By signing up for the Rug Doctor Partner Program, you are agreeing to be bound by the following Partner Program Agreement along with the applicable Partner Exhibit (Repair Partner Exhibit, Service Partner Exhibit, Dealer Partner Exhibit, and Resolution Partner Exhibit) (collectively, the “Agreement”). The Agreement is between you, as Partner (as defined below in Section 1), and Rug Doctor, LLC (“Rug Doctor”) (together, the “Parties,” and each a “Party”).
You must read, agree with and accept all of the terms and conditions contained in this Agreement before you may become a Partner. If there is a conflict or inconsistency between this Agreement and the applicable Exhibit, the Exhibit will govern, to the extent of such conflict or inconsistency.
CLEAN CAPTIONS are provided for convenience only and are not legally binding. Please read the entire Agreement for the complete picture of your legal requirements. This Agreement governs your activities as a Partner.
- “Consumer Support” means Rug Doctor’s warranty assistance center 1-800-784-3628 (press 5 for Parts and Orders). Rug Doctor may change the Customer Support number and procedures upon notice to Partner.
- “Customer” means a customer of Partner.
- “Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.
- “Key Terms Chart” means the above chart that sets forth certain program details about Partner’s appointment under this Agreement under the applicable Partner Exhibit. Rug Doctor may revise the Key Terms Chart upon 60 days’ prior written notice to Partner. Any revision to the Key Terms Chart will apply to orders accepted by Rug Doctor after the effective date of the revision.
- “Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Rug Doctor Partner Program. The different types of Partners are listed below:
- “Dealer Partner” is a Partner that offers Rug Doctor Retail Products for purchase, in a traditional retail facility.
- “Repair Vendor Partner” is a Partner who performs warranty repair services on certain Retail Products.
- “Service Partner” is a Partner who performs maintenance on Rental Products.
- “Resolution Partner” is a Partner who assists Rug Doctor with the resolution of a Customer claim.
- “Commercial Partner” is a Partner who uses Rug Doctor products solely for their own commercial use, without rental or resale.
- “Partner Account” means a Rug Doctor Partner Program account.
- “Partner Program” means Rug Doctor’s program for Partners that provides exclusive discounts, access to resources, and the opportunity to earn revenue.
- “Partner Website” means any website(s) that are managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.
- “Retail Products” means Rug Doctor’s blue retail products including the Mighty Pro, Wide Track, X3, Mighty Pack, Deep Carpet Cleaner, Portable Spot Cleaner, cleaning solutions or any skus Rug Doctor sells outside of the rental rack.
- “Rental Products” means Rug Doctor’s red rental products including the Mighty Pro, Wide Track, X3, Mighty Pack, rental cleaning solutions or any skus Rug Doctor rents.
- “Retailer” means a business that contracts with Rug Doctor to sell or rent products.
- “Retailer Data” means information (including personal information) relating to a Retailer, including but not limited to business, financial and product information and any of Retailer’s Customer Data.
- “Rug Doctor Commercial Store” means the Rug Doctor website located at www.rugdoctorcommercial.com (or as updated from time to time) where Partners can register their Partner Account and purchase Rug Doctor products.
- “Rug Doctor Creative” means any marketing or promotional materials relating to Rug Doctor and/or Rug Doctor brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Rug Doctor Trademarks.
- “Rug Doctor Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, Rug Doctor; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
- “Rug Doctor Trademarks” means the trademarks, logos, service marks and trade names of Rug Doctor Inc., whether registered or unregistered, including but not limited to the word mark RUG DOCTOR and the Rug Doctor Logo.
- “Services” collectively means those services, functions, and responsibilities to be performed by Partner related to Rug Doctor.
- “Term” means the initial Term of this Agreement plus any renewal terms of this Agreement.
- “Warranty” means the warranty furnished by Rug Doctor in connection with a purchase of a Product.
This section assigns a specific meaning to some of the capitalized terms used in this agreement. Other capitalized terms are defined elsewhere in the Agreement.
- Partner Requirements and Responsibilities
2.1 Partner Account. To become a Partner, Partner must create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Rug Doctor may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Rug Doctor will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Rug Doctor cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of Partner Account and password.
2.2 Authority. If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.
2.3 Federal Taxpayer Identification Number (TIN). Rug Doctor requires this number on all U.S.-based Partner application documents; non-U.S. suppliers must provide a current W-8 tax certificate as a part of Partner setup process.
2.4 Insurance. Rug Doctor requires all Partners to carry general liability insurance. This type of insurance addresses legal costs or other liabilities that could result from claims or lawsuits related to your service. You may be asked to provide documentation that you have adequate insurance.
Partner must (i) provide certain information and agree that email will be our primary method of communication; (ii) make certain acknowledgments if signing up on behalf of an employer or a company; (iii) provide Rug Doctor with a Taxpayer ID; (iv) have insurance.
2.5 Marketing Activities. Partner shall bear all costs and expenses related to Partner’s marketing or promotion of Rug Doctor, and Partner’s Partner Program activities in any area, location, territory or jurisdiction, unless otherwise determined by Rug Doctor in its sole discretion. In no event shall Partner engage in any email marketing or promotion with respect to Rug Doctor and/or any Rug Doctor Related Entity unless expressly set forth in this Agreement. If Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Rug Doctor to send emails regarding the offering of Rug Doctor and Rug Doctor Related Entities to the individuals on the Opt-in List. In the event Rug Doctor approves such request, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming.” Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Rug Doctor and/or Rug Doctor Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Rug Doctor, Rug Doctor Related Entities, the Service and/or the Rug Doctor platform; and (iii) not imply that such emails are being sent on behalf of Rug Doctor or Rug Doctor Related Entities. A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Rug Doctor and/or Rug Doctor Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Rug Doctor and/or Rug Doctor Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Rug Doctor and/or Rug Doctor Related Entities; (iv) copy, resemble or mirror the look and feel of Rug Doctor’s websites, Rug Doctor Trademarks or Services or otherwise misrepresent Partner’s affiliation with Rug Doctor and/or Rug Doctor Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Rug Doctor and/or Rug Doctor Related Entities, including but not limited to, sending email communications or using any Partner Website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Rug Doctor or Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.
Partners cannot send email marketing materials about Rug Doctor without Rug Doctor’s permission. If Rug Doctor gives its permission, the messages must comply with this section and all applicable laws. Partner cannot engage in any illegal or aggressive marketing techniques on behalf of Rug Doctor. Partner must not make any false or misleading statements about Rug Doctor or represent anything that could cause harm to the credibility of Rug Doctor.
2.6 Compliance with Industry Standards and Laws. In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations. Partner shall obtain all licenses and permits and pay all fees required to comply with such laws and regulations. Partner shall provide the equipment and materials used to perform the services and provide personnel who are appropriately trained and qualified to fulfill Partner’s obligations under this Agreement.
Partner will comply with industry standards and applicable laws.
2.7 Partner Duty to Inform. Partner shall promptly inform Rug Doctor of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Rug Doctor and/or the Rug Doctor Related Entities by any third party.
Partner has to keep Rug Doctor informed about any potential claims, demands or liabilities relating to Rug Doctor of which Partner is aware.
- Partner shall have the right to subcontract some or all of the Services but no subcontracting shall release Partner from its responsibility for its obligations under this Agreement or owed to Rug Doctor. Partner shall be responsible for the work and activities of each of its contractors, including compliance with the terms of this Agreement. Partner shall be responsible for all payments to its contractors.
- Rental Product Repair. Partner shall NOT perform any Services, repairs, or warranty work on any red rental machines without written Rug Doctor approval. Further, Partner will promptly notify Rug Doctor of any red machine brought to Partner by providing Rug Doctor with the serial number, customer name, address, and telephone number.
- Mutual Warranty. Each party warrants that it: (a) will conduct business in a professional manner and compliance with all applicable laws; (b) will avoid deceptive, misleading, or unethical practices that are or might be detrimental to the other party or its products or services; and (c) will make no false or misleading representations with respect to the other party’s products or services.
- Amendments. Partner acknowledges and agrees that Rug Doctor may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Rug Doctor’s website, and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Rug Doctor will provide reasonable notice by email and posting a notice on the Rug Doctor Partner Site. Partner’s continued participation in the Rug Doctor Partner Program after the amended Partner Program Agreement is posted to Rug Doctor’s website constitutes Partner’s agreement to, and acceptance of, the amended If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Rug Doctor Partner Program.
- Use of Rug Doctor Trademarks. Other than the limited license to use the Rug Doctor Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the Rug Doctor Trademarks and/or Rug Doctor Related Entities’ names or trademarks (meaning any names and/or trademarks or any other protected marks associated with the Rug Doctor Service, Rug Doctor Inc. or the Rug Doctor Related Entities) and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).
- Payments and taxes
3.1 Payment. Partner will generate a monthly consolidated invoice for all Services, including any applicable expenses. One complete copy of the invoice is sent to Rug Doctor’s corporate office with a statement of activity for the prior period. Rug Doctor will not pay for any services that are invoiced greater than 90 days after the date services are performed. All invoices must include, at a minimum, the following information: (i) name and address of Partner; (ii) Invoice number; (iii) description of Services provided; (iv) date; and (v) dollar amount due. Partner agrees to pay Partner for Services rendered in the amounts set forth in the applicable Exhibit after the receipt of a correct invoice from Partner. Rug Doctor will pay all undisputed invoice amounts within 45 days of invoice date. Any disputed invoice amounts will be documented in writing and forwarded to Partner within 45 days of invoice receipt. Within 45 days of Partner’s receipt of documentation of disputed amounts, Partner will have responded to Rug Doctor’s claim. Upon resolution of disputed items in favor of Partner, payment will be remitted within 10 days. If the resolution of disputed items is in favor of Rug Doctor and not contested, no further action is required.
3.2 Taxes. Unless otherwise provided for in the applicable Exhibit, or in a Statement of Work, Partner’s pricing and fees for professional services are exclusive of applicable federal, state, local and foreign taxes, duties, assessments and levies attributable to the provision of Partner’s services. Partner is solely liable and shall not be allowed to bill Rug Doctor for any Taxes based on or measured by Partner’s property, capital, income or receipts. Any sales, value added, or other tax properly imposed by a jurisdiction in connection with Partner’s services (“Taxes”) shall be Partner’s responsibility. Any such Taxes required to be collected by Partner must be separately stated on the invoice unless Rug Doctor provides Partner with a valid tax exemption certificate. Partner will indemnify and hold Rug Doctor harmless from all interest, fines, and penalties related to payment of back Taxes that Partner failed to collect.
Rug Doctor will pay Partner monies owed within 45 days of invoice. Partner will collect and pay taxes.
4.1. Termination. Rug Doctor may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner. Partner may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Rug Doctor. Fraudulent or other unacceptable behavior by Partner, as determined by Rug Doctor in its sole discretion, may result in the termination of Partner’s within Partner Account, suspension of some or all Partner privileges under the Rug Doctor Partner Program, or termination of Partner Account entirely without notice to, or recourse for, Partner.
Either Rug Doctor or Partner can end this agreement at any time by providing notice to the other. If there is fraud or any other unacceptable behavior by Partner, Rug Doctor can suspend Partner’s privileges or end the agreement without notice.
4.2. Consequences of Termination. Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Rug Doctor Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Rug Doctor Creative and/or any Rug Doctor Trademarks on any Partner Website or otherwise; and (c) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access Partner Account or to receive any payments of Fees under this Agreement, unless otherwise determined by Rug Doctor in its sole discretion.
If the agreement ends, you must stop using and return to Rug Doctor all Rug Doctor creative material and Rug Doctor’s trademarks and logos and Partner will no longer be permitted to access Rug Doctor Products from Rug Doctor, unless otherwise determined by Rug Doctor in its sole discretion.
- Intellectual Property Rights
5.1 Rug Doctor Creative. All Rug Doctor Creative will be solely created and provided by Rug Doctor unless otherwise agreed to by Rug Doctor in writing in advance. Rug Doctor will provide Partner with copies of or access to Rug Doctor Creative. The Rug Doctor Creative may also be accessible from Partner Program website and the Rug Doctor brand guidelines (“Rug Doctor Trademark Usage Guidelines”). By using the Rug Doctor Creative, you indicate your acceptance of our Rug Doctor Trademark Usage Guidelines, and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the Rug Doctor Creative. The Rug Doctor Creative is provided “as is” and without warranty of any kind. Partner may display Rug Doctor Creative on Partner Websites solely for the purpose of marketing and promoting Partner’s Service and any Rug Doctor brands promoted by Rug Doctor and by Rug Doctor Related Entities during the term of this Agreement, or until such time as Rug Doctor may, upon reasonable prior notice, instruct Partner to cease displaying the Rug Doctor Creative. Partner may not alter, amend, adapt or translate the Rug Doctor Creative without Rug Doctor’s prior written consent. Nothing contained in any Rug Doctor Creative shall in any way be deemed a representation or warranty of Rug Doctor or any of Rug Doctor Related Entity. The Rug Doctor Creative shall at all times be the sole and exclusive property of Rug Doctor and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Rug Doctor to make changes or modifications to the Rug Doctor Creative.
Partners may promote Rug Doctor using the creative materials provided by Rug Doctor. The creative materials Rug Doctor provides belong to Rug Doctor, cannot be changed and must be used only to promote the Rug Doctor Services and Rug Doctor brand.
5.2 Rug Doctor Trademarks. During the term of this Agreement, Rug Doctor hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Rug Doctor Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Rug Doctor’s Trademarks only as permitted under this Agreement; (b) it will use the Rug Doctor Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Rug Doctor in writing from time to time, including but not limited to the Rug Doctor Trademark Usage Guidelines; (c) the Rug Doctor Trademarks are and shall remain the sole property of Rug Doctor; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Rug Doctor Trademarks and all use thereof by Partner shall inure to the benefit of Rug Doctor; and (e) Partner shall not, now or in the future, contest the validity of any Rug Doctor Trademarks or use any term or mark confusingly similar to any Rug Doctor Trademarks.
Rug Doctor owns the Rug Doctor Trademarks entirely, and Partner agrees to use them only in accordance with the Agreement.
5.3 Restrictions on Partner’s Use of the Rug Doctor Trademarks. Notwithstanding Section 5.2, Partners shall not use any Rug Doctor Trademark including but not limited to the shopping bag logo or the word mark RUG DOCTOR or variations of the word “Rug Doctor” in Partner’s business name, logo, products or services, including without limitation, the name or design of any Application or Theme, unless granted express written permission by Rug Doctor in advance of such use.
Partners cannot use the word “Rug Doctor,” or the Rug Doctor shopping bag logo, or other Rug Doctor trademarks in the name or design of Partner’s business or logo, or any Partner product or service (including Apps or Themes) without permission.
5.4 Proprietary Rights of Rug Doctor. As between Partner and Rug Doctor, the Rug Doctor Creative, Rug Doctor Trademarks, all demographic and other information relating to Retailers including Referred Retailers, prospective Partners and Partners, Rental Products, Retail Products, Customer Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Rug Doctor and/or Rug Doctor Related Entities or otherwise related to the Rug Doctor Partner Program, Rug Doctor and/or Rug Doctor Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Rug Doctor Property”) shall be and remain the sole and exclusive property of Rug Doctor. To the extent, if any, that ownership of any Rug Doctor Property does not automatically vest in Rug Doctor by virtue of this Agreement, or otherwise, Partner hereby transfers and assigns to Rug Doctor, upon the creation thereof, all rights, title and interest Partner may have in and to such Rug Doctor Property, including the right to sue and recover for past, present and future violations thereof.
All of the information, property and intellectual property you have access to as a result of your participation in Partner Program belongs entirely to Rug Doctor.
6.1. Definition of Confidential Information. “Confidential Information” shall include, but shall not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, Retailer Data, Customer Data, product designs, sales, costs, price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
6.2 Confidentiality. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained under this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (a) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (b) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (c) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.
Both Rug Doctor and Partner agree to use Confidential Information only to perform the obligations of the Agreement. Confidential Information must be protected and respected.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
7.1 Disclaimer of Warranty. The Rug Doctor Partner Program, the Rug Doctor Trademarks, and the Rug Doctor Creative are provided “as-is.” Rug Doctor makes no warranties under this Agreement, and Rug Doctor expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Rug Doctor further disclaims all representations and warranties, express or implied, that the Service, the Rug Doctor Trademarks or the Rug Doctor Creative do not infringe or otherwise violate any intellectual property or another proprietary right of any third party in any jurisdiction. Partner understands and agrees that the Rug Doctor Partner Program, the Rug Doctor Trademarks, the Rug Doctor Creative, may not satisfy all of Partner’s or Retailer’s requirements and may not be uninterrupted, error-free or free from harmful components.
Which means: Rug Doctor makes no warranties about the Rug Doctor Partner Program, the Experts program, the Plus Partner Program, the Service, the Rug Doctor Trademarks or the Rug Doctor Creative.
7.2 Limitation of Liability and Indemnification. LIMITATION OF LIABILITY. RUG DOCTOR’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE LESSER OF: (A) FIFTY PERCENT (50%) OF THE AMOUNTS PAID UNDER THIS AGREEMENT BY PARTNER TO RUG DOCTOR DURING THE PREVIOUS TWELVE (12) MONTH PERIOD FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE LIABILITY; OR (B) US $10,000 (TEN THOUSAND UNITED STATES DOLLARS). EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY), 8 (INDEMNIFICATION), OR ANY MISAPPROPRIATION OF ANY RUG DOCTOR INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO CIVIL ACTION WILL BE FILED AGAINST RUG DOCTOR WITH RESPECT TO RUG DOCTOR’S LIABILITY UNDER THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
Rug Doctor is limiting its liability with regard to the Rug Doctor Partner Program, the Rug Doctor Trademarks, Rug Doctor Creative, the relationship between Partner and any Retailer, and Rug Doctor’s obligations under the Agreement. If there is a liability owed to Partner by Rug Doctor, Rug Doctor will provide no more than half of the amounts that were paid to Partner in the past twelve months or $10,000.
8.1 Indemnification. Partner agrees to indemnify, defend and hold harmless Rug Doctor and any Rug Doctor Related Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Rug Doctor and Rug Doctor Related Entities granted by Partner to any Retailer, prospective Partner or other third party; (d) Partner’s breach of any term of this Agreement or the Retailer Agreement; (e) any third party claim that Partner’s products or services, including without limitation any Application or Theme, infringes the intellectual property or other rights of a third party; (f) the performance, non-performance or improper performance of Partner’s products or services; and (g) Partner’s relationship with any Retailer.
Partner will cover all costs associated with a claim made against, or liabilities incurred by, Rug Doctor if it is caused by Partner’s breach of this Agreement, Partner’s gross negligence or willful misconduct, promises made by Partner to third parties about Rug Doctor, Partner’s products or services, Partner’s infringement or violation of the intellectual property or other rights of a third party, or Partner’s relationship with a Retailer.
8.2 Notice of Indemnification. In claiming any indemnification under this Agreement, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
Rug Doctor will notify Partner of any claims and may choose to assist in the defense.
8.3 Non-Exclusive Remedies. If there is any breach or threatened breach by Partner, Rug Doctor shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s engagement under this Agreement, (c) receive a prompt refund of all amounts paid to Partner under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by Rug Doctor in connection with such violation, in accordance with the provisions of this Section 8.
Which means: If Partner breaches its obligations with respect to Partner’s responsibilities (Section 2), Rug Doctor’s intellectual property or other proprietary rights (Section 5) or confidentiality (Section 6), Rug Doctor has rights outside of "breach of contract."
- General provisions
9.1 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing by a force majeure event shall nevertheless use its best efforts to recommence its performance as soon as reasonably practicable and to mitigate any damages resulting from its non-performance.
In case something serious happens outside the control of either Rug Doctor or Partner, both will be excused from performance of duties to the extent that such event affects either Party’s ability to perform such duties.
9.2 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
Both Rug Doctor and Partner are independent contractors, and there is no relationship of agents, representatives, or otherwise between us.
9.3 Non-Disparagement. Partner agrees to take no action which is intended, or would reasonably be expected, to harm Rug Doctor or its or their reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to Rug Doctor.
If you’re going to be our Partner, don’t say bad stuff about us.
9.4 Non-Exclusivity. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so.
Both Rug Doctor and Partner are non-exclusive to each other, and each can enter into similar arrangements with others, as long as that party does not use the other party’s confidential information.
9.5 Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in Partner Account, and to legal.department@RugDoctor.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in Partner Account, and for Rug Doctor to 2201 W. Plano Parkway, Suite 100, Plano, Texas 75075, Attention: Legal Department.
Notice is considered to be sent on the day it is emailed or hand delivered, 2 days after it is given to a courier, or 5 days after it is placed in the mail.
9.6 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
If a provision is not enforced by either party, it does not mean that they are waiving their rights to enforce that provision in the future.
9.7 Entire Agreement. This Agreement, including any Exhibit, and all guidelines and other documents linked or otherwise reference in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
This Agreement and the documents it links to and references are the entire agreement governing the relationship between Rug Doctor and Partner under Partner Program, and it replaces any previous agreements.
9.8 Assignment. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Rug Doctor shall be permitted to assign this Agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without Rug Doctor’s prior written consent, to be given or withheld in Rug Doctor’s sole discretion.
Partner cannot assign away or transfer this Agreement to another party without Rug Doctor’s consent.
9.9 Governing Law and Jury Waiver. This Agreement will be governed by the laws of the State of Texas, United States of America, without regard to conflict of law principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in Collin County, Texas, for resolution of any disputes arising out of this Agreement. Notwithstanding the foregoing, either Party may seek injunctions to prevent and/or stop any breach of, and otherwise enforce, the provisions of Section 7 (Confidential Information), and Rug Doctor may seek injunctions to prevent and/or stop any infringement of, and otherwise enforce its Intellectual Property Rights of whatever nature, in the courts of any country, state, or other territory which accepts jurisdiction. BOTH PARTIES WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
This Agreement is covered by the laws of Texas. If anything were to go wrong, Collin County, Texas is where the issue would be litigated.
9.10 Data Retention Industry Standards. If Partner has access to Customer Data or Retailer Data, Partner: (i) shall only use or store such information for the purpose of providing Partner’s services, and shall not share, sell, disclose or otherwise provide such information to any third party; (ii) shall not communicate with Customers directly or indirectly, but Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) shall only store such information for as long as reasonably necessary to provide Partner’s services; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of Partner’s services; and (vi) shall notify Rug Doctor of any actual or suspected breach or compromise of Retailer Data (a “Data Breach”) within 2 business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its cost, Partner will: (a) promptly remedy the Data Breach to prevent any further loss of Retailer Data; (b) investigate the incident; (c) take reasonable actions to mitigate any future anticipated harm to Rug Doctor, Retailers or Customers; and (d) regularly communicate the progress of its investigation to Rug Doctor and cooperate to provide Rug Doctor with any additional requested information in a timely manner.