AFFILIATE AGREEMENT

for DA VINCI BY MINDFIRE

AFFILIATE AGREEMENT for DA VINCI BY MINDFIRE

As an Affiliate for Da Vinci by MindFire, You have the opportunity to earn money from commissions for Da Vinci accounts that You sell to other users. This Agreement sets forth Your rights and obligations as an Affiliate for Da Vinci by MindFire. By electronically signing, or clicking through this agreement, You indicate that You have read and understood this Agreement and You will be bound by its terms.

1. PARTIES. All references to “Da Vinci” and “Da Vinci by MindFire” herein mean and refer to MindFire Internet Solutions Inc, doing business as MindFire Inc. All references to “You” and “Your” mean and refer to that Da Vinci Affiliate who has executed this Agreement by electronically signing or clicking through it. Da Vinci and You are each referred to herein as a “Party,” and collectively as the “Parties.”

2. INDEPENDENT CONTRACTOR. You are an independent contractor of Da Vinci. It is the express understanding and intention of the Parties that no relationship of master and servant or principal and agent shall exist between Da Vinci and You by virtue of this Affiliate Agreement.

3. TERM AND TERMINATION. Your contract with Da Vinci begins when You sign this contract electronically, or click through it, and will continue month-to-month until either of the Parties cancel the contract with a written 30-day notice.

4. COMPENSATION.

a. COMMISSIONS. After Your contract with Da Vinci begins as described in 3 above, You will receive a unique Affiliate URL from Da Vinci, which You will use to advertise and sell Da Vinci. When another person (a “Prospect”) creates a Da Vinci account by using Your Affiliate Link, and pays for Da Vinci using his or her credit card, it will register a “Sale” of Da Vinci for you and each such account will be a “Sold Account.” You will be paid a commission when a payment is received by Da Vinci for each Sold Account. The Commission amount is 30% of all fees received by Da Vinci for a Sold Account. Commission payments will be made to You between 30 and 60 days following Da Vinci’s receipt of payment for a Sold Account, subject to the other terms set forth herein.

b.  TAXES. Before You can be paid any Commission or Bonuses, You must provide Da Vinci a completed W-8 or W-9, as instructed. You will be deemed to have permanently waived all rights to Commissions or Bonuses that were earned more than 120 days before submitting a completed W-8 or W-9 to Da Vinci. You are responsible for any and all tax liabilities, including without limitation income tax liabilities that arise from or in any way relate to any commissions or bonuses You receive from Da Vinci. If You are not a resident of the United States, Da Vinci may withhold tax (including without limitation VAT) where required to by applicable law. Where Da Vinci is required to withhold tax, Da Vinci will document such withholding.

c. MINIMUM COMMISSION PAYMENT. Your combined commission and bonus amount must equal or exceed One Hundred and 00/100 Dollars ($100.00) before You receive a payment from Da Vinci. If Your combined commissions and bonuses for a given month are less than $100.00, Your commissions and bonuses will be held until Your combined commissions and bonuses equals or exceeds $100.00.

d. COMMISSION PAID FOLLOWING LEGITIMATE SALE. Commissions and Bonuses are paid only for transactions that actually occur between Da Vinci and a Sale. If the transaction does not actually occur, or if payment from a Sale is not actually received by Da Vinci, You will not be paid a Commission for the transaction. If payment for a Sold Account later results in a refund or charge-back, and if a commission was paid to You for that Sold Account payment, then the commission will be deducted from Your future commissions.

e. FRAUDULENT TRANSACTION. If Da Vinci determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, no Commission will be paid for such Sale. If any Commissions are paid for a Sale that was produced fraudulently or as a result of any violation of this Agreement, and the fraud or violation is discovered by Da Vinci after payment, such payment amounts shall be deducted from Your future commissions.
U.S. DOLLARS.

f. PAYMENT PROCESSING FEES. All commissions are paid in US Dollars. Depending on what payment processor or payment method You instruct Us to use, processing fees may be deducted from Your Commissions payment.

5. MARKETING AND RECRUITING.

a. TRUTHFUL. Anything You communicate while marketing or advertising any Da Vinci service or opportunity must be true and accurate. Claims that relate to any Da Vinci service or opportunity that are untrue or fraudulent are strictly prohibited.

b. DISCLAIMER. On any website that You advertise any Da Vinci service or opportunity, You must plainly display (i.e., not in a link) the following disclaimer language:

Disclosure: I am an independent Da Vinci Affiliate, not an employee. I receive referral payments from Da Vinci. The opinions expressed here are my own and are not official statements of Da Vinci or its parent company, MindFire, Inc.

c. NON-DISPARAGEMENT. You are not permitted to disparage the products or services of any other person or entity, including without limitation the products or services of a competitor of Da Vinci.

d. INVENTORY LOADING/REBATES. You will not be paid any Commission for payments made on your own User Account(s). You are not permitted to open a Da Vinci account under the name of another person or entity, or under a fictitious name. You are not permitted to open a Da Vinci account under any name merely for the purpose of obtaining Commissions, or any other form of compensation that may be offered by Da Vinci from time to time. Violation of this paragraph shall constitute a material breach of this Agreement, and You agree to repay to Da Vinci all Commissions earned as a result of any such violation.

e. INCOME CLAIMS. If Your recruiting efforts include claims related to the potential income a Da Vinci Affiliate can make, or if You make reference to income You have made, or if You make reference to any lifestyle opportunities You have because of Da Vinci, the following guidelines must be adhered to:
– Your statements must be completely true and accurate and supported by evidence;
– If You use a hypothetical scenario, You must clearly label it as a hypothetical scenario

6. Da Vinci’s INTELLECTUAL PROPERTY. No logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information (collectively, the “Da Vinci Intellectual Property”) owned by Da Vinci may be used, copied, reproduced or reverse engineered by You except as set forth below. No Da Vinci Intellectual Property (or any mark confusingly similar to any Da Vinci Intellectual Property) is to be advertised for sale or registered as a domain name by You in any fashion.

You may use the Da Vinci name and logo as well as MindFire name and logo to advertise Da Vinci. Any time You use any one or more of the above-mentioned assets, You must do so in a way that is not likely to confuse readers or cause them to think that You are speaking for Da Vinci. Whether Your use of the assets is confusing will be determined by Da Vinci in their sole and absolute discretion. The following guidelines, which may be changed or added to at any time, are designed to help avoid reader confusion:

– On any website or social media platform on which You use the above-mentioned assets, you must include the disclosure identified in paragraph 5(B) and 5(C) above.

– You may use only such other images, photographs, and trademarks as Da Vinci expressly authorizes in writing.

You may also add your own assets and templates designed to address the needs of your prospective customers to the web site, resident at your Da Vinci Affiliate URL. However, you MUST make it explicitly clear that those are your value-added offerings on top of the core Da Vinci product, are solely published by you and Da Vinci and their employees and assigns bear no responsibility towards those.

7. RELEASE/AUTHORIZATION TO USE PHOTOGRAPHS. You grant Da Vinci permission to use any and all photographs taken by Da Vinci or its agents or employees, or submitted by You to Da Vinci (hereinafter “Photographs”) in any Media (including print, internet, film, television and no matter how distributed or published) for any purpose, which may include, but shall not be limited to, advertising, promotion, marketing and packaging of Da Vinci or any product or service sold and marketed by Da Vinci. You agree that this authorization to use Photographs may be assigned by Da Vinci to any other party. You agree that that the Photographs may be combined with other Photographs, sounds, text and graphics, and that the Photographs may be manipulated, cropped, altered or modified in Da Vinci’ sole discretion. You agree not to charge a royalty or fee, and not to make any other monetary assessment against Da Vinci in exchange for this Release and Assignment. You hereby release and forever discharge Da Vinci from any and all liability and from any damages You may suffer as a result of the use of the Photographs. You further acknowledge and agree that this Release is binding upon Your heirs and assigns. You agree that this Release is irrevocable.

8. PROHIBITED ACTIVITY. Da Vinci has the right to terminate this Agreement at any time if You engage or have ever engaged in any of the following:

a. HARMFUL ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to Da Vinci’s reputation; and the violation of the rights of Da Vinci or any third party.

b. “SPAMMING” AND UNSOLICITED COMMUNICATIONS. Any communications sent or authorized by You reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third-party blogs) will be deemed a material threat to Da Vinci’s reputation and to the rights of third parties. It is Your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.

c. OFFENSIVE COMMUNICATIONS. Any communication of the prohibited nature described in Section 5 of the Acceptable Use Policy of MindFire.

9. INDEMNITY. You agree to protect, defend, indemnify and hold harmless Da Vinci, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limit arising out of the Your conduct. Your indemnity obligation includes, but is not limited to, any third party claim against Da Vinci for liability for payments for, damages caused by, or other liability relating to, You.

10. NO WARRANTY. Da Vinci does not promise, guarantee or warrant Your business success, income, or sales. Additionally, DA VINCI WEBSITES AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DA VINCI MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH ANY DA VINCI WEBSITE OR SERVICE. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. DA VINCI MAKES NO REPRESENTATION OR WARRANTY (A) THAT ANY DA VINCI WEBSITE OR SERVICE WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS TO ANY DA VINCI WEBSITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT ANY DA VINCI WEBSITE OR THE SERVERS OR NETWORKS THROUGH WHICH ANY DA VINCI WEBSITE IS MADE AVAILABLE ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ABOVE EXCLUSION DO NOT APPLY WHEREVER THE  APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.

11. ON BOARDING & SUPPORT. Da Vinci will support you and your customers on any product related questions or production issues during the hours of Monday through Friday 6AM PST to 5PM PST, barring major US holidays. Please email support@mindfireinc.com to contact support, with a detailed description of your question/issue, account name, campaign name and your contact information. You will be able to send your customers to Da Vinci’s instructor-led on boarding sessions, held live a few times every quarter and broadcast via Zoom, to assist with building knowledge on the product and how to get started.

12. LIMITATION OF LIABILITY. YOU AGREE THAT IN NO EVENT SHALL DA VINCI’S LIABILITY TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION EXCEED THE AMOUNT OF THE COMMISSIONS AND BONUS PAYMENTS PAID TO YOU FOR THREE PRECEDING MONTHS PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST DA VINCI OCCURRED. YOU WAIVE ANY RIGHT TO SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DESCRIPTION.

13. FORCE MAJEURE. Da Vinci will not be responsible to You for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of Da Vinci. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Da Vinci shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.

14. ASSIGNMENT. Da Vinci may assign its rights under this Agreement at any time, without notice to You. Your rights arising under this Agreement cannot be assigned by you or your representative without Da Vinci’s or its assigns’ express written consent.

15. ARBITRATION, GOVERNING LAW, AND ATTORNEYS’ FEES.

a. ARBITRATION. Any claim or grievance of any kind, nature or description that You have against Da Vinci including, but not limited to, economic losses, personal injury, or property damage, shall be resolved exclusively in binding arbitration in Orange County, California. You agree not to file suit against Da Vinci or any of its affiliates, subsidiaries, officers, directors, employees, successors, or assigns. The arbitration will take place before a neutral arbitrator (hereafter, “Arbitrator”) agreed upon by You and Da Vinci. In the event that You and Da Vinci are unable to reach agreement on an Arbitrator, You and Da Vinci will each select an arbitrator, and the two of them will select the Arbitrator, who must be a resident of Orange County, California. The arbitrators selected by You and Da Vinci will have no further involvement in the arbitration. The Arbitrator will determine the rules governing arbitration. The decision of the Arbitrator will be final and binding on You and Da Vinci and may be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitrate survives any termination or expiration of the Agreement.

b. GOVERNING LAW. This Agreement shall be governed, construed, and interpreted in accordance with the laws of the State of California without regard to any choice of law provisions.

c. WAIVER OF CLASS ACTION CLAIMS. You understand and agree that You will not have the right to participate in a representative capacity or as a member of any class of claimants pertaining to any claims that may arise under, or be in any way related to, this Agreement. There is no right or authority for any claim You have against Da Vinci to be brought on a class action basis or on any basis involving claims brought in a purported representative capacity on behalf of the general public, or on behalf of other persons or entities similarly situated. Claims brought against Da Vinci may not be joined or consolidated with claims brought by anyone else.

d. LIMITATIONS PERIOD. Any claim brought in arbitration must be brought within the time period set forth in any statute of limitations that, but for this agreement to arbitrate, would apply to the claims asserted in any arbitration proceeding.

e. INJUNCTIVE RELIEF. Nothing in this Agreement prevents Da Vinci from applying to and obtaining from any court having jurisdiction a temporary injunction, preliminary injunction, permanent injunction, or other relief available to protect Da Vinci’s rights prior to, during, or following any arbitration proceeding.

f. ATTORNEYS’ FEES. You agree that in the event of any arbitration or litigation, each Party will each bear its own costs and attorneys’ fees, regardless of who is deemed the prevailing party. The foregoing notwithstanding, if either Your or Da Vinci commences an action in a court of law or equity and the responding Party successfully moves such court to compel arbitration, the Party who moved for the order compelling arbitration shall be entitled to recover its reasonable costs and attorneys’ fees incurred on the motion to compel from the other Party.

16. ENTIRE AGREEMENT. This Agreement, along with Da Vinci’s standard Terms and Conditions represents the entire agreement between the Parties and supersede any other written or oral agreement between the Parties as pertaining to Your rights and responsibilities as a Da Vinci Affiliate.

17. MODIFICATION/AMENDMENTS. This Agreement and Da Vinci’s standard Terms and Conditions may be modified by Da Vinci at any time, with or without prior notice to You. Amendments or Modifications to this Agreement or the Terms and Conditions will be binding on You when they are sent to You via e-mail.  No amendment to this Agreement or the Terms and Conditions shall be valid unless authored or signed by Da Vinci. Your continued acceptance of Commission constitutes Your acceptance to any modifications or amendments to this Agreement.

18. NO WAIVER. No waiver by Da Vinci of any right reserved or granted to Da Vinci under this Agreement shall be effective unless the waiver is in writing and signed by an authorized representative of Da Vinci.

19. NOTICE. Any notice required to be given to Da Vinci under or related to this Agreement shall be in writing, addressed as follows:

MindFire, Inc
2601 Main Street, Suite 830
Irvine CA 92604
e-mail: abaker@mindfireinc.com

Da Vinci will send notices to You at the e-mail address You provided to Da Vinci. Any notices shall be deemed delivered to You when sent by Da Vinci. You are solely responsible for addressing any technical failures related to Your e-mail address or server, and for reading any e-mail sent to You.

20. SEVERANCE. In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement and the Terms and Conditions, as so modified, shall continue in full force and effect.

Last updated 3/10/19.