METRON INNOVATION GROUP INC. COMMISSIONS PROGRAM TERMS AND CONDITIONS
This Metron Innovation Group, Inc. Commissions Program Terms and Conditions (“Agreement”) is entered into as of the date on which You click the “I Agree” button, between You and Metron Innovation Group, Inc., a California corporation (“Metron”).
1. AGREEMENT SUBJECT TO APPROVAL
The effectiveness of this Agreement is subject to Metron’s approval in writing (via mail, fax or e- mail) (“Approval”) and this Agreement shall commence on the date of the Approval (“Effective Date”). Metron may reject or decline to accept this Agreement for any or no reason at its sole discretion. Metron may conduct background checks and other screening measures of any sort in connection with this Agreement. If Metron grants an Approval, End User contracts enabled by You within the Territory to Metron, during the term and in accordance with all terms and conditions of this Agreement, that resulted in End User paid accounts for Metron services (“Services”) will entitle You to earn a Commission.
2.LIMITATIONS ON ACTIVITIES
2.1Limitations on Activities. Your activities under this Agreement shall be limited as follows:
2.1.1You shall conduct all of Your business in Your own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all laws, and not perform any act which would or might reflect adversely upon the Services or the business, integrity or goodwill of Metron.
2.1.2You shall not be, or purport to be, authorized to legally represent Metron or to conduct negotiations on behalf of Metron. You shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Metron or register this Agreement under local registered agency law nor shall Metron be liable for any acts, omissions to act, contracts, commitments, promises or representations made by You.
2.1.3You shall not use any trademarks, logos, names or other identifiers owned or used by Metron (“Marks”), except that You may refer to Metron and its Services in conversations and written correspondence with potential End Users in the same manner as Metron does in its own marketing materials and website. Any other use of Marks (e.g., on a website) has to be designed in compliance with Metron trademark usage guidelines, including but not limited to Metron’s marketing guidelines as posted on its website or provided to you upon request and be pre- approved by Metron in writing.
2.1.4You are an independent contractor, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the
2.1.5All financial and other obligations associated with You or Your business are solely your responsibility. As an independent contractor, the mode, manner and method used by You shall be under Your sole control and You shall be solely responsible for risks incurred in the operation of Your business and the benefits thereof. You shall bear all of Your own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by Metron.
2.1.6You shall not make any representations or other statements about Services, prices or business practices, except that You shall forward to potential End Users (i) unmodified marketing materials provided by Metron and (ii) references to Metron’s standard conditions of sale, as may be published by Metron on its website or otherwise.
2.2No License to Intellectual Property; Confidential Information
You acknowledge and agree that no license is granted under this Agreement to use or access any Services, any of Metron’s proprietary technologies embodied therein, or any data, information or other content provided thereby. Metron retains all right, title and interest in and to the Services and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and You acknowledge that You neither own nor acquire any rights in or to the Services. In the event any Confidential Information is disclosed to You, voluntarily or inadvertently, You agree not to disclose such Confidential Information to any third parties without written consent from Metron.
2.3 Nonexclusive Referral Agreement and Limitations
Each party acknowledges that this Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to work with other parties for similar services and Services. Notwithstanding the foregoing, once You receive a commission from Metron for a particular Vendor or Service, You will not refer a direct competitor of Metron to that End User. You will not enter into an agreement with a third party the effect of which would prohibit End Users from engaging with Metron Services or would divert End Users to third party competitors of Metron.
3. REFERRALS PROCESS
Metron’s proprietary referral tracking system (“tracking system”) automatically records when End User traffic is driven to a Program Creator’s page. The tracking system will also record whether an End User registers for the Program Creator’s Services within 60 days (each visit resets the clock anew). In the event that You are the responsible for directing End User to a Program Creator’s page and sale within 60 days, You will get credit for the sale and receive a commission.
4.COMMISSIONS
4.1Qualifications and Payment
4.1.1Subject to compliance with all terms and conditions of this Agreement, Metron will pay commissions according to the terms included in this Agreement and as specified under “Contract Details” on Your dashboard as an Affiliate / Program Creator.
a.Affiliates are individuals, regardless of whether or not they maintain a qualified training program on the Metron platform, who direct End User traffic to a third party Program Creator that result in End User registration and payment for services.
b.Program Creators are skilled individuals who maintain qualified training program accounts on the Metron platform.
c.Both Affiliates and Program Creators must maintain Active Accounts in order to receive commissions. An Inactive Account is one that has not resulted in any increase in qualified traffic to the Metron platform for a period of 60 days. Qualified traffic excludes visits by Affiliate him or herself and any spiders, bots, web crawlers, robotic or programmed activity. After an account is deemed Inactive, Metron will close the account and commission payments will cease. You may reactivate the account by executing a new Agreement. Terms and conditions may change. In the event that Inactivity was due to death or incapacity, the same terms apply; in no event will commission accrue post termination to heirs, beneficiaries or estates.
d.Commission is only applied to End User registrations for Metron qualified training programs.
e.Affiliates and Program Creators Commission rates are provided on Your dashboard as an Affiliate / Program Creator.
4.2Reports
Metron automatically refreshes Your online web portal with any changes in activity. This dynamic report (“report”) will reflect any activity and the commissions generated. Each report shall be deemed final and accepted by You unless Metron receives a detailed written objection within thirty (30) days of any posted disputed material.
4.3 Modifications
Upon thirty (30) calendar days’ written notice, Metron may modify the qualification parameters for Affiliates and Program Creators, the commission percentage amounts and conditions relating to commissions. Such changes will apply to referrals recorded after the thirty (30) day period.
4.4Commissions After Termination
a.Termination of the Agreement by You
Termination by You includes Inactivity as defined in 4.1.1 (c) and as defined in Sections 6.2, 6.3. Following termination of the Agreement by You for any reason, Metron will tabulate earned commission up until the date of termination by You and will issue complete and final payment at the end of 30 business days. Metron will continue to issue reports in accordance with Section 4.2 through such time of payment.
b.Termination of the Agreement by Metron
Termination by Metron shall be accompanied with Notice, as provided by Sections 5.2 and 5.3. If 30 days’ Notice is provided, commissions earned up until the termination date will be tabulated and complete and final payment will be issued. If immediate termination occurs, commission for the remainder of the payment cycle will be tabulated and final payment will be issued at the conclusion of that payment cycle.
4.5No Other Payments
Except as expressly provided in this Section, You are not entitled to any fees, reimbursements or other payments.
5.TERM AND TERMINATION
5.1Term. This Agreement shall commence on the Effective Date and shall continue in effect until terminated.
5.2Termination for Convenience. This Agreement may be terminated by either party for any or no reason upon written notice to the other party thirty (30) days prior to the desired termination date (or with such minimum advance notice as required by mandatory applicable law). Neither party shall have any expectation as to the minimum term of this Agreement.
5.3Termination for Cause. Either party may terminate this Agreement, effective immediately, (a) in the event of a material breach by the other party, which the other party fails to cure within five (5) business days of receipt of a written request to cure from the other party, (b) if You or Your Business becomes insolvent, (c) if You or Your Business makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or (d) if You or Your Business seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute. If, at the time of Your acceptance of this Agreement or any time thereafter, Metron would be prohibited from doing business with You under United States export regulations and controls, this Agreement shall automatically be null and void.
5.4Effect of Termination. Sections 2, 4.5 and 5 shall survive termination of this Agreement. Upon termination of this Agreement for any reason, You shall immediately cease the use of all Metron brochures, literature, documentation and other materials. You shall have no rights or claims against Metron in connection with termination, expiration or non- renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.
6.GOVERNING LAW AND ARBITRATION
6.1This Agreement and any dispute arising out of or in connection with this Agreement
(“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of California, USA, without giving effect to conflict of laws principles thereof.
6.2Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of the Agreement which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or
a.Mediation. Except as provided herein, any and all Disputes arising out of or relating to this Agreement shall be submitted to an approved dispute resolution body like JAMS or JudicateWest for mediation before arbitration or any other form of legal relief may be instituted. A Party may commence Mediation by providing the dispute resolution body a written request for mediation setting forth the
subject of the Dispute and the relief requested. The parties will cooperate with the dispute resolution body in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in Santa Clara County, California.
b.Arbitration. Except as provided herein, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara County, California and before a single arbitrator. The arbitrator selected shall be a retired judge who has had experience with technology disputes. In any arbitration arising out of or related to this Agreement, the parties agree the arbitrator is not empowered to award punitive or exemplary damages, and the parties waive any right to recover any such damages. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if the amount in dispute exceeds $250,000 USD and its JAMS Streamlined Arbitration Rules and Procedures when lesser amounts are in issue. The arbitrator shall issue a written reasoned decision. Each party shall bear their own costs in connection with the arbitration, although the arbitrator shall award the prevailing party its reasonable costs and attorneys’ fees.
6.3Metron may protect its Intellectual Property by, at its sole discretion, seeking preliminary judicial relief in any court of competent jurisdiction including, but not limited to, preliminary injunctive relief. Also, the provisions of this Section may be enforced by any court of competent jurisdiction.
6.4If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of this Agreement or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
7.NO WAIVER
The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.
8. SEVERABILITY
If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent possible to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.
9. NOTICES
All notices, approvals, consents and other communications required or permitted under this Agreement will be invalid unless made in writing and given (a) by Metron via mail, fax or
10. ASSIGNMENT
You may not assign, subcontract or delegate this Agreement or any of Your rights or obligations hereunder, in whole or in part, including without limitation by operation of law, without Metron’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. Metron may assign this Agreement and subcontract or delegate its obligations hereunder to any third party with or without Your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
11.COMPLIANCE
11.1You represent and warrant that (a) You will conduct Your business activities in a legal and ethical manner; (b) You have submitted and will submit complete and truthful information in connection with your application and all referrals; (c) You will submit all filings and obtain any approvals that may be necessary for You to perform Your obligations under this Agreement, (d) You will commit no act that would reflect unfavorably on Metron; and (e) You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with Your performance of this Agreement, including without limitation, privacy,
11.2You acknowledge that any sums paid to You under this Agreement are for Your own account and that, except as appropriate to carry out Your duties set forth herein in a legal manner, You did not, have no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of Your referral activities hereunder. In particular, without limitation, You agree not to take any actions that would cause You or Metron to violate the United States Foreign Corrupt Practices Act or any other antibribery law.
12.INDEMNIFICATION
You shall indemnify and hold Metron harmless from and against any and all third party claims against Metron arising out of any act, default, misrepresentation or any omission on Your part (including, without limitation, negligence and breach of this Agreement), or any of Your agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
13.
To the extent permissible under applicable law, you are prohibited from soliciting any of the employees of Metron (either directly or through agents), without written permission of Metron, during the term of this Agreement.
14. COUNTERPARTS
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
15. ENTIRE AGREEMENT AND AMENDMENT
This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter. Any amendments or renewals to this Agreement shall be invalid unless made in writing that is signed by duly authorized representatives of both parties. In the event of any additional or inconsistent terms contained in any other communications, the terms and conditions in this Agreement shall prevail unless Metron specifically identifies the section(s) of this Agreement that Metron intends to override in a writing signed by Metron.
16. LIMITATIONS OF LIABILITY
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, METRON WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL METRON’S LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS PAID BY METRON TO YOU DURING THE PRECEDING TWELVE MONTHS. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
17. DEFINITIONS
"Confidential Information" means all trade secrets,
“Territory” means the geographic area(s) in which End Users are located, and which shall be determined in Metron’s sole discretion, and may be updated from time to time.
“Written” or “writing” shall include fax, mail delivered by United States Postal Service, UPS or FedEx, electronic mail correspondence, posts made by Metron onto its website and updates Metron makes directly to You through reports.