Terms and Conditions
This Agreement is made and entered
into by and between The Marlin Company, located at 10 Research Parkway,
Wallingford, Connecticut (“Marlin”, “we”), and our Advocates (“Advocate”, “you”),
Advocate will market Company’s
products services in exchange for Referral Fees as defined further in this
Marlin provides workplace digital
signage services (“Services”). Marlin hereby grants to Advocate a nonexclusive,
nontransferable right to market and otherwise promote the Services.
REFERRED is someone who uses a Special
Link, as provided upon your registration, and then visits a landing page from
that Special Link that you shared, and then fills out a demo request form on
our site which results in an Appointment/Consultation/Demonstration (“Consultation”)
that is completed within 30 days from the time the request form is completed.
Marlin will pay you a one-time $25.00
USD referral fee for each unique, initial Consultation for Services.
For consultation to be eligible to
earn you a referral fee, the referred must follow a Special Link to our
site, request and schedule a time to
review our Services using our automated ordering system, accept
and fulfill that schedule Services
demonstration time. We will make best efforts to determine your potential
Referred parties returning to our website for up to 180 days after their
initial visit, either through a cookie placed in Referreds' browser and/or
through their email address. We cannot, however, guarantee the payment of
referral fees on any Consultation of our Services that are performed after the Referred
has reentered our site (other than through a Special Link), as determined by
us, even if the Referred previously followed a link from your site, social
media, email, etc., to our site, if for any reason we are unable to identify
you as the Advocate (for example if the Referred returns to our site using different
computer and/or email address). In cases where the customer re-enters our site
more than once referred by multiple Advocates, only the last referring Advocate
will earn the referral fee.
You may not be rewarded for
Consultations for yourself during sessions initiated through the links on your
site for your own use. Such requests for Consultations for you may result (in
our sole discretion) in the withholding of referral fees or the termination of
this Agreement. Consultations that are eligible to earn referral fees under the
rules set forth above are referred to as "Qualifying Services."
In addition, you may not: (a) read,
intercept, record, redirect, interpret, or fill in the contents of any
electronic form or other materials submitted to us by any person or entity; (b)
in any way modify, redirect, suppress, or substitute the operation of any button,
link, or other interactive feature of our site; (c) make any orders or subscription
requests, or engage in other transactions of any kind on our site on behalf of
any third party, or authorize, assist, or encourage any other person or entity
to do so; (d) take any action that could reasonably cause any customer
confusion as to our relationship with you, or as to the site on which any
functions or transactions (e.g., search, order, browse, and so on) are
occurring, or assist, authorize, or encourage any third party to take any such
action. If we determine, in our sole discretion, that you have engaged in any
of the foregoing activities, we may (without limiting any other rights or
remedies available to us) withhold any referral fees otherwise payable to you
under this Agreement and/or terminate this Agreement.
Marlin may, at its sole discretion,
refuse to conduct a Consultation with any person who completes a Consultation
request form as part of this referral program or any form request on any of the
License Grant of Marlin Marks
Subject to all the terms and
conditions of this Agreement, Marlin hereby grants Advocate a nonexclusive,
non-transferable license to use the Marlin trademarks, logos, and copyrighted
material ("Marlin Marks") solely in connection with promoting the
Services as part of the referral program. Advocate hereby acknowledges and
agrees that (i) the Marlin Marks are owned solely and exclusively by Marlin or
its affiliates, (ii) except as set forth herein, Advocate has no right, title
or interest in or to Marlin
Marks; and (iii) all use of the Marlin
Marks by Advocate shall inure to the benefit of Marlin and its subsidiaries.
Advocate agrees that it shall not engage, participate or otherwise become
involved in any activity or course of action that diminishes and/or tarnishes
the image and/or reputation of Marlin or of any Marlin Mark.
Use and Display of Marlin
Advocate acknowledges and agrees that
the presentation and image of Marlin Marks should be uniform and consistent
with respect to all services, activities and products associated with the Marlin
Marks. Accordingly, Advocate agrees to use the Marlin Marks solely in the
manner in which Marlin shall specify from time to time in Marlin’ sole
Advocate further agrees: To not engage
in any deceptive, misleading, illegal, or unethical practices that may be
detrimental to Marlin or its products or services; not make any
representations, warranties, or
guarantees on behalf of Marlin, or
otherwise concerning Marlin Services that are inconsistent with or in addition
to any such representations, warranties, or guarantees made by Marlin; and use
the then-current name as used by Marlin (but will not represent or imply that
Advocate is a partner or employee of
The term of this Agreement shall
continue until it is terminated. Either party may terminate this Agreement at
any time upon providing written notice to the other party.
Upon expiration or termination of this
Agreement for any reason, all rights and obligations of the Parties under this
Agreement shall be extinguished, except that: (a) all accrued payment
obligations hereunder shall survive such expiration or termination, if applicable;
and (b) any other provisions of this Agreement that should reasonably survive
expiration or termination shall survive such expiration or termination.
Advocate shall defend, indemnify, and
hold Marlin, its affiliates, and any of their officers, directors, agents and
employees harmless from and against any action, claim or suit brought against
COMPANY or its affiliates, including any and all losses, damages, costs, and
expenses (including reasonable attorneys’ fees) arising from or out of: (a) any
breach or alleged breach by Advocate of any representation, warranty or other
obligation of Advocate under this Agreement; (b) any alleged or actual
Advocate of any laws, policies,
guidelines, regulations, ordinances, rules and/or orders of any governmental
authority or regulatory body having jurisdiction over Company and the subject
matter hereof; (c) the negligence or willful misconduct of Advocate, its employees
or agents; or (d) Advocate’s advertising, marketing, promotion, sale, or distribution
of any of the Qualifying Services.
Advocate shall not, directly or
indirectly, disparage Marlin, any Marlin Mark
(including trademarks, service marks
and other such marks, registered or not and/or the
Marlin Services, during the term of
this Agreement and for a period of twelve months thereafter.
COMPANY HEREBY DISCLAIMS ALL
WARRANTIES WITH RESPECT TO THE
PROGRAM AND THE COMPANY SERVICES,
INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRANTY OF MERCHANABILITY
AND THE IMPLIED WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE.
THE COMPANY SERVICES ARE
PROVIDED ON AN “AS IS” BASIS.
MARLIN SHALL NOT BE LIABLE OR
OBLIGATED UNDER ANY SECTION OF
THIS AGREEMENT, OR UNDER CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY, FOR
ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
LOST PROFITS, LOST DATA, OR
COST OF PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES IN
CONNECTION WITH THIS AGREEMENT, EVEN
IF COMPANY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT SHALL MARLIN BE
LIABLE TO DISTRIBUTOR OR ANY THIRD
PARTY IN AN AGGREGATE AMOUNT
GREATER THAN THE AMOUNT PAID TO
DISTRIBUTOR BY COMPANY
HEREUNDER DURING THE THREE MONTHS
PRECEDING THE EVENT GIVING
RISE TO THE CLAIM.
If any provision of this Agreement is
held to be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in any way.
The Parties agree to replace any invalid provision with a valid provision, which
most closely approximates the intent and economic effect of the invalid
provision. Headings are used for convenience of reference only and in no way
define, limit, construe or describe the scope or extent of any section, or in
any way affect this Agreement.
This Agreement does not confer on
either Party any rights that are exclusive. Each Party is free to contract with
others with respect to the subject matter of this Agreement.
Relationship of the
The Parties are independent
contractors and nothing in this Agreement shall make them joint venturers,
Companies, employees, agents or other representatives of the other Party.
Neither Party shall make any representation that suggests otherwise.
This Agreement will be governed by the
laws of the United States and the state of
Connecticut, without reference to
rules governing choice of laws. This Agreement may not be assigned by either
party without the prior written consent of the non-assigning party. Notwithstanding
the foregoing, Marlin may assign this Agreement to the surviving entity in the
case of a merger, acquisition or sale of all or of substantially all of its
assets without the consent of the Advocate. Subject to that restriction, this
Agreement will be binding on, inure to the benefit of, and be enforceable
against the parties and their respective successors and assigns. Our failure to
enforce your strict performance of any provision of this Agreement will not
constitute a waiver of our right to subsequently enforce such provision or any
other provision of this Agreement.