Segway
Program Terms
Segway Affiliated Sales Agreement
Subject to the terms and conditions herein, this Referral Program Agreement (“Agreement”) is made and entered into by and between Segway Inc. with its principal place of business located at 2350 w. Valley Blvd., Alhambra, CA, 91803 (hereinafter “Segway”) and the person or company that agrees to refer potential customers to Segway per the terms and conditions of this Agreement (hereinafter “Referral Partner”, “you” or “your”).
1. Offer and Acceptance, Effective Date.
(a) By submitting the referral partner registration form and clicking on the relevant button on the website page, you offer to provide certain customer referral services as set forth in Section 2 to Segway and per the terms and conditions of this Agreement.
(b) The offer is subject to Segway’s proper acceptance, and the Agreement shall only become effective and binding on the parties upon such acceptance. If your offer is accepted by Segway, Segway would send you a written confirmation clearly and explicitly evidencing its acceptance, and in absence of such written confirmation of acceptance, your offer shall be deemed as not accepted by Segway.
(c) The Agreement is effective on the date that you receive the written confirmation of acceptance from Segway per Section 1(b) (“Effective Date”).
(d) You acknowledge and agree that you have read, understand all of the terms and conditions of this Agreement, and you further agree that upon Segway’s acceptance of your offer, you would provide the Services per such terms and conditions, which also include your duty to comply with any other applicable rules and/or policies related to the Services and sales of Products that Segway may provide and/or communicate to you from time to time. If you do not agree with the terms and conditions set forth herein, you must not make the offer or provide the referral Services described herein.
2. Referral Services.
(a) In exchange for the opportunity to earn Commission as set forth in Section 4 below, you agree to (i) provide the customer referral services to Segway by marketing and promoting Segway's Consumer Electronics Products that include without limitation Ninebot by Segway KickScooter ES1, Ninebot by Segway KickScooter ES2, KickScooter ES4, Ninebot S White, Ninebot S Black, Ninebot Gokart Kit, Segway Drift W1,Loomo and Segway S-PLUS (previously called miniPLUS) (“Products”) to potential customers of such Product, any related and/or ancillary services for the foregoing purpose (collectively “Services”), and (ii) terms and conditions of this Agreement.
(b) Segway hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to market and promote the Products.
3. Registration Process; Referred Customers.
(a) Registration Process and Potential Customer. Segway will provide you an access to an affiliate portal and you must register each potential customer in the affiliate portal by providing, at a minimum, the first and last name of the contact, email address, company name, size and URL and any other information requested by Segway. Segway shall have the right to amend the process described herein upon notice to you and reject any potential customer in its sole and absolute discretion.
(b) Referred Customer. If a potential customer registered by you purchases Products within twelve (12) month period upon the registration, this customer shall be considered as a “Referred Customer”.
4. Commission.
(a) Commission. During the term of this Agreement, you may earn certain commission subject to the following terms and conditions: for the initial twelve (12) month commencing upon Segway’s acceptance of a potential customer that you register, you would receive a commission in an amount equal to two percent (2%) of purchase price (excluding tax, shipping fees and any other third party charges related to the sales and delivery of the Product, if any) that such potential customer pays for any Product (“Commission”). In an event of chargeback (including associated fees), credit and refund is issued by Segway within its sole discretion to a Referred Customer (“Canceled Transaction”), you acknowledge and agree that you shall not earn any Commission from Cancel Transaction. If you receive any Commission from Canceled Transaction regardless of reason, Segway may either directly deduct the same amount from further Commission that you earn or per Sharesale’s request, you shall promptly return it to Segway. Despite of anything to the contrary, you may earn Commission only if (i) you follow the process described herein, (ii) Segway receives full payment (including Product price and any other fees and charges related to the sale of Product, such as tax and shipping fees) from such Referred Customer; and (iii) you are not in breach of this Agreement.
(b) Payment. If in any month store.segway.com receives full payment from a Referred Customer, Sharesale shall pay you Commission earned from such payment in the next calendar month.
(c) Tax. You shall be solely responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any Commission that you earn; any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to Commission are for your account, and you hereby agree to pay such taxes.
5. Product Price. Segway shall have the right, within its sole discretion, to decide on the price, any additional fees, expenses and/or charges, and terms and conditions on the sales of Product to Referred Customers and the public, which may be changed, amended and/or modified by Segway within its sole discretion from time to time without further notice.
6. Independent Contractor and NO Agency Relationship. Segway and you are independent contractors, and nothing contained in this Agreement shall be construed to constitute either party as a partner, franchiser, or employee of the other. Neither party in its dealings with third parties shall hold itself out as a partner, franchisee, agent or employee of the other party. Neither party shall have authority to make any agreements or incur any liability on behalf of the other party, nor shall either party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other.
7. Prohibited Conducts.
(a) Your introduction and/or descriptions of the Products shall be limited to the marketing information provided by Segway, and you shall not make any representations, warranty, guarantee, and/or statement with respect to quality, warranty, functions, features, characters, specifications and any other aspect of Products that are inconsistent, conflicting with and/or contrary to with the terms, marketing materials and/or other literature provided by Segway.
(b) You shall refrain from engaging in any illegal, false, unfair/deceptive business practices, false advertising, or misleading activities with respect to Products, Services, Segway and its affiliates. You shall not violate law.
8. Intellectual Property and Limited License.
(a) You acknowledge Segway and affiliates’ intellectual property rights and ownership in Segway and Ninebot’s trademarks, whether registered or unregistered, including the listed registrations and applications and any registrations, which may be granted pursuant to such applications, (“Trademarks”), Products, and marketing materials and assets (collectively “Segway IPs”). All rights in and to the Segway IPs and the associated goodwill arising from and relating to your use of Segway IPs will inure to the benefit of Segway, and you shall not do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing Segway’s right, title and interest in Segway IPs. Segway has the right to discontinue and/or alter the form, shape and/or artwork and/or content of Segway IPs.
(b) Subject to Segway and is affiliate’s Trademark policy and brand guidance, which may be amended from time to time in their sole discretion, and the terms and conditions of this Agreement, Segway hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable at will license in the U.S.A., during the term of this Agreement, to use certain Segway IPs that Segway actually delivers to you or explicitly permit you to use in writing for the sole purpose of the Services.
(c) Segway may grant you the right to access and use the Products solely for demonstration purpose. You shall not (i) modify, adapt, alter, translate, copy, perform or create derivative works on the Products; (ii) merge or bundle the Products with other products; (iii) sublicense, lease, rent and/or loan the Products; (iv) reverse engineer, decompile, disassemble and/or otherwise attempt to derive the source code of the Products; (v) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the Products; (vi) access and/or use the Products in order to develop a product and/or service which competes with the Products, (vii) otherwise use, copy and/or distribute the Products except as expressly allowed hereunder, and (viii) attach any other trademark, logo and/or trade designation to the Products unless expressly agreed in writing by Segway. Segway reserves the right at any time to review your use of Segway IPs to determine if such use is in compliance with this Agreement. In the event Segway desires to include your information on its referral partner website at any time during the term of this Agreement, you hereby grant to Segway a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by you on such referral partner website.
(d) Despite of anything to the contrary, the rights and/or licenses granted to you under Section 8 shall be automatically revoked and terminated upon termination and/or expiration of this Agreement.
9. Confidential Information and Privacy.
(a) Confidential Information. All non-public, confidential or proprietary information of Segway, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Segway to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Segway in writing (“Confidential Information”). Upon Segway’s request, you shall promptly return all documents and other materials received from Segway. Segway shall be entitled to injunctive relief for any violation of Section 9. Confidential Information shall not include the information that is: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure directly or indirectly by you); (ii) was available to you on a nonconfidential basis from a source other than Segway or its affiliates, provided that such source is not and was not bound by a confidentiality agreement regarding the confidential information; or (iii) has been independently acquired or developed by you without violating any of your obligations under this Agreement.
(b) Privacy. You acknowledge and agree that you shall comply with all applicable privacy laws and have read and agree to Segway’s privacy policy and may be changed from time to time in Segway’s sole and absolute discretion.
10. Representations, Warranties and Covenant.
(a) You. You represent and warrant that you (i) possess full power and authority to enter into this Agreement, (ii) have the proper skill, training and background to perform the Services in a competent and professional manner. You (i) will use due diligence in safeguarding the interests of Segway in accordance with this Agreement and any policies and procedures provided to you by Segway; and (ii) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency.
(b) Segway. Segway warrants that Segway possesses full power and authority to enter into this Agreement and has the ability to grant the rights described herein.
(c) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
11. Indemnification. You agree to defend, hold harmless and indemnify Segway, its directors, employees, officers, affiliates, successors, and agents (“Indemnified Party”) from and against any and all actual or threatened disputes, claims, actions, suits, proceedings (whether in court, arbitration or a matter before a governmental authority having jurisdiction over the subject matter) (each a “Claim”), costs, liability, damages and expenses (including, reasonable attorney’s fees, costs and expenses), which arise out of or are related to any third party claims caused by your breach of this agreement. The Indemnified Party will promptly notify you of any Claim for which indemnification is sought. Failure to provide such notification will not relieve you of your indemnification obligations, except to the extent that you can prove actual prejudice attributable to such failure. Indemnified Party shall have the right to control over the defense of the Claim and any negotiation for its settlement or compromise. You shall not without the prior written approval of Indemnified Party, made any admissions or offers of settlement concerning the Claim. You shall cooperate with Indemnified Party at your cost, in the investigation and defense of any Claim covered by this indemnity. Indemnified Party shall be entitled to separate legal counsel in the event of a conflict of interest in the defense of the parties, and the fees and costs of such separate counsel shall be paid by you.
12. Limitation of Liability.
(a) (i) SEGWAY-NINEBOT PARTY’S (INCLUDING SEGWAY INC, NINEBOT, AND THEIR AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES, OFFICERS, SUCCESSORS, AGENTS, AND INDEPENDENT CONTRACTORS AND OTHER SERVICE PROVIDERS) LIABILITY TO YOU, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER THEORY, SHALL NOT EXCEED THE TOTAL AMOUNT OF COMMISSION THAT YOU ACTUALLY RECEIVE UNDER THIS AGREEMENT WITHIN SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CLAIM. (ii) IN NO EVENT SHALL EITHER SEGWAY-NINEBOT PARTY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, INDEMNIFICATION LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (iii) THE FOREGOING LIMITATIONS OF LIABILITY APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(b) You acknowledge and agree that Segway-Ninebot Party is not liable for the performance of any third-party products and/or services used in relation to this Agreement.
13. Term and Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the terms and conditions of this Agreement.
(b) Termination for Convenience. Either party may terminate this Agreement for convenience upon thirty (30) day prior written notice to the other party.
(c) Termination for Cause. (i) If a party materially breaches this Agreement (“Defaulting Party”), and the Defaulting Party fails to cure such breach within five (5) days after its receipt of written notice of such breach from the other party (“Non-Breaching Party”), or (ii) within the sole discretion of the Non-Breaching Party, breach of agreement is incurable, the Non-Breaching Party may terminate immediately terminate this Agreement by a written notice. Termination of this Agreement will be without prejudice to any other rights and remedies that the Non-Breaching Party may have under this Agreement and/or at law and/or in equity
(d) Effect of Termination.
(i) Upon termination of this Agreement, you will immediately (A) cease and desist using Segway IPs, (B) return all Confidential Information, Segway IPs, Referred Customer information and information related to potential customers to Segway (C) discontinue holding yourself out as a marketer and promoter of the Products, and (D) pay Segway all outstanding fees, charges and expenses incurred through the effective date of termination (such as any chargebacks).
(ii) Segway will pay you Commission that you have earned and Segway has not paid from the Effective Date to the date of termination of this Agreement in accordance with the terms and conditions set forth herein.
(iii) The following sections shall survive termination and/or expiration of this Agreement: Section 4(c), 7(b), 9, 10(c), 11, 12, 14 and 15.
14. Governing Law and Arbitration.
(a) This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of California without regards to conflict of law principles.
(b) (i) All disputes, controversies or claims arising out of or relating to this Agreement or any breach hereof which cannot be settled amicably by the parties shall be finally and exclusively settled by arbitration in the English language in Los Angeles, California, U.S.A., under the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. (ii)The arbitral tribunal shall have the right to grant injunctive relief, including interim relief, of any nature. The availability of such relief shall depend upon proofs and showings required under the governing law. (iii) Arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by arbitral tribunal. (iv) Judgment on the award of arbitral tribunal may be entered by any court having jurisdiction to do so, and the parties to the Agreement hereby irrevocably consent and submit to the personal jurisdiction to such court for this purpose as well as for any and all other purposes in connection with this Agreement. (v) The parties agree to keep confidential any conduct, communication and information disclosed to the other party made under 14(b) (Arbitration), including but not limited to the existence of the informal dispute resolution, mediation, the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law.
15. Miscellaneous.
(a) All notices and other communications given or made pursuant to this Agreement must be in writing (including via emails), sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to times.
(b) No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(c) Segway reserves the right to change and/or modify this Agreement and/or any applicable rules and/or policies at any time in its sole discretion, if you continue to provide the Services after Segway’s posting of such change, your continued Services will constitute your acceptance thereof. Segway will provide notice of such change by posting the updated terms and conditions on Segway’s website and changing the “last updated” date listed above. Any changes will be effective immediately upon posting such changes and such changes shall be incorporated herein by reference. If you do not agree with the changes, you shall not provide the referral services described herein after the effective date of the changes.
(d) If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by arbitration tribunal, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.
(e) The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
(f) You may not assign, as a result of a change of control or by operation of law or otherwise, your rights and/or obligations under this Agreement without the prior written consent of Segway.
(g) This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
(h) This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
[End of the Agreement]
Subject to the terms and conditions herein, this Referral Program Agreement (“Agreement”) is made and entered into by and between Segway Inc. with its principal place of business located at 2350 w. Valley Blvd., Alhambra, CA, 91803 (hereinafter “Segway”) and the person or company that agrees to refer potential customers to Segway per the terms and conditions of this Agreement (hereinafter “Referral Partner”, “you” or “your”).
1. Offer and Acceptance, Effective Date.
(a) By submitting the referral partner registration form and clicking on the relevant button on the website page, you offer to provide certain customer referral services as set forth in Section 2 to Segway and per the terms and conditions of this Agreement.
(b) The offer is subject to Segway’s proper acceptance, and the Agreement shall only become effective and binding on the parties upon such acceptance. If your offer is accepted by Segway, Segway would send you a written confirmation clearly and explicitly evidencing its acceptance, and in absence of such written confirmation of acceptance, your offer shall be deemed as not accepted by Segway.
(c) The Agreement is effective on the date that you receive the written confirmation of acceptance from Segway per Section 1(b) (“Effective Date”).
(d) You acknowledge and agree that you have read, understand all of the terms and conditions of this Agreement, and you further agree that upon Segway’s acceptance of your offer, you would provide the Services per such terms and conditions, which also include your duty to comply with any other applicable rules and/or policies related to the Services and sales of Products that Segway may provide and/or communicate to you from time to time. If you do not agree with the terms and conditions set forth herein, you must not make the offer or provide the referral Services described herein.
2. Referral Services.
(a) In exchange for the opportunity to earn Commission as set forth in Section 4 below, you agree to (i) provide the customer referral services to Segway by marketing and promoting Segway's Consumer Electronics Products that include without limitation Ninebot by Segway KickScooter ES1, Ninebot by Segway KickScooter ES2, KickScooter ES4, Ninebot S White, Ninebot S Black, Ninebot Gokart Kit, Segway Drift W1,Loomo and Segway S-PLUS (previously called miniPLUS) (“Products”) to potential customers of such Product, any related and/or ancillary services for the foregoing purpose (collectively “Services”), and (ii) terms and conditions of this Agreement.
(b) Segway hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to market and promote the Products.
3. Registration Process; Referred Customers.
(a) Registration Process and Potential Customer. Segway will provide you an access to an affiliate portal and you must register each potential customer in the affiliate portal by providing, at a minimum, the first and last name of the contact, email address, company name, size and URL and any other information requested by Segway. Segway shall have the right to amend the process described herein upon notice to you and reject any potential customer in its sole and absolute discretion.
(b) Referred Customer. If a potential customer registered by you purchases Products within twelve (12) month period upon the registration, this customer shall be considered as a “Referred Customer”.
4. Commission.
(a) Commission. During the term of this Agreement, you may earn certain commission subject to the following terms and conditions: for the initial twelve (12) month commencing upon Segway’s acceptance of a potential customer that you register, you would receive a commission in an amount equal to two percent (2%) of purchase price (excluding tax, shipping fees and any other third party charges related to the sales and delivery of the Product, if any) that such potential customer pays for any Product (“Commission”). In an event of chargeback (including associated fees), credit and refund is issued by Segway within its sole discretion to a Referred Customer (“Canceled Transaction”), you acknowledge and agree that you shall not earn any Commission from Cancel Transaction. If you receive any Commission from Canceled Transaction regardless of reason, Segway may either directly deduct the same amount from further Commission that you earn or per Sharesale’s request, you shall promptly return it to Segway. Despite of anything to the contrary, you may earn Commission only if (i) you follow the process described herein, (ii) Segway receives full payment (including Product price and any other fees and charges related to the sale of Product, such as tax and shipping fees) from such Referred Customer; and (iii) you are not in breach of this Agreement.
(b) Payment. If in any month store.segway.com receives full payment from a Referred Customer, Sharesale shall pay you Commission earned from such payment in the next calendar month.
(c) Tax. You shall be solely responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any Commission that you earn; any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to Commission are for your account, and you hereby agree to pay such taxes.
5. Product Price. Segway shall have the right, within its sole discretion, to decide on the price, any additional fees, expenses and/or charges, and terms and conditions on the sales of Product to Referred Customers and the public, which may be changed, amended and/or modified by Segway within its sole discretion from time to time without further notice.
6. Independent Contractor and NO Agency Relationship. Segway and you are independent contractors, and nothing contained in this Agreement shall be construed to constitute either party as a partner, franchiser, or employee of the other. Neither party in its dealings with third parties shall hold itself out as a partner, franchisee, agent or employee of the other party. Neither party shall have authority to make any agreements or incur any liability on behalf of the other party, nor shall either party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other.
7. Prohibited Conducts.
(a) Your introduction and/or descriptions of the Products shall be limited to the marketing information provided by Segway, and you shall not make any representations, warranty, guarantee, and/or statement with respect to quality, warranty, functions, features, characters, specifications and any other aspect of Products that are inconsistent, conflicting with and/or contrary to with the terms, marketing materials and/or other literature provided by Segway.
(b) You shall refrain from engaging in any illegal, false, unfair/deceptive business practices, false advertising, or misleading activities with respect to Products, Services, Segway and its affiliates. You shall not violate law.
8. Intellectual Property and Limited License.
(a) You acknowledge Segway and affiliates’ intellectual property rights and ownership in Segway and Ninebot’s trademarks, whether registered or unregistered, including the listed registrations and applications and any registrations, which may be granted pursuant to such applications, (“Trademarks”), Products, and marketing materials and assets (collectively “Segway IPs”). All rights in and to the Segway IPs and the associated goodwill arising from and relating to your use of Segway IPs will inure to the benefit of Segway, and you shall not do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing Segway’s right, title and interest in Segway IPs. Segway has the right to discontinue and/or alter the form, shape and/or artwork and/or content of Segway IPs.
(b) Subject to Segway and is affiliate’s Trademark policy and brand guidance, which may be amended from time to time in their sole discretion, and the terms and conditions of this Agreement, Segway hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable at will license in the U.S.A., during the term of this Agreement, to use certain Segway IPs that Segway actually delivers to you or explicitly permit you to use in writing for the sole purpose of the Services.
(c) Segway may grant you the right to access and use the Products solely for demonstration purpose. You shall not (i) modify, adapt, alter, translate, copy, perform or create derivative works on the Products; (ii) merge or bundle the Products with other products; (iii) sublicense, lease, rent and/or loan the Products; (iv) reverse engineer, decompile, disassemble and/or otherwise attempt to derive the source code of the Products; (v) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the Products; (vi) access and/or use the Products in order to develop a product and/or service which competes with the Products, (vii) otherwise use, copy and/or distribute the Products except as expressly allowed hereunder, and (viii) attach any other trademark, logo and/or trade designation to the Products unless expressly agreed in writing by Segway. Segway reserves the right at any time to review your use of Segway IPs to determine if such use is in compliance with this Agreement. In the event Segway desires to include your information on its referral partner website at any time during the term of this Agreement, you hereby grant to Segway a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by you on such referral partner website.
(d) Despite of anything to the contrary, the rights and/or licenses granted to you under Section 8 shall be automatically revoked and terminated upon termination and/or expiration of this Agreement.
9. Confidential Information and Privacy.
(a) Confidential Information. All non-public, confidential or proprietary information of Segway, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Segway to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Segway in writing (“Confidential Information”). Upon Segway’s request, you shall promptly return all documents and other materials received from Segway. Segway shall be entitled to injunctive relief for any violation of Section 9. Confidential Information shall not include the information that is: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure directly or indirectly by you); (ii) was available to you on a nonconfidential basis from a source other than Segway or its affiliates, provided that such source is not and was not bound by a confidentiality agreement regarding the confidential information; or (iii) has been independently acquired or developed by you without violating any of your obligations under this Agreement.
(b) Privacy. You acknowledge and agree that you shall comply with all applicable privacy laws and have read and agree to Segway’s privacy policy and may be changed from time to time in Segway’s sole and absolute discretion.
10. Representations, Warranties and Covenant.
(a) You. You represent and warrant that you (i) possess full power and authority to enter into this Agreement, (ii) have the proper skill, training and background to perform the Services in a competent and professional manner. You (i) will use due diligence in safeguarding the interests of Segway in accordance with this Agreement and any policies and procedures provided to you by Segway; and (ii) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency.
(b) Segway. Segway warrants that Segway possesses full power and authority to enter into this Agreement and has the ability to grant the rights described herein.
(c) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
11. Indemnification. You agree to defend, hold harmless and indemnify Segway, its directors, employees, officers, affiliates, successors, and agents (“Indemnified Party”) from and against any and all actual or threatened disputes, claims, actions, suits, proceedings (whether in court, arbitration or a matter before a governmental authority having jurisdiction over the subject matter) (each a “Claim”), costs, liability, damages and expenses (including, reasonable attorney’s fees, costs and expenses), which arise out of or are related to any third party claims caused by your breach of this agreement. The Indemnified Party will promptly notify you of any Claim for which indemnification is sought. Failure to provide such notification will not relieve you of your indemnification obligations, except to the extent that you can prove actual prejudice attributable to such failure. Indemnified Party shall have the right to control over the defense of the Claim and any negotiation for its settlement or compromise. You shall not without the prior written approval of Indemnified Party, made any admissions or offers of settlement concerning the Claim. You shall cooperate with Indemnified Party at your cost, in the investigation and defense of any Claim covered by this indemnity. Indemnified Party shall be entitled to separate legal counsel in the event of a conflict of interest in the defense of the parties, and the fees and costs of such separate counsel shall be paid by you.
12. Limitation of Liability.
(a) (i) SEGWAY-NINEBOT PARTY’S (INCLUDING SEGWAY INC, NINEBOT, AND THEIR AFFILIATES, DIRECTORS, MANAGERS, EMPLOYEES, OFFICERS, SUCCESSORS, AGENTS, AND INDEPENDENT CONTRACTORS AND OTHER SERVICE PROVIDERS) LIABILITY TO YOU, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER THEORY, SHALL NOT EXCEED THE TOTAL AMOUNT OF COMMISSION THAT YOU ACTUALLY RECEIVE UNDER THIS AGREEMENT WITHIN SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CLAIM. (ii) IN NO EVENT SHALL EITHER SEGWAY-NINEBOT PARTY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, INDEMNIFICATION LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (iii) THE FOREGOING LIMITATIONS OF LIABILITY APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(b) You acknowledge and agree that Segway-Ninebot Party is not liable for the performance of any third-party products and/or services used in relation to this Agreement.
13. Term and Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the terms and conditions of this Agreement.
(b) Termination for Convenience. Either party may terminate this Agreement for convenience upon thirty (30) day prior written notice to the other party.
(c) Termination for Cause. (i) If a party materially breaches this Agreement (“Defaulting Party”), and the Defaulting Party fails to cure such breach within five (5) days after its receipt of written notice of such breach from the other party (“Non-Breaching Party”), or (ii) within the sole discretion of the Non-Breaching Party, breach of agreement is incurable, the Non-Breaching Party may terminate immediately terminate this Agreement by a written notice. Termination of this Agreement will be without prejudice to any other rights and remedies that the Non-Breaching Party may have under this Agreement and/or at law and/or in equity
(d) Effect of Termination.
(i) Upon termination of this Agreement, you will immediately (A) cease and desist using Segway IPs, (B) return all Confidential Information, Segway IPs, Referred Customer information and information related to potential customers to Segway (C) discontinue holding yourself out as a marketer and promoter of the Products, and (D) pay Segway all outstanding fees, charges and expenses incurred through the effective date of termination (such as any chargebacks).
(ii) Segway will pay you Commission that you have earned and Segway has not paid from the Effective Date to the date of termination of this Agreement in accordance with the terms and conditions set forth herein.
(iii) The following sections shall survive termination and/or expiration of this Agreement: Section 4(c), 7(b), 9, 10(c), 11, 12, 14 and 15.
14. Governing Law and Arbitration.
(a) This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of California without regards to conflict of law principles.
(b) (i) All disputes, controversies or claims arising out of or relating to this Agreement or any breach hereof which cannot be settled amicably by the parties shall be finally and exclusively settled by arbitration in the English language in Los Angeles, California, U.S.A., under the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. (ii)The arbitral tribunal shall have the right to grant injunctive relief, including interim relief, of any nature. The availability of such relief shall depend upon proofs and showings required under the governing law. (iii) Arbitral tribunal shall have the sole power to rule on any challenge to its own jurisdiction and all issues regarding arbitrability shall be decided solely by arbitral tribunal. (iv) Judgment on the award of arbitral tribunal may be entered by any court having jurisdiction to do so, and the parties to the Agreement hereby irrevocably consent and submit to the personal jurisdiction to such court for this purpose as well as for any and all other purposes in connection with this Agreement. (v) The parties agree to keep confidential any conduct, communication and information disclosed to the other party made under 14(b) (Arbitration), including but not limited to the existence of the informal dispute resolution, mediation, the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards to the extent not already in the public domain, except in judicial proceedings related to the award or where required by applicable law.
15. Miscellaneous.
(a) All notices and other communications given or made pursuant to this Agreement must be in writing (including via emails), sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to times.
(b) No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(c) Segway reserves the right to change and/or modify this Agreement and/or any applicable rules and/or policies at any time in its sole discretion, if you continue to provide the Services after Segway’s posting of such change, your continued Services will constitute your acceptance thereof. Segway will provide notice of such change by posting the updated terms and conditions on Segway’s website and changing the “last updated” date listed above. Any changes will be effective immediately upon posting such changes and such changes shall be incorporated herein by reference. If you do not agree with the changes, you shall not provide the referral services described herein after the effective date of the changes.
(d) If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by arbitration tribunal, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.
(e) The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
(f) You may not assign, as a result of a change of control or by operation of law or otherwise, your rights and/or obligations under this Agreement without the prior written consent of Segway.
(g) This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
(h) This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
[End of the Agreement]