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Effective 05/02/2018 12:00am EDT
This RunSignUp Partner Agreement (the “Agreement”) is entered into between RunSignUp, Inc. a Delaware corporation doing business as RunSignUp, BikeSignUp, TriSignUp, SkiSignUp, PaddleSignUp, AdventureSignUp, and SwimSignUp (collectively, “RunSignUp”, "we" or "us") at 300 Mill Street, Suite 200, Moorestown, NJ 08057, and the organization, individual, or entity which is described in Section 1 below (collectively, the “Partner”, "you" or "your"). The effective date of this Agreement is the latest date set forth in the signature lines below (the “Effective Date”). RunSignUp agrees to provide you with certain services and payments in exchange for your compliance with specified commitments and obligations, all subject to the following terms and conditions:
Overview and Scope. Our online race management platform (the “RunSignUp Service”) enables the provision of various technology-based services for various organizations and individuals who manage running, and other endurance, events and activities. Under a separate RunSignUp Race Contract (the “Race Contract”), we make available the RunSignUp Service to Race Owners (who are defined in the Race Contract) to help facilitate registration and other tasks in support of their athletic event or running club (the “Race”, as defined below for purposes of this Agreement). This Agreement describes a program under which we offer the ability to earn certain fees to pre-approved organizations, individuals or entities (referred to as “Partners”) who own or manage (collectively, “Manage”) multiple Races, or a large individual Race, with at least five thousand (5,000) participants per year or Two Hundred Thousand Dollars ($200,000) in annual paid registrations. Examples of potential Partners are timers, event organizers or Race Owners. Accordingly, as used in this Agreement, a “Race” refers to one or more Races that you Manage pursuant to the terms and conditions hereof. In order for you to enter into this Agreement, you must have previously submitted an application via our website and been approved as a Partner by us. If you have not been pre-approved to serve as our Partner, this Agreement shall have no force or effect.
Partner Services. We may offer to provide you with certain Partner services and benefits (the "Partner Services") in connection with your Races through our website located at https://www.runsignup.com (the "Website"). Partner Services would generally include rights of use in Partner-focused features of the RunSignUp Service. Such features include a “Partner Dashboard” within the RunSignUp Service which enables or facilitates cross-race management, multi-level access and control of races, enhanced payment reporting and other Partner-focused features and functionality. Partner Services may also include access to a public RunSignUp Partner website which you can use in furtherance of your performance of this Agreement. The Partner Services which we offer to you, or choose to discontinue, at any given time shall be determined in our sole discretion. Please review our website on a regular basis to see the then-current list of available Partner Services.
Certain Partner Obligations. Prior to execution of this Agreement, you shall have provided us with a written list of Races that you manage and a good faith estimate of the anticipated annual registrations for each Race. Our approval of you to participate as a Partner is based on this information. Throughout the term of this Agreement, you shall: (a) use and actively promote our RunSignUp Service (including its web-based registration and other features) to Races and prospective new Races; and (b) provide “First Level Support” for all Races. “First Level Support” means serving as the single point of contact to receive, handle and respond to, all initial calls and inquiries (including, for example, questions on Race set up using the RunSignUp Service, pricing and features of the RunSignUp Service and other support issues) from Race administrators, Race directors, Race Owners and other Race-related individuals or organizations and (c) not recommend Races to RunSignUp that have high levels of participant complaints, chargebacks or other financial issues.
Partner Revenue Share. Except as otherwise provided in this Agreement, you will earn a fee (a “Partner Revenue Share”) to be calculated as a specified percentage (set forth in the table below) of our applicable standard processing fees which are set forth on our Website (our “Standard Processing Fee”) for each participant who registers for the Race using the RunSignUp Service. Notwithstanding the above, if the participant does not come directly to the RunSignUp Service via your RunSignUp Partner website or our Website to register for the Race, but, instead, the participant is directed to RunSignUp from an “Affiliate” (i.e., a trade organization, or other entity or organization, which forwards web traffic to the Website or the RunSignUp Service; e.g., RunningintheUSA.com), then the Partner’s revenue share will be reduced by five percent (5%) for those registrations. By way of example, this 5% reduction would mean that the “Partner Revenue Share Percentage” in the table below would be reduced, as applicable, from 20% to 15% or from 25% to 20%, etc. Additionally, if the Owner(s) of the Race or Races that you manage agrees to pay “Timer Fees” (defined below), the Timer Fees will not be included in the calculation of Partner Revenue Share. “Timer Fees” refers to a separate revenue sharing program for timers that involves fees which are separate and above the RunSignUp Standard Processing Fee, but will be included in the processing fees that a participant pays at the check- out for their race. For clarity, Partner Revenue Share would only be calculated based on the applicable percentage (set forth in the table below) of our Standard Processing Fee. Partner Revenue Share, which is properly due to you under this Agreement will be paid by us weekly in arrears if the amount owed is $200 or more, or otherwise payments will be monthly in arrears (in either case, as soon as reasonably practicable following the end of the week or month in question). Partner Revenue Share may be reduced or eliminated at any time, in our sole discretion, if you do not achieve the minimum annual volume thresholds set forth below or we determine that you are substantially short of the annual volume thresholds and are unlikely to meet those thresholds over the course of the applicable annual period. Partner Revenue Share is earned at the volumes as defined in the table below:
|Minimum Paid Registrations/Year*||Annual Paid Registration Volume in Dollars**||Partner Revenue Share Percentage***|
* Refers to registrations of Race participants utilizing the RunSignUp Service.
** Refers to the total registration fees (not including our Standard Processing Fee or any Timer Revenue Share) paid by Race participants utilizing the RunSignUp Service.
*** RunSignUp reserves the right to withhold Partner Revenue Share (which shall be deemed “Forfeited”) on any Races that otherwise qualify for Partner Revenue Share but are subsequently cancelled if RunSignUp does not receive proceeds to refund participants or for chargebacks that are processed against any registrations for your Races. In the event that Partner Revenue Share is Forfeited, RunSignUp has the right to deduct the unearned amount from Partner Revenue Share amounts that are owed for other Races.
Notwithstanding anything to the contrary in this Section 4 above, in the event that you are not an Owner of the Race and the Owner makes a request of us to remove you as the Partner of the Race or to receive the Partner Revenue Share for such Race and meets the minimum annual volume requirements, then we will remove you as the Partner of the Race and if appropriate pay the Owner the Partner Revenue Share and we will not pay you any Partner Revenue Share or other fee for such Race. You agree that you waive any claim you would otherwise have for a Partner Revenue Share in the event that the Owner requests to remove you as a Partner for a Race.
If you are also the Owner of the Race, then the terms and conditions of both this Agreement and the Race Contract shall separately apply and govern our relationship.
Pricing. You will have the ability to set processing fees on a per Race basis. Each online registrant for the Race will be required to pay the registration fee charged by the Race Owner, plus a processing fee. As a Partner, with the approval of the Race Owner (which you shall be responsible to separately obtain), you will have the ability to set the processing fee for a Race, provided that, in all cases, we shall retain our Standard Processing Fee less any Partner Revenue Share that is due to you hereunder. In the event that you elect to charge a processing fee which is less than our Standard Processing Fee, then we reserve the right to reduce or eliminate your Partner Revenue Share to enable us to collect in full our Standard Processing Fee as described in Sections 5(b) and 5(c) below. We will be responsible for collecting all registration fees and processing fees. Proceeds from registration fees collected from online registrants will be paid to the Race Owner based on the instructions provided to us by such Owner, subject to the terms and condition of the Race Contract. Partner Revenue Share and any excess processing fees will be sent to you. As further explanation, examples of Partner Revenue Share calculations (based on our Standard Processing Fee as of the Effective Date and an assumption that the applicable Partner Revenue Share percentage would be 20%) with non-standard processing fees are described below:
a. If you set a processing fee for a Race which is above our Standard Processing Fee, then you will earn the excess as additional Partner Revenue Share. For example, on a Race with a $25 registration fee (a “$25 Race”), if you set a processing fee of $3.10 (which is $.60 higher than our current Standard Processing Fee of $2.50 for a $25 Race), then you would earn a Partner Revenue Share equal to: (i) $0.50 (the product of $2.50 multiplied by 20%) + your $.60 uplift over our Standard Processing Fee (i.e., $3.10 - $2.50). In this example, then, subject to the terms and conditions of this Agreement, your total Partner Revenue Share would be $1.10. For Races that have registration fees greater than $20 and have set a processing fee of 20% or more, then the Partner Revenue Share earned will be 5% less than it would be otherwise (for example, you would be entitled to 15% of our Standard Processing Fee as opposed to 20%).
b. If you set a processing fee for a Race to be less than our Standard Processing Fee, then, except as described in Section 5(c) below, you will earn only the difference between: (i) the Partner Revenue Share which would have otherwise been due; and (ii) the amount by which your processing fee is less than our Standard Processing Fee. For example, on a $25 Race, if you set a processing fee of $2.40, then you will earn a partner revenue share equal to the difference between $0.50 (which would have been the Partner Revenue Share, i.e., the product of $2.50 multiplied by 20%) and – (iv) $0.10 (which is the amount by which the processing fee you set at $2.40 is less than our Standard Processing Fee of $2.50). In this example, then, subject to the terms and conditions hereof, the Partner Revenue Share would be $0.40.
c. If you set the processing fee for a Race to be less than the difference between: (i) our Standard Processing Fee; and (ii) the Partner Revenue Share to which you would otherwise have been entitled, then, to the extent we are able to do so, we will deduct this difference from the Race fee. For example, on a $25 Race, if you set up a processing fee of $0, then, we will collect our $2.50 Standard Processing Fee from the $25 Race fee, and then pay you a Partner Revenue Share of $0.50 (which is calculated by multiplying 2.50 by 20%). If we are unable to collect our Standard Processing Fee in full from the Race fee, then we reserve the right to reduce or eliminate your Partner Revenue Share in our sole discretion.
d. In all of the examples above, when Timer Fees have been approved on a Race for which you are entitled to a Partner Revenue Share, such Timer Fees will not be included in the Standard Processing Fees on which the Partner Revenue Share is calculated.
License to Intellectual Property/Promotion.
a. RunSignUp shall retain all right, title and interest worldwide in and to the RunSignUp Service, the Partner Services (including, without limitation, the Partner Dashboard and Partner Website), documentation, promotional and product/service materials, trademarks, service marks, logo, trade names and other intellectual property and all derivatives thereof (collectively, "Intellectual Property"). To the extent we make available to you any of our Intellectual Property hereunder, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Intellectual Property solely during the Term hereof and solely as necessary for you to meet your obligations, and otherwise perform, pursuant to this Agreement. By way of example, and not limitation: (i) your use of the Intellectual Property shall be solely for the purpose of promoting and facilitating registrations for your Races via the RunSignUp Service and, with respect to the Partner Services, monitoring Race-related information and otherwise utilizing the Partner Dashboard and other Partner-focused features of the RunSignUp Service; (ii) any and all fees processed for a Race will be processed by us under the Race Contract with the Race Owner and not on your behalf or under this Agreement; and (iii) we have no obligation to pay, or remit to you, any fees other than the Partner Revenue Share (if any) which you are entitled to under this Agreement. Any other use of our Intellectual Property (including use of any part or component of the RunSignUp Service other than those Partner-focused features which we make available to you hereunder) by Partner would be covered by the terms of the Race Contract between RunSignUp and the Race Owner and, in this regard, if you are not the Race Owner, any use thereunder would be as an Authorized User subject to: (i) the authorization of the Race Owner; and (ii) the applicable terms and conditions thereof (including that Partner shall be bound to the confidentiality, limited use, intellectual property and other applicable terms and conditions of such Race Contract). Any rights not expressly granted hereunder are reserved by RunSignUp.
c. You hereby grant to RunSignUp, and represent and warrant that you have the necessary rights to do so from any impacted third party, a royalty-free, perpetual, irrevocable, transferable license to use, display, reproduce, distribute, modify and transmit in digital or printed form data, information and/or content provided by you relating to your organization, including your organization's name, trademarks, service marks and logo, in connection with the implementation and operation of the RunSignUp Partner Services.
LIMITATION OF LIABILITY. IN NO EVENT SHALL RUNSIGNUP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL THE LIABILITY OF RUNSIGNUP UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PARTNER REVENUE SHARE PROPERLY OWED TO YOU UNDER THIS AGREEMENT, PLUS THE PARTNER REVENUE SHARE PAID TO YOU BY US HEREUNDER FOR THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY YOU AGAINST US. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION (INCLUDING NEGLIGENCE) AND SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
Term and Termination. The initial term of this Agreement shall be for one (1) year from the Effective Date. The agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”) in each instance unless either party provides written notice to the other party that it is electing to terminate this Agreement at least thirty (30) days prior to the end of the then-current term. The initial term, and all Renewal Terms, shall be referred to as the “Term” hereof. In the event of any early termination of this Agreement, the Term shall be deemed reduced accordingly.
In addition to the above, either party may terminate this Agreement upon written notice if the other party is in material breach and fails, within thirty (30) days of receipt of written notice of the breach, to correct the breach. In addition, RunSignUp may immediately deactivate, suspend or terminate your use of any or all Intellectual Property, and/or terminate this Agreement, upon written notice if: (i) you misuse the Intellectual Property in violation of the terms hereof; or (ii) you have fallen substantially short of the volume commitments described in Section 4 or we determine that you are unlikely or unable to be able to meet those commitments over the course of the then-current annual term. Upon termination, all rights (including rights to access and use the Intellectual Property) and obligations shall automatically terminate and you shall promptly return all proprietary information and materials of ours to us. You agree that, following termination or expiration hereof, we may maintain your data and content in accordance with our then-current backup, retention and data retention policies and for the ongoing purposes authorized herein. Upon request within one (1) year after termination, we will make available to you (via electronic download or such other method pursuant to our then-standard practices) your content and data which remains in our possession. After such one-year period, we may, without obligation to do so, delete any or all of your data and/or content without liability. This Agreement does not prevent you from using registration services from another provider.
Representations and Warranties. Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this agreement and to perform its obligations hereunder. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE PARTNER SERVICES AND INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE YOU ARE SOLELY RESPONSIBLE FOR ALL ASPECTS OF THE RACE WHICH YOU MANAGE, INCLUDING WITH RESPECT TO ALL DATA AND CONTENT WHICH YOU POST OR SHARE.
Indemnification. We will defend, indemnify and hold you harmless from and against any damages, losses, and costs that directly arise out of a claim brought by a third party which alleges that the Intellectual Property (in the form which we make them available to you) infringes a third party’s copyright, patent, trademark, trade secret or other intellectual property right enforceable in the United States. As a condition of our indemnity obligation, you must promptly notify us of any such claim; grant us sole control of the defense and settlement of any such claim; and cooperate with us to facilitate our ability to settle or defend the claim. In the event of a covered infringement claim, we may (in our discretion) elect to obtain for you the right to continue using the Intellectual Property, or to replace or modify the Intellectual Property so that they are not infringing and materially similar. Alternatively, we may notify you and terminate your right of use in the Intellectual Property and, at our election, may also terminate this Agreement on written notice. We shall have no indemnity obligations to you if the infringement claim is caused by your misuse of the Intellectual Property, or your use of the Intellectual Property in combination with unauthorized products or services. THESE ARE OUR EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT.
You shall indemnify, defend and hold harmless RunSignUp and its directors, officers, employees, affiliates, contractors and agents (collectively, the “RunSignUp Indemnitees”), against any damages, losses and costs that directly arise out of a claim brought by a third party: (i) which alleges that your data, content or other information or materials infringes a third party’s copyright, trademark, trade secret, patent or other intellectual property right enforceable in the United States; (ii) seeking damages for the unauthorized disclosure or use of any data (including personally identifiable data) or content where the claim and/or damages are caused or arise from your actions or omissions or breach hereof; (iii) which arises out of or is caused by a misuse of the Intellectual Property by you in violation of the usage or licensing restrictions and/or prohibitions set forth in this Agreement; (iv) which is based on injury, harm or other damage to, or a dispute over payments made or refunds requested by, a participant, volunteer, sponsoring organization, entity or support resource involved in any Race or (as applicable) any of your club’s running activities; (v) which arises from your breach of a covenant, obligation, representation or warranty provided hereunder and (vi) which is brought by an Owner, timer, event organizer, race director or other organization (other than the Partner which is entering into this Agreement) and is based on or arises out of the Services, the use of the Site or other matters related to your Race or club.
Confidentiality. “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. For purposes of this Agreement, Confidential Information of RunSignUp includes the RunSignUp Service, the Partner Services and all related documentation and materials, along with all Race Data and the terms and conditions of this Agreement. The party receiving Confidential Information may use it only for the purposes for which it was provided and, unless disclosure to third parties is otherwise prohibited or restricted under applicable data security or privacy laws (in which event the applicable laws shall govern), may not disclose it to any third party unless such third party is providing services or performing obligations hereunder and is bound in writing by confidentiality restrictions substantially similar to those required hereunder. The obligations to maintain the Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, if the recipient has given the other party prior written notice and provides reasonable assistance.
Partner. The use of the term “Partner” in this Agreement is for convenience only and in no event shall this Agreement create any legal partnership, joint venture, association, trust, agency or other such arrangement. Each party is an independent contractor.
Taxes. You will be solely responsible for and will pay any and all use, excise, sales and privilege taxes, duties, value added taxes, fees, assessments or similar liabilities however denominated and chargeable by a governmental authority as a result of the Partner Revenue Share, or any services or Intellectual Property provided under this Agreement, excluding taxes on our net income.
Assignment. You may not assign or transfer any part of this Agreement without the prior written consent of RunSignUp. We may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or a controlling interest in our stock but will endeavor to provide notice of such assignment as soon as practicable after it occurs.
Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions or power outages.
Compliance with Laws. Each of us shall abide by all applicable laws and regulations, including those addressing data security, data privacy and export controls, regarding our exercise of rights and performance of obligations under this Agreement.
Entire Agreement; Severability; Waiver. This Agreement is the entire agreement between You and RunSignUp with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and us regarding that subject matter. No amendment to or modification of this Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is found to be void or unenforceable, the provision will be stricken or modified and the remainder of this Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. All waivers must be in writing to be effective.
Governing Law and Jurisdiction. The laws of the State of New Jersey shall govern the interpretation and enforcement of this Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New Jersey with respect to any dispute arising out of or relating to this Agreement.
Notices. All notices must be in writing and shall be sent by first class U.S. mail or a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service). Notices to us shall be sent to our main address as listed on our website and, for each notice, a copy shall also be sent to our CFOO. Notice to You may be sent to your address set forth in the Agreement. Notices shall be deemed given upon receipt thereof.
Partner hereby certifies that its signatory below is an agent/representative of the Partner, that Partner has the right and authority to manage the Races covered hereunder, and that the signatory has the authority and power to bind said Partner to this Agreement by executing this Agreement below.