Action Waiver; Forum.
14.1 Governing Law. ALL CLAIMS ARISING OUT OR RELATING TO THIS AGREEMENT, THE PROGRAM OR ANY RELATED ZENFOLIO PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT (“Dispute”) WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, ’WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAWS RULES.
14.2 Binding Arbitration and Class Action Waiver.
PLEASE READ THIS PROVISION CAREFULLY, AS IT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT.
There may be instances in which disputes arise between you and Zenfolio. PARTICIPANT AND ZENFOLIO AGREE THAT PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS.
Neither Participant nor Zenfolio will seek to have a dispute heard as a class action or private attorney general action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties hereto agree not to, and expressly waive any right to, file a class action or seek relief on a class basis. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitrations or proceedings.
Participant and Zenfolio agree to arbitrate, as provided below, all disputes between the parties that are not resolved informally, except disputes relating to the ownership or enforcement of intellectual property rights. “Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and us concerning the Program or this Agreement, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. The parties hereto empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including, without limitation the arbitrability of any dispute, and any claim that all or any part of this Agreement are void or voidable.
a. In the event of a dispute, Participant and Zenfolio agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. The claiming party must send to the other party a notice of dispute, which is a written statement that sets forth the name, address, and contact information of the party giving the notice, detailed factual information sufficient to evaluate the merits of the claiming party’s individualized claim, and the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. You must send any notice of dispute by email to [email protected], Attn: Legal Department. We will send any notice of dispute by email to you at the contact information we have for you.
b. Participant and Zenfolio will attempt to resolve a dispute through informal negotiation within sixty (60) days beginning from the date the notice of dispute is sent. This informal negotiation requires an individual meet–and-confer in person, telephonically, or via videoconference that addresses only the dispute between you and us. If you are represented by counsel, your counsel may participate in the conference, but you will also need to individually participate. Zenfolio will participate in the conference through one or more representatives, which may include our counsel. After the end of the sixty (60) day informal negotiation period and not before, and only after the completion of the dispute resolution conference with respect to a claim, Participant or Zenfolio may commence an arbitration proceeding regarding that claim. Alternatively, Participant may litigate, subject to the choice of forum clause below, a dispute in small claims court immediately if the dispute meets the requirements to be heard in small claims court and you proceed only on an individual basis, whether or not you first negotiated informally or completed a dispute resolution conference. However, nothing in this paragraph is intended to prohibit the parties from engaging in informal communications to resolve the initiating party’s claims before, during, or after any dispute resolution conference or filing in small claims court.
c. If Participant, on one hand, and Zenfolio, on the other, do not resolve a dispute by informal negotiation or in small claims court, the dispute shall be resolved by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. PARTICIPANT IS GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. Arbitration will be administered by JAMS Mediation, Arbitration and ADR Services (“JAMS”) in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions about how to initiate an arbitration are available at www.jamsadr.com or 1-800-352-5267.
Arbitration may be conducted in person, through the submission of documents, by phone, or online. Proceedings that cannot be conducted through the submission of documents, by phone, or online, will take place in Santa Clara County, California. Participant and Zenfolio agree to submit to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator may award damages to Participant individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
In accordance with the JAMS Rules, the party initiating the arbitration (either you or Zenfolio) is responsible for paying the filing fee. If the arbitrator issues Participant an award of damages and: (a) that award is greater than the amount of our last written settlement offer; or (b) if we did not make a settlement offer, then we will pay for any JAMS Case Management Fees and all professional fees for the arbitrator’s services, and will reimburse you for the filing fees you incurred in connection with the arbitration. However, if the arbitrator finds that either the substance of your claim or the relief sought in your claim was frivolous or was brought for an improper purpose (as measured by the standards described in Federal Rule of Civil Procedure 11(b)), to the extent permitted by law, we will have the right to seek recovery of any JAMS Case Management Fees and all professional fees for the arbitrator’s services that we incurred in connection with the arbitration. You would have the same right.
Except as provided above with respect to jurisdiction in Santa Clara County, California, nothing in this arbitration agreement shall be construed as consent by Zenfolio or its affiliates to the jurisdiction of any other court with regard to disputes, claims or controversies unrelated to the Program or this Agreement.
If you have questions or concerns about the meaning of any provision of this arbitration agreement, please feel free to seek the counsel of an attorney. We thank you for understanding why it is important that we agree on the process for addressing disputes.
14.3 Choice of Forum. Participant agrees that any action at law or in equity arising out of or relating to this Agreement that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in the County of Santa Clara in the State of California, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.
15.1. Notices. All notices, unless otherwise stated herein, must be in writing and addressed to the attention of the other party’s Legal Department (if any) and primary point of contact. Notice will be deemed given when delivered (a) when verified by written receipt if sent by personal courier, overnight courier or mail or (b) when verified by automated receipt of electronic logs if sent by facsimile or email. Notices to Zenfolio shall be sent to [email protected] Notices to Participant shall be sent to email address provided by Participant. Participant shall be responsible for updating any contact information.
15.2. Non-Assignment. Participant will not assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, and any attempt to do so will be null and void.
15.3. No Third-Party Beneficiaries. The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
15.4. Independent Contractors. The parties are independent contractors and the Agreement does not create any agency, partnership, or joint venture.
15.5. No Waiver. Failure to enforce any provision will not constitute a waiver.
15.6. Unenforceable Terms. If any provision is found unenforceable, the balance of the provisions will remain in full force and effect.
15.7. Survival. In the event of any termination or expiration of the Agreement, Sections 5, 9, 10, 11 and 12 shall survive.
15.8. Entire Agreement. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Except as otherwise specified herein, any amendments must be in writing and executed by both parties (electronic form acceptable).