Terms & Conditions – Affiliate Program
By accessing, browsing, or otherwise signing up for the affiliate program:
- You are of a legal age to form a binding contract with SpiritRivers.
- You have the authority to enter into these terms personally or on behalf of the entity you represent. If you do not agree to be bound by these terms, you may not access or sign up to SpiritRivers affiliate program.
The “Effective Date” of this Agreement is the date on which you sign up for the Affiliate Program.
The terms of this Affiliate Program (“Agreement”) is between SpiritRivers (“SpiritRivers”) operating under the jurisdiction of Mexico, and the person or entity signing up for the Affiliate Program (“Affiliate Partner/You”).
In consideration of the terms and conditions set forth below, the parties agree as follows:
Subject to the terms and conditions of this Agreement, SpiritRivers hereby grants to Affiliate Partner during the term a limited, non-transferable, revocable and non-exclusive right to market and refer SpiritRivers’ Products and/or Services to prospective customers.
Scope of the Referral Process
Affiliate Partner is eligible to receive a referral commission only if Affiliate Partner submits a referral to SpiritRivers which meets the requirements set forth under this Agreement (“Qualified Referral”). SpiritRivers shall, at its sole discretion, decide whether a referral constitutes a Qualified Referral.
Affiliate Partner shall submit all referrals through the referral URL provided by SpiritRivers for the same (“Referral Link”).
For abundant clarity, a referral submitted by Affiliate Partner through any other mode of communication, including without limitation, via a phone call or an e-mail including self-referrals shall not be considered Qualified Referrals.
Affiliate Partner agrees not to negotiate terms or make commitments on behalf of SpiritRivers. SpiritRivers shall collect the applicable subscription charges for the SpiritRivers Products and/or Services directly from the Customer.
Affiliate Partner shall be entitled to a commission only if a Qualified Referral turns into a paying Customer of SpiritRivers within three (3) months from the date a referral is submitted by the Affiliate Partner (“Conversion Period”) and with a subscription term equal to or greater than one (1) month. On a case-by-case basis, the parties may mutually agree in writing to waive or extend the Conversion Period for a Qualified Referral.
- Ineligible Referrals:
When someone subscribes to a SpiritRivers Products and/or Services pursuant to the Affiliate Partner’s sales and marketing efforts in accordance with this Agreement, SpiritRivers shall, at its sole discretion determine if such subscriber is a Qualified Referral. Referrals ineligible for a referral commission are set forth as per described below.
- Existing customers Referrals who are SpiritRivers’ existing Customers prior to the referral are not eligible to receive referral commission.
- Existing Opportunities: Referrals that convert into leads that are materially the same (i.e., same entity) as opportunities that are in SpiritRivers’ or SpiritRivers’ resellers active sales process at the time of the referral or were in process during the ninety (90) days prior to the referral submission, are not eligible for referral commission.
- One-Off Services: Fees for support, implementation, customization, training, consulting or other professional services, or for referring third-party products or services are not eligible for referral commission. Only the monthly net recurring revenue will be taken into account to calculate affiliate commission to be pay out to the affiliate.
- Multi-years Subscriptions: Customers with a term of more than one year are only eligible for referral commission with respect to the First Year Net Revenue.
- Failure to Follow Process: Referrals where the Affiliate Partner has failed to follow the process set out in this agreement are not eligible for referral commission.
- Self-Referrals: Referrals referred by Affiliate Partner are not eligible for referral commission where (i) the referred lead is the Affiliate Partner itself or an entity that the Affiliate Partner owns or is an employee in; or (ii) where the referred lead is an affiliate of the Affiliate Partner. If the Affiliate Partner makes a self-referral, SpiritRivers may, at its discretion, terminate this Agreement and cease paying commissions for such self-referral.
- Referral Link: Referrals submitted by the Affiliate Partner without using the Referral Link or before signing up for the Affiliate Program are not eligible to receive any commissions under this Agreement.
Affiliate Partner shall be entitled to receive a commission equivalent to up to 20% (commission rates are variable depending on the type of events) of the net monthly recurring revenue paid by the Customer to SpiritRivers. The first payment will be due once a minimum of 100 USD have been accrued for the affiliates resulting of customer referred to SpiritRivers, and when the full payment has been made by the participant into one of our programs.
The commission is bounded by the net recurring revenue generated by the customer including the changes or termination of its contract with SpiritRivers. This refer to any change in subscription including the increase and decrease of net revenue generated the Customer, as well as the termination of the Customer contract with SpiritRivers.
First Year Net Revenue:
Once a Qualified Referral becomes a paying Customer, the Affiliate Partner is entitled to receive a referral commission for the entire period bounding SpiritRivers to the Customer provided, however, if the Customer’s subscription to SpiritRivers products and/or services is terminated, Affiliate Partner will not be entitled to receive commission following the date of such termination. The referral commission is based on the applicable referral commission rate applied on all invoice amounts realized by SpiritRivers for eligible SpiritRivers Products and/or Services associated with such Qualified Referral including without limitation, net of any discounts, taxes payable and subsequent refunds not attributable to SpiritRivers’ invoicing error or breach.
(“First Year Net Revenue”). If an order executed in connection with a Referral is a multiyear order, commission will be based only on the First Year Net Revenue, the payment of commission due for the following years will be paid following the anniversary date of the subscription.
SpiritRivers will calculate referral commission for each Qualified Referral on a monthly basis, and such commission will be disbursed to the Affiliate Partner’s PayPal Account on the 20th of the month following the full payment by the Customer.
Affiliate Partner can realize the commissions paid by SpiritRivers in accordance with the terms and conditions applicable on the usage of its Account. Once the commission is processed at SpiritRivers’ end, SpiritRivers shall not be responsible for any failure of the Affiliate Partner to realize the commission amounts from its PayPal Account. Additionally, SpiritRivers shall be solely responsible to provide technical support to the Affiliate Partner for access and usage of their SpiritRivers Affiliate Program Account.
Referral Commission Refunds:
If SpiritRivers makes a referral commission payment to Affiliate Partner in error, or if a Qualified Referral fails to make required first-year subscription charge payments to SpiritRivers within sixty (60) days of the payment due date, or if the applicable contract between SpiritRivers and the Qualified Referral is terminated before its agreed upon expiration date, SpiritRivers shall be entitled to a refund of the corresponding referral commission payments made to such Affiliate Partner (provided that if a non-paying customer does ultimately pay all amounts due, SpiritRivers will repay Affiliate Partner the applicable commissions minus a deduction for collection and administrative costs, not exceeding half of the total commission). SpiritRivers may, in its sole discretion, choose to either offset such refundable amounts against commissions SpiritRivers owes to Affiliate Partner hereunder, or invoice Affiliate Partner for the refundable amounts; invoiced amounts are due and payable within thirty (30) days of the invoice date. SpiritRivers’ right to a refund of which SpiritRivers has not notified Affiliate Partner will expire ninety (90) days after the one-year anniversary of the start date of the applicable order.
Affiliate Partner Responsibilities
Affiliate Partner represents and warrants that it shall:
- Not send unsolicited communications, junk email, spam or other forms of duplicative or unsolicited messages to leads.
- Not use banners or links on newsgroups, chatrooms, message boards, banner networks, hit farms, guest books etc.
- Not run any pay-per-click campaigns competing with SpiritRivers advertising activity.
- Not have more than one SpiritRivers Affiliate Program Account.
- Use only materials given by SpiritRivers for Affiliate Partner’s sales and marketing efforts.
- Not engage in excessive telemarketing activities for promoting SpiritRivers Products and/or services.
- Not promote SpiritRivers on sites containing unlawful, hateful, abusive or pornographic content.
- Not promote SpiritRivers by promoting incentive programs such cash back, vouchers, retro-commission, or any other derivative incentive programs aiming to offer a lower pricing than SpiritRivers.
- Adhere to SpiritRivers’ Business Partner Standards of Conduct located at the URL: SpiritRivers Business Partner Code of Conduct
Including (“Standards”) and all applicable laws in the performance of its obligations under this Agreement.
Intellectual Property Rights
SpiritRivers and its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to SpiritRivers products and/or services.
SpiritRivers hereby grants Affiliate Partner, a term based, territory based, revocable right to display, publicly perform and publish SpiritRivers trade name, logo or trademark (“Marks”) solely with regard to the promotion of the SpiritRivers products and/or services to potential customers.
While in exercise of rights under this license, it shall be the responsibility of Affiliate Partner to ensure that :
- The Marks are used only to denote the origin and ownership of SpiritRivers products and/or services.
- It will comply with SpiritRivers’ effective policies (current or updated version thereof) relating to the use of its marks.
- It shall not materially modify the marketing materials provided by SpiritRivers in any way that causes Affiliate Partner to misrepresent the technical capabilities, features or functions of the SpiritRivers products and/or services. It is clarified that Affiliate Partner will not, by virtue of the foregoing license, acquire any right, title or interest in SpiritRivers’ Marks or Products and all rights thereto are reserved by SpiritRivers.
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to :
- Not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement.
- Except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. To the extent the information shared under this Agreement constitutes personal data as defined under applicable data protection laws, both Affiliate Partner and SpiritRivers will comply with the same. Any personal data of the Affiliate Partner that SpiritRivers may receive shall be processed in accordance with SpiritRivers private policy which is included herein by reference.
This Agreement will continue until either party terminates this Agreement. SpiritRivers may terminate this Agreement at any time without cause and without liability upon intimation to the Affiliate Partner.
Affiliate Partner may terminate this Agreement upon sixty (60) days written notice to SpiritRivers. SpiritRivers may also immediately terminate this Agreement for:
- Any breach of this Agreement by the Affiliate Partner
- Any reach of Section 3.A of this Agreement
- Bringing in spam leads or failing to bring in sufficient Qualified Referrals who turn into paying Customers during the term of this Agreement.
- Bringing in leads with an abnormal amount of credit card rejection occurring extra-payment fees.
- Any case of fraud suspected or activity exploit terms and conditions as per described by the affiliate program agreement.
Effect of Termination
Upon termination of this Agreement, Affiliate Partner agrees to cease all marketing and promotional activities and all further use of the SpiritRivers products and/or services, and the parties shall return or confirm destruction of the other party’s Confidential Information provided pursuant to this Agreement.
SpiritRivers may provide links or access to third party software or services. The use of any such third-party software and services are governed by the terms of the third-party provider and are binding on Affiliate Partner. SpiritRivers does not provide any warranties and has no liability or obligations to the Affiliate Partner, with respect to usage of such third-party software and services including the SpiritRivers Affiliate Program Account created by the Affiliate Partner.
Affiliate Partner will indemnify and hold SpiritRivers and its affiliates harmless against any claim brought by a third party against SpiritRivers and its respective employees, officers, directors, and agents arising from or related to use of the Marks by Affiliate Partner in breach of this Agreement.
Limitation of Liability
- Neither party shall be liable for any exemplary, special, indirect, consequential or incidental damages of any kind (including without limitation lost profits, loss of use, loss of business, or loss of profit or revenue), even if such party has been advised of the possibility of such damages. The limitations on either party’s liability under this section shall not apply to lability for death, personal injury of a physical nature or damage to tangible property caused by either party’s gross negligence or intentional misconduct.
- SpiritRivers’ aggregate liability under this agreement, regardless of the form of action, will not exceed the commission paid to affiliate partner by SpiritRivers in the 6 (twelve) months preceding the claim.
- The foregoing states the entire liability of each party with regard to this agreement, the products and/or services provided hereunder.
Governing Law and Dispute Resolution
This Agreement shall be governed by the laws of Mexico, without regard to conflict of laws principles. Any dispute or claim arising out of or relating to this Form shall be determined by arbitration in Mexic City. The arbitration shall be administered by Mexican competent authority pursuant to its arbitration rules and procedures.
- Injunctive Relief:
The Affiliate Partner expressly agrees that SpiritRivers shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Affiliate Partner. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the SpiritRivers may otherwise have under law.
During the Term and one (1) year thereafter, Affiliate Partner shall not, either directly or indirectly engage with a SpiritRivers Employee outside the scope of this Agreement; or induce a SpiritRivers employee to terminate their employment. “SpiritRivers Employee” shall mean and include the Employees or consultants of SpiritRivers, its holding, subsidiaries and affiliates.
- No Assignment:
Except to its affiliates and/or within group companies, neither Party shall assign any part of this Agreement or its respective rights or obligations under this Agreement without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
From time to time, SpiritRivers may modify this Agreement. Unless otherwise specified by SpiritRivers, changes become effective for Affiliate Partner after the updated version of this Agreement goes into effect.
- Severability – No Waiver:
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain in effect. Delay or non-exercise of any right under or provision of this Agreement by either party does not constitute a waiver of that right or provision of this Agreement.
Sections 4 (Intellectual Property), 5 (Marketing), 6 (Confidentiality), 9 (Indemnification), 10 (Limitation of Liability), 11 (Governing Law), 12 (F) (Survival), 12 (H) (Notices), 12 (I) (Entire Agreement) and will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
Relationship between the Parties:
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
All notices to be provided by either Party to the other under this Agreement may be delivered in writing by email or postal delivery service (“Courier”) to the contact mailing address provided by the parties.
This Agreement, together with SpiritRivers’ Business Partner Standards of Conduct constitutes the entire agreement and supersede any and all agreements between SpiritRivers and Affiliate Partner with regard to the subject matter hereof.
Customer means a Qualified Referral that has entered into an agreement with SpiritRivers to procure the SpiritRivers products and/or services pursuant to the Affiliate Partners marketing and promotional activities under this Agreement.
Affiliate Program means the program initiated by SpiritRivers where entities and persons who sign up as Affiliate Partners are required to market and refer eligible SpiritRivers products and/or services to prospective customers in consideration for a commission from SpiritRivers.
GetSpiritRivers Affiliate Program Account means the account created by the Affiliate Partner with SpiritRivers which it uses to realize the commissions paid under this Agreement.