Last Updated Jan 2021
This Affiliate AGREEMENT ("Agreement") is between Luminati Networks LTD ("Luminati"), with an address of 3 Hamachsev St., Netanya 4250713, Israel, and you or your company, organization, or entity ("Affiliate"), (collectively, the "Parties").
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby expressly acknowledged, the Parties, intending to be legally bound, agree as follows:
As used in this Agreement and any amendments or exhibits therein, each capitalized term will have the meaning and definition specified below:
1.1 "Luminati Marketing Materials" means marketing materials developed by or for the benefit of Luminati and used to market and promote the Services. Luminati may modify or alter Luminati Marketing Materials at any time in its sole discretion, without notice or notification.
1.2 "Luminati Marks" means trademarks, service marks, logos, insignias, trade dress, brand assets and branded terms, and other designations proprietary to Luminati. Luminati may modify or alter Luminati Marks at any time in its sole discretion, without notice or notification.
1.3 "Confidential Information" has the meaning as defined in Section 6.1.
1.4 "Customer" means an end-user who acquires the Services for paid use (and not for re-sale) and agrees to Luminati's Terms of Service, which definition is hereby incorporated by reference into this Agreement for the Services.
1.5 "Derivative Work" means any work which uses, is based on, or incorporates the Services or any part thereof, including, without limitation, translations, adaptations, condensations, improvements, updates, enhancements, or any other form in which the Services or any part thereof may be recast, transformed, adapted, or revised.
1.6 "Intellectual Property Rights" means trade secrets, trade names, trademarks, logos, trade dress, copyrights, patents, proprietary information, know-how, processes, methodologies, designs, formulas, procedures, programs, methods, apparatuses, ideas, inventions, creations, improvements, works of authorship or other similar material, moral rights, publicity rights, privacy rights, and any and all other proprietary rights and any and all applications, registrations, renewals, extensions, and restorations thereof, now or hereafter in force and effect anywhere in the world.
1.7 "Person" means an individual, corporation, partnership, limited liability company, or other entity.
1.8 "Services" means Luminati's offerings as defined in Luminati's Terms of Service. Luminati may modify or alter the Services at any time in its sole discretion, with or without notice or notification.
1.9 "Term" means the period of time described in Section 5.1.
2.1 License Grants.
2.1.1 License. Subject to Affiliate's compliance with all terms of this Agreement, Luminati hereby grants to Affiliate a revocable, non-transferable, worldwide, non-exclusive license during the Term to market, promote, display, and demonstrate the Services solely for the purpose of promoting the Services to Customers and potential Customers. Luminati grants no rights under this Agreement to Affiliate to sublicense, resell, or otherwise distribute or provide the Services to Customers or third parties or for subsequent sublicensing, resale, or other distribution to end users or other distributors.
2.1.2 Luminati Trademark License. Subject to such written guidelines as may be periodically provided by Luminati to Affiliate, Luminati hereby grants to Affiliate a revocable, non-transferable, worldwide, non-exclusive license during the Term to use Luminati Marks solely for the purpose of promoting the Services to Customers or potential Customers.
2.1.3 Quality Control. Any uses by Affiliate of the Services, Luminati Marks, or Luminati Marketing Materials shall conform to all standards set by Luminati from time to time, and not be sold, used, distributed, or disclosed by Affiliate unless approved by Luminati. Affiliate acknowledges and agrees that this Section constitutes a material term of this Agreement.
2.1.4 Misuse or Infringement. Affiliate will use its best efforts to notify Luminati promptly of any misuse or infringement of Luminati Intellectual Property Rights of which it becomes aware, and will cooperate with Luminati, where reasonably necessary, to protect Luminati Intellectual Property Rights against infringement. Any decision to take action against misuse or infringement will be entirely at Luminati's discretion, and any damages recovered will be solely for Luminati.
2.1.5 Reservation of Rights. Luminati reserves all rights not expressly granted in this Agreement, and does not transfer any right, title, or interest to any Intellectual Property Rights contained in the Services.
2.1.6 No Modifications. Affiliate shall not (i) alter, modify, adapt, translate, or create Derivative Works from the whole or any part of the Services, Luminati Marks, or Luminati Marketing Materials; (ii) permit the whole or any part of the Services to be merged, combined with, or otherwise incorporated into any other product; or (iii) copy, reverse engineer, disassemble, or otherwise attempt to derive the source code for the Services or any part thereof, unless expressly permitted to do so herein.
2.2 Ownership. Affiliate acknowledges and agrees that Luminati maintains exclusive ownership of the Services, Luminati Marks, and Luminati Marketing Materials, including all Derivative Works, updates, or modifications thereto, and all copies and all portions thereof. All goodwill arising with respect to the use of the Services, Luminati Marks, and Luminati Marketing Materials shall insure to Luminati's exclusive benefit.
Affiliate will not attack, question, or contest the validity of Luminati's ownership of Luminati Intellectual Property Rights, both during the Term and thereafter. Affiliate will not remove, alter, or conceal any Luminati copyright or other proprietary notice displayed on the Services, Luminati Marks, or Luminati Marketing Materials. Affiliate shall not use any language or display Luminati Intellectual Property Rights in such a way as to create the impression that Luminati Intellectual Property Rights belong to the Affiliate.
2.3 Feedback. Affiliate acknowledges and agrees that any suggestions, questions, comments, ideas, enhancement requests, recommendations, or other feedback provided by Affiliate relating to any aspect of the Services, any of Luminati's products or services, any aspect of Luminati business, or in association with any of Luminati's related products, services, or business ("Feedback") is the exclusive property of Luminati, and may be used or exploited by Luminati without restriction, condition, or compensation of any kind to Affiliate. Affiliate hereby assigns and waives its rights in any Feedback.
3.2 Specific Affiliate Activities . Without limiting the generality of the obligations set out in Section 3.1, Affiliate will: (i) introduce potential Customers to Luminati, which may include sharing a referral link with such potential Customers; (ii) assist Luminati in following up with Customers and potential Customers to answer questions after an initial sales meeting; and (iii) to the extent reasonably requested by Luminati, assist during the negotiation process with potential Customers entering into a Subscription agreement.
4.1 Fees to Customer. Luminati shall directly bill Customer for the Services (the "Service Fees"). Luminati shall be responsible for collecting the Service Fees. During the Term, Service Fees may change, as determined by Luminati in its sole discretion.
4.2 Payment to Affiliate. Luminati shall pay Affiliate fifty percent (50%) of the Net Service Fees actually received by Luminati from a new Customer for the Services referred by Affiliate and tracked, per Section 3.3 ("Affiliate Commission"). For the purposes of this Agreement, "Net" shall mean the aggregate amount of Service Fees actually received by Luminati from Customer, less any refunds to any such Customer for Service cancellation and any applicable taxes. Payments to Affiliate shall be calculated and made by Luminati from the date on which the referred new Customer begins a Subscription to Luminati's Services, with each payment to be made within 30 days of the end of the previous calendar period. Luminati reserves the right to change any aspect of Affiliate compensation, including but not limited to, commission rates, payment dates, and duration of payments, at any time for any reason. Electing not to terminate this Agreement in accordance with Section 5.2.3 indicates Affiliate's acceptance of any and all new, updated, or modified compensation provisions.
4.3. To be eligible for an Affiliate Commission, Customer must have never previously entered into a Service agreement with Luminati.
4.4 No Expenses; Taxes. Except as expressly set forth herein, each party shall be responsible for any and all costs and expenses incurred by such party in connection with its performance hereunder. Affiliate will be responsible for any sales, use, or other taxes (other than taxes based on Luminati's net income), and payment processing fees that may arise in connection with Affiliate's performance under this Agreement.
4.5 Currency. Affiliates may have the option of selecting a local currency by which to receive an Affiliate Commission. Available currency options and distribution thereof are managed entirely by Tracking Service Provider. Luminati disclaims all liability in this area, including but not limited to, fluctuations in exchange from United States Dollars to any other currency.
4.6 No Guarantee. Affiliate acknowledges and agrees that Luminati makes no representation or guarantee of any kind regarding revenue, business, profit, or Customers under this Agreement.
5.1 Term. This Agreement shall commence on the date of its execution and continue in full force and effect until terminated in accordance with this Agreement.
5.2.1 Breach. This Agreement may be terminated immediately by either party by written notice of termination if the other party breaches this Agreement and fails to remedy the breach within 30 days after receipt of written notice. Notwithstanding the foregoing: (i) either party may terminate this Agreement immediately upon written notice to the other party if the other party infringes the Intellectual Property Rights of the party electing to terminate this Agreement or breaches the confidentiality provisions of this Agreement, and
(ii) Luminati may terminate this Agreement immediately upon written notice to Affiliate in the event Affiliate breaches Section 2.1.3.
5.2.2 Cessation of Business or Insolvency. Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement immediately by providing written notice to the other if: (i) the other ceases to carry on its business, or otherwise terminates its business operations, except as a result of a permitted assignment of this Agreement; or (ii) the other becomes insolvent, admits in writing its inability to pay debts as they mature, or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within sixty (60) days).
5.2.3 Affiliate Cancellation. Affiliate may terminate this Agreement at any time and for any reason by providing Luminati with at least thirty (30) days written notice of Affiliate's intention to terminate the Agreement. During the final thirty (30) days of the Agreement, Affiliate shall continue to receive any Affiliate Commission or other benefits owed, and shall have the right to continue to refer Customers through the end of the thirty (30) day notice period. All benefits, including Affiliate Commissions, shall cease immediately upon termination.
5.2.4 Luminati Cancellation. Luminati may terminate this Agreement at any time and for any reason, including but not limited to, cancelling this Affiliate program, by providing thirty (30) days written notice to Affiliate. Affiliate shall receive outstanding Affiliate Commissions that originate from Customer Service entered into prior to receiving the termination notice, and during the final thirty (30) days of the Agreement, but otherwise Luminati will have no liability related to such termination. Affiliate agrees to follow all instructions that may be provided in any termination notice. All benefits, including Affiliate Commissions, shall cease immediately upon termination.
5.3 Effect of Termination or Expiration.
5.3.1 Return of Materials. Upon termination or expiration of this Agreement, Affiliate will immediately return, or (at Luminati's request) destroy, all Luminati Marketing Materials and Confidential Information in its possession or control, and, upon Luminati's request, an officer of Affiliate will certify to Luminati in writing that Affiliate has done so. Luminati will pay all outstanding amounts owed to Affiliate within ninety (90) days of Agreement termination or expiration.
5.3.2 Survival. The terms and conditions of Sections 1 (Definitions), 2.1.5 (Reservation of Rights), 2.1.6 (No Modifications), 2.2 (Ownership), 4.4 (No Expenses; Taxes), 5 (Term and Termination), 6 (Confidentiality), 7 (Warranties), 8 (Indemnification), 9 (Limitation of Liability), and 10 (Miscellaneous), and any right of action for breach of this Agreement that may have arisen prior to termination or expiration, shall survive any termination or expiration of this Agreement.
6.1 Definition of Confidential Information . For this Agreement, "Confidential Information" means all data and information whether in written, machine readable, or other tangible form, or disclosed orally, and whether disclosed before, on, or after the effective date, that is communicated by either party to the other party. A party disclosing information is a Disclosing Party . A party receiving information is a Receiving Party. Confidential Information shall include, but not be limited to, information relating to the Disclosing Party's assets, properties, personnel, customers, suppliers, products, technology, services, facilities, current or proposed business plans, marketing and roll-out plans, distribution channels, financial information, prices, trade secrets, know-how, formulae, processes, data, drawings, proprietary information, and any other non-public information which concerns the business and operations of the Disclosing Party or its Affiliates, whether marked or otherwise labelled as confidential. The term "Affiliate" shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with either party.
6.2 Restrictions on Use and Disclosure. The Receiving Party shall keep all Confidential Information received from the Disclosing Party strictly confidential during the Term and for a period of two (2) years after the expiration or termination of this Agreement. Receiving Party shall preserve and protect Confidential Information from disclosure by exercising the same degree of care that it exercises to preserve and protect its own Confidential Information, but in no case less than reasonable care. The Receiving Party shall not disclose any of the Confidential Information to any Person unless written permission is granted by the Disclosing Party, except that the Receiving Party may provide access to the Confidential Information to those of its directors, officers, employees, and professional advisors who need such access for the purposes of this Agreement, provided the Receiving Party uses its best commercial efforts to ensure that all such persons adhere to the terms of this Agreement. Neither party shall use, sell, license, lease, or otherwise allow third parties to use the Confidential Information of the other party, in any way, for its own or any third party's benefit.
6.3 Exclusions . Notwithstanding the provisions of Section 6.1, Confidential Information shall not include any information that, as established by competent evidence: (a) is publicly known at the time of disclosure or becomes publicly known through no fault of the Receiving Party; (b) Receiving Party knew prior to the disclosure thereof; (c) was independently developed by Receiving Party without benefit of, use of, or reference to, Disclosing Party's Confidential Information; or (d) is required to be disclosed by a court or tribunal of competent jurisdiction; provided, however, that Receiving Party promptly inform Disclosing Party of such obligation in writing so that, to the extent practicable, Disclosing Party may obtain a protective order or other similar remedy.
6.4 Survival . The obligations of confidentiality set forth in Section 6 shall continue in full force and effect until each party supplies the other party with the last item of Confidential Information and for five (5) years thereafter; provided, however, that as to any Confidential Information that constitutes a "trade secret" under applicable law, the obligations of confidentiality contained herein shall continue for so long as permitted under applicable law.
6.5 Breach of Confidentiality . If the provisions of Section 6 are breached, each party acknowledges that the other will suffer irreparable harm and that monetary damages will be an insufficient remedy. Consequently, the injured party shall be entitled to seek injunctive relief or other similar action. The remedy hereunder shall not preclude any other remedies available, at law or at equity, to the injured party.
6.6 Publicity . Neither party shall publicly disclose the contents of this Agreement without the prior written consent of the other party, unless required by law.
7.1 Mutual Representations and Warranties. Each party represents and warrants that: (i) it has the full corporate right, power, and authority to enter into this Agreement and perform its obligations hereunder; (ii) when executed and delivered, this Agreement will constitute a legal, valid, and binding obligation enforceable against it in accordance with its terms; and (iii) it will comply with all applicable laws, regulations, and orders of any governmental authority of competent jurisdiction in its performance of this Agreement.
7.2 Affiliate Representations and Warranties . Affiliate warrants to Luminati that:
(i) Affiliate has all consents, permissions, or licenses necessary to perform its obligations under this Agreement, and (ii) Affiliate shall make no representations or warranties with respect to the Services except as expressly permitted in this Agreement and Luminati's Terms of Service, and shall not alter or enlarge such representations or warranties.
7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT EITHER PARTY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8.1 Luminati Indemnity. Luminati hereby agrees to defend, indemnify, and hold harmless Affiliate and its officers, directors, shareholders, employees, and consultants (collectively, the "Affiliate Indemnified Parties") from any and all damages finally awarded by a court of competent jurisdiction without appeal or settlement amount that may be incurred by Affiliate Indemnified Parties as a result of any third party claim that Luminati's intellectual property as used in accordance with the terms of this Agreement violated the intellectual property rights of said third party, provided that (i) Affiliate notifies Luminati promptly in writing of the claim; (ii) the violation is not due to Affiliate's misuse of the Services, failure to implement, or properly implement, a solution provided by Luminati, or combining of the Services with other products, services, or technologies; (iii) Luminati has sole control of the defense and all related settlement negotiations; (iv) Affiliate provides Luminati with all reasonable assistance, information, and authority to defend and/or settle the claim; and (v) Affiliate has not breached any term of the Agreement. Notwithstanding the foregoing, Affiliate may participate in the defense and any settlement discussions, and will have the right to approve any settlement agreement purporting to bind Affiliate.
8.2 Affiliate Indemnity . Affiliate hereby agrees to indemnify, defend, and hold harmless Luminati and its officers, directors, shareholders, employees, and consultants (collectively, the "Luminati Indemnified Parties") from any and all liability, loss, damages, costs, and fees (including, without limitation, attorneys' fees) that may be incurred by Luminati Indemnified Parties as a result of any claim arising from or related to (i) Affiliate's breach of any of its representations, warranties, or covenants set forth in this Agreement; (ii) Affiliate's negligence or willful misconduct; or (iii) Affiliate's violation of any third party Intellectual Property Right. Luminati may participate in the defense and any settlement discussions, and will have the right to approve any settlement agreement purporting to bind Luminati.
8.3 THE FOREGOING SETS FORTH EACH PARTY'S EXCLUSIVE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
NEITHER PARTY, NOR ITS RESPECTIVE OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, INSURERS, LICENSORS, AND SERVICE PROVIDERS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY, WARRANTY, AND NEGLIGENCE, AND WHETHER OR NOT SUCH PERSON WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. LUMINATI'SAGGREGATE LIABILITY TO AFFILIATE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF AFFILIATE COMMISSION OWED TO AFFILIATE WITHIN THE LAST TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE CLAIM(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO THE DEFENSE AND INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT OR FOR ANY BREACH OF SECTIONS 2 OR 6.
10.1 Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor under this Agreement and this Agreement will not create any relationship of agency, partnership, joint venture, or any similar relationship between the parties. Neither party, nor its agents or employees, are the representatives of the other party for any purpose, and neither party has the power or authority to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
10.2 Assignment. Neither party may assign its rights or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, Luminati may: (i) assign this Agreement to any acquirer of all or of substantially all of its equity securities, assets, or business; or (ii) delegate any of its obligations hereunder to subcontractors, provided that Luminati remains responsible for the performance of all such obligations. Any attempted assignment or delegation in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the Parties' successors and assigns.
10.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Israel, notwithstanding the actual residence of the Parties. The Parties hereby submit to the jurisdiction of the courts in Tel Aviv, Israel in any proceeding, claim, or litigation arising out of the Agreement
10.4 Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent such delay or failure is caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, power outages and governmental restrictions, fires, labor disturbances, floods, epidemics, war, riot, civil insurrection, shortages of relied upon services, or intentional, reckless, or negligent acts of third parties, including unauthorized hacking on or through the Internet.
10.5 Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing, by an authorized representative of such party, and delivered by hand, registered mail, courier, or express delivery service, or email. Notice shall be considered to have been received five (5) days after sending date if by registered mail, courier, or express delivery service, and the same day if sent by email.
10.6 No Implied Waivers. A party's failure to exercise a right under this Agreement shall not constitute a waiver of such right. A party's waiver of the other party's breach of this Agreement shall not constitute a waiver of any such breached provision.
10.7 Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Parties agree to renegotiate in good faith those invalid provisions so as to be valid, enforceable provisions that reflect as closely as possible the original intent of the Parties, and further agree to be bound by such substitute provisions.
10.8 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement
10.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, including, without limitation, the terms of any purchase order. No amendment to or modification of this Agreement will be binding unless agreed to in writing and signed by a duly authorized representative of both parties. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.