This Affiliate Agreement (hereinafter “Agreement”) contains the complete terms and conditions of the agreement between you (hereinafter “Affiliate”) and DataScope SpA. (hereinafter “DataScope”), a company established and existing under the laws of the Region of Santiago in Chile and maintaining its principal place of business at Av. Libertador Bernardo O’Higgins 1302, Office 70 Santiago, Chile regarding your participation in the DataScope Affiliate Program (the “Program”).
1. Goals and Limitations of this Agreement
1.1.The goal of the Affiliate in the context of this Agreement is to find prospective clients (hereinafter “Client”), refer them to DataScope, and have such Clients enter into an agreement with DataScope for the use of the DataScope services (hereinafter “Referral”).
1.2. The Affiliate is free to choose the means and techniques of contacting and communicating with prospective clients, including organizing marketing events and running web and email campaigns, displaying an Affiliate-specific promotional code provided by DataScope. However, the Affiliate may not:
use the Program for any illegal or unauthorized purpose. You must not, in the use of the Program, violate any laws (including but not limited to copyright laws) in any relevant jurisdiction; add “DataScope”, and “mydatascope.com”as negative keywords in any paid search activity, in order to avoid any broad-matching issues; purchase or register any URLs with the DataScope brand name or misspelled words as the web address; use “DataScope” (including misspells and variations) as a sub-domain or sub-folder without a written permission by DataScope (for example, www.myDataScope.yoursite.com);use DataScope banners or links as pop-ups or pop-unders to Affiliate’s or a third party’s site; bid or appear on brand searches, misspellings or derivatives of “DataScope”;bid or appear on extended or hybrid brand searches of “DataScope” (for example DataScope voucher code, DataScope discount code);issue any press release regarding DataScope or this relationship, unless specifically agreed between the parties; in any manner misrepresent or embellish the relationship between DataScope and Affiliate (for example, claim that Affiliate develops DataScope services, is part ofDataScope or in any relationship with DataScope or any other person or entity, except as agreed between the parties);use fraudulent, illegal, or overly aggressive or questionable sales or marketing methods; display information regarding DataScope and the special terms provided in a format that is accessible by Google search, i.e. the page must be blocked from search indexing, meaning that the page must have a *no index* meta tag within its HTML code.
1.3 DataScope will determine the prices to be charged for services sold under this Program in accordance with our own pricing policies. Services’ prices and availability may vary from time to time. If Affiliate chooses to display DataScope services’ prices on his/her own website, the Affiliate should keep this information up-to-date with the prices indicated on DataScope 's website (https://www.myDataScope.com/pricing).
1.4. Any violation of this Agreement may result in, among other things, termination or suspension of your rights to be an Affiliate and forfeiture of any outstanding affiliate referral fee payments earned as a result of or after the violation.
2. Application process
2.1.When you apply for the Program, you must:
select Affiliate or Expert tier on DataScope's website (https://affiliates.mydatascope.com/);provide accurate answers in the requested fields in the Program signup form; agree to the terms and conditions of this Agreement.
2.2.DataScope may request additional information about you in order to make sure that you qualify for the Program. At a minimum, Affiliates must be familiar with the DataScope service portfolio.
2.3.DataScope is under no obligation to accept you as an Affiliate and may refuse your application for any reason.
2.4.Upon acceptance of the terms stipulated in this Agreement and Addendum A, DataScope will activate your Affiliate account at DataScope (“Affiliate Account”).
3.1.Upon activation of the Affiliate Account, you will have the opportunity to earn a fee for referring Clients to DataScope (hereinafter “Referral Fee”) subject to the terms and conditions provided in this Agreement.
3.2.You will be entitled to a Referral Fee only if the Clients you refer (hereinafter “Referred Client”):
sign up for DataScope services using a specific referral code or link or cookie-based link provided by DataScope; conclude an agreement for using the services provided by DataScope (hereinafter “Client Agreement”);pay for DataScope’s services.
3.3.Unless otherwise agreed upon, the Referred Clients will have thirty (30) days to use the DataScope service as a free trial as opposed to the standard 14-day free trial period, but only in case they meet the conditions listed in Section 3.2 above.
3.4 If the Referred Client signs up for DataScope services by going to DataScope’s website directly, such Referred Client will not be associated with the Affiliate who referred it to DataScope, and therefore the Affiliate will earn no Referral Fee.
3.5 Section 3.4 above is not applicable if the Referred Client initially uses the Affiliate's cookie-based link provided by DataScope to access DataScope’s website and within thirty (30) days ("Cookie Period") thereafter signs up for DataScope services, including by going to DataScope’s website directly. Referred Client will not be associated with the Affiliate and therefore the Affiliate will earn no Referral Fee using the cookie-based tracking method if:
a. Cookie Period expires;
b. the Client signs up for DataScope services within another web browser in which the cookie was not activated prior to the signup;
c. the Client signs up for DataScope services after clearing cache in the web browser in which the cookie was activated.
3.6 DataScope reserves the right to change the mechanism it uses to create and track Referrals at any time. Affiliate’s continued participation in the Program after any such changes shall constitute your consent to such changes.
4. Referral Fee and Its Payments
4.1.DataScope will provide a monthly report via email on Referral Fee due to the Affiliate by the 2nd of the month following the end of each month.
4.2. The Referral Fee is 30% (thirty three percent) of the revenue that the Referred Client generates for DataScope during the first twelve (12) paying months of each Client Agreement.
4.3.Any euro denomination Referral Fees will be converted into US dollars for payment via PayPal, using the real mid-market rate on the last business day of each month as the currency exchange rate. Depending on the currency settings of the Affiliate’s PayPal account, PayPal may convert the amount into some other currency than US dollar using an exchange rate that is based on PayPal’s contract with the Affiliate.
4.4 If the accrued Referral Fee is or exceeds $50, the accrued Referral Fee will be paid to the Affiliate by approximately the 15th of the month following the end of each month via PayPal. If the accrued Referral Fee is less than $50, the Referral Fee will be further accumulated by DataScope until the accrued Referral Fee reaches at least $50.
4.5 DataScope may withhold payments of Referral Fee for a reasonable time to ensure that all Client Agreements are valid and payments from Referred Clients are legitimate as determined by DataScope in its sole discretion. In addition, Referred Client payments for annual subscriptions that are cancelled or payments charged-back due to credit card fraud do not qualify for Referral Fee.
4.6.In case the Affiliate believes the Referral Fee has been wrongly calculated, the matter must be brought into DataScope’s attention by email to email@example.com within 5 business days of Affiliate receiving the report. Not doing so will constitute Affiliate’s acceptance of the calculation and the payment made based on it.
4.7.Any costs related to the performance of the Affiliate Agreement shall be borne solely by the Affiliate. DataScope is not obligated or required to and shall not pay any compensation to the Affiliate other than the Referral Fee.
5.1.DataScope shall have no responsibility for determining, remitting, or withholding any taxes applicable to the Referral Fee.
5.2.Affiliate shall be solely responsible for determining whether:
Affiliate or DataScope is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to theReferral Fee and remitting any such taxes or charges to the appropriate authorities on behalf of itself or DataScope, as appropriate; andDataScope is required by applicable law to withhold any amount of the Referral Fee and for notifying DataScope in writing of any such requirement. Affiliate agrees to fully indemnify DataScope against any claims that may be asserted against DataScope or any losses DataScope may incur in the event Affiliate fails to notify DataScope of such requirement (including penalties and interest).
5.3.In the event of an audit of DataScope, Affiliate agrees to promptly cooperate with DataScope and provide copies of Affiliate’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing the Affiliate is engaging in an independent business.
6. Personal data
6.1.DataScope is not obliged to share with Affiliate any of the personal data of the Referred Clients (or any natural persons representing the Clients or providing services or work for them) who have concluded a Client Agreement with DataScope.
6.2.If the Affiliate wishes to keep personal data concerning Referred Clients for its own internal use, the Affiliate must obtain prior consent from the respective Referred Clients directly (or any natural person representing the Clients or providing services or work for them).
7.1.DataScope may make available to you a variety of sales and marketing materials such as logos, brochures, banners, photos, etc. (hereinafter “Materials”), which are subject to the terms and conditions hereof. In utilizing the Materials, Affiliate agrees that Affiliate:
may use the Materials only for the purposes of performing your obligations under the Affiliate Agreement; will not modify, alter or otherwise change the Materials without DataScope’s prior written consent; will cooperate fully with DataScope in order to maintain the Materials; and will use only the Materials which are provided by DataScope or expressly approved by DataScope in advance of any such use.
7.2.All Materials are the copyrighted property of DataScope, its affiliates and/or third party licensors. Furthermore, all trademarks, service marks, trade names, code, data or any other elements contained in the Materials are proprietary to DataScope, its affiliates and/or third party licensors and your use of the Materials does not grant to you ownership thereof. All goodwill symbolized by and connected with such use of the Materials will inure solely to the benefit of DataScope.
8.Limitation of Liability
DataScope and any of its officers, directors, employees, shareholders or agents of any of them shall not be liable to Affiliate for any amount or kind of loss or damage that may result to Affiliate or a third party (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, use of money, or loss or damages arising from or connected in any way to business interruption, and whether in tort (including without limitation negligence), contract or otherwise) in connection with this Program.
If Affiliate’s use of Material provided under this Program results in the need for servicing, repair or correction of equipment, software or data, Affiliate assumes all costs thereof. DataScope’s maximum aggregate liability under or in connection with this Agreement and the Program, whether in contract, tort (including negligence) or otherwise (a “Claim”), shall be limited to a sum equal to the aggregate amount which DataScope is obliged to pay Affiliate in the twelve (12) month period immediately prior to the period giving rise to such Claim.
9.1.The Affiliate Agreement shall become effective as of sign-up to the DataScope Affiliate Program and will end when terminated by either party. Either you or DataScope may terminate the Affiliate Agreement at any time in its sole discretion, without cause, by giving the other party a notice of termination at least 14 days in advance. Notice by e-mail, to your address on the DataScope records, is considered sufficient notice to terminate the Affiliate Agreement. Upon termination of the Affiliate Agreement, DataScope will pay to the Affiliate any legitimate outstanding Referral Fees. In addition, unless DataScope has terminated the Agreement as a result of Affiliate’s breach of the Agreement, in which case, DataScope shall have no obligation to pay Referral Fees accrued after the termination of Affiliate Agreement, DataScope shall pay any due Referral Fees for up to twelve (12) months following termination of the Agreement.
9.2.DataScope reserves the right to terminate the Affiliate Agreement with immediate effect with any Affiliate who DataScope reasonably believes has violated this Agreement or applicable laws. Such violating Affiliate shall not be entitled to any accrued by and unpaid Referral Fees.
9.3.Affiliate and DataScope are independent contractors, and nothing in this Affiliate Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate has no authority to represent or act on behalf of DataScope, including to make or accept any offers or representations or payments on DataScope’s behalf.
9.4.DataScope reserves the right to update and change the terms of this Agreement from time to time with a ten (10) day notice via email. Any amendments, modifications, enhancements or changes to the Program including the release of new features and resources made available by DataScope from time to time shall be subject to these terms. Continued participation in the Program after any such changes shall constitute your consent to such changes. You can review the most current version of this Agreement at any time at: https://partner.mydatascope.com/terms-and-conditions. In the event you do not consent to such changes and instead elect to terminate this Agreement, then provided you are not in breach of the Agreement at the time of termination, DataScope shall pay you any Referral Fees that accrue based on the terms in effect immediately prior to your termination for twelve (12) months following termination of the Agreement.
9.5 Based on the performance of the Affiliate or other factors, DataScope may, in its sole discretion, at any time change the Affiliate’s status into an Expert, in which case an Addendum to this Agreement will be applicable to summarize the changes to the terms and conditions of this Agreement.
10. Applicable law and jurisdiction
10.1.The Affiliate Agreement shall be governed by and construed in accordance with the laws of the City of Santiago, Chile, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Affiliate and DataScope, any dispute arising out of or relating to the Affiliate Agreement, or the breach thereof, shall be governed by the terms set forth in Section 10.2 below.
10.2.In the interest of resolving any disputes that arise between you and DataScope in the most expedient and cost effective manner, you and DataScope agree that any and all disputes arising in connection with the Affiliate Agreement shall be resolved by binding arbitration, as further specified below:
Arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of the AffiliateAgreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of your Affiliate Account.YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT TO ARBITRATE, YOU AND DATASCOPE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURYOR TO PARTICIPATE IN A CLASS ACTION.Notwithstanding the contents ofSection 10.2.a above, you and DataScope agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i)pursue enforcement actions through applicable regional, municipal, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.Any arbitration between you andDataScope will be governed by the Santiago Chamber of Commerce (Cámara deComercio de Santiago A.G.) The parties confer special and irrevocable power to the Chamber of Commerce of Santiago AG, so that, at the written request of either party, an arbitrator will be appointed to arbiter as to procedure and law regarding the ruling, from among the members of the refereeing corps of the Arbitration and Mediation Center of Santiago(Centro de Arbitraje y Mediación de Santiago).Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that DataScope does not have a physical address on file for you, by electronic mail (herein “Notice”). DataScope’s address for Notice is set forth in the preamble of the Affiliate Agreement. The Notice must (a)describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (herein “Demand”). You and DataScope agree to use good faith efforts to resolve the claim directly, but if no such resolution is reached within thirty (30) days after the Notice is received, you or DataScope may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or DataScopes hall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.Fees. In the event that you commence arbitration in accordance with the Affiliate Agreement, each party will be responsible for its own expenses and the payment of any fees to Chamber of Commerce of Santiago or the arbitrator shall be decided by the Chamber of Commerce of Santiago Rules. Any arbitration hearings will take place at a location to be agreed upon in the Metropolitan Region inChile, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the Chamber ofCommerce of Santiago Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the Chamber of Commerce of Santiago Rules. In such case, you agree to reimburse DataScope for all monies previously disbursed by it that are otherwise your obligation to pay under the Chamber of Commerce ofSantiago Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.No Class Actions. YOU AND DATASCOPE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you andDataScope agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of are presentative or class proceeding.Modifications. In the event that DataScope makes any future change to this arbitration provision(other than a change to DataScope’s address for Notice), you may reject any such change by sending DataScope written notice within thirty(30) days of the change to DataScope’s address for Notice, in which case your Affiliate Account shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.Enforceability. If the entirety of this Section 10.2 is found to be unenforceable, then the entirety of this Section 10.2 shall be null and void and, in such case, the parties agree that such action arising out of or related to the AffiliateAgreement shall be brought in the region or municipal courts located in Santiago,Metropolitan Region.
By accepting this Agreement and Addendum A hereto governing the special terms and conditions related to the Expert status, the Affiliate confirms that it has reviewed both the DataScope Affiliate Agreement and Addendum A and agrees to the terms and conditions stipulated therein.
Addendum A: Special Terms & Conditions related to Expert status
DataScope assigns the status of Expert to the Affiliate on the following terms and conditions:
Subject Terms and conditions
Revenue share 30% (twenty percent)
Revenue share duration Lifetime of the ClientAgreement
Affiliate's right to publicly use the title of Expert Upon successful completion of annual certification
Annual certification Completion of DataScopeCertification program by successfully passing DataScope Certification test with in thirty (30) days after receiving initial annual certification email and successfully passing the above mentioned test within fourteen(14) days after receiving subsequent annual certification emails.
Condition for retaining the Expert status A minimum of two (2)new paying customers per calendar quarter or retaining forty (40) existing paying customers; completion of annual certification.
Perk Free DataScope demo account on Premium plan with user access for up to five (5) users.
Other terms and conditions
DataScope may, in its discretion, modify the terms and conditions set forth in this Appendix from time to time with a ten day notice via email. For the avoidance of doubt, the terms and conditions of this Addendum will override those presented in the DataScope Affiliate Agreement in case of conflict.