This Participation Agreement ("Agreement") is entered into between Align Technology, Inc., a Delaware corporation ("Company") and you, a blogger with whom the company will be providing compensation in exchange for a blog post ("you"). Company desires to have you perform certain marketing activities, and you desire to perform such activities, all on the terms and conditions set forth below.
1. SERVICES AND COMPENSATION. You have chosen to provide a single sponsored blog post about Invisalign on your blog in exchange for pre-negotiated compensation.
2. BLOGS AND POSTS. You agree to make any blogs or posts made in connection with this agreement (each, a "Posting") in compliance with all applicable laws, rules and regulations ("Applicable Law") and this Agreement. You also agree to remove or edit any Posting that does not, in Company's sole judgment, comply with Applicable Law or this Agreement, within five (5) days of Company's request. Further, the content of your Postings shall be consistent with the content of the Media Kit (as defined below). Your completion of any blog or social media promotion constitutes your consent to Company and its agent's use of your Postings, as well as your name, likeness, photograph, voice, opinions, and hometown and state for promotional purposes in any media, worldwide, without further payment or consideration.
3. MEDIA KIT. During the term of this Agreement, you will have access to certain brochures and other materials produced by or on behalf of Company for use of marketing Invisalign, Invisalign Teen and/or the Straight Talk program (collectively, the "Media Kit"). The Media Kit shall at all times be and remain the sole property of Company. You shall not use the Media Kit or any component thereof for any purpose whatsoever other than the completion of your sponsored post in accordance with this Agreement [and any guidelines for its use provided in Align's Art and Advertising Standards Guide or otherwise by Align]. All such uses of the Media Kit shall be in the form provided to you and you shall make no modifications, additions or deletions to the Media Kit or any component thereof. You further agree to take all reasonable precautions to prevent any unauthorized disclosure or use of the Media Kit. Upon the expiration or termination of this Agreement, or upon Company's earlier request, you will destroy all tangible embodiments of the Media Kit in your possession or control and cease all further use of the Media Kit.
4. TRADEMARKS. Subject to the terms and conditions of this Agreement, Company hereby grants to you, solely during the Term (as defined below), a limited, royalty-free, non-exclusive, personal and non-transferable license, without the right to sublicense, under the [Company trademarks included in the Media Kit] (the "Marks"), solely for purposes of completing sponsored blog posts in accordance with this Agreement. Your use of the Marks shall be subject to the following conditions: (i) all representations of the Marks that you intend to use shall first be submitted to Company for approval at email@example.com (which shall not be unreasonably withheld) of design, color and other details or shall be exact copies of those used by Company; (ii) you shall keep intact any proprietary notices; (iii) you shall comply with Company's trademark use guidelines found in the Media Kit.; (iv) all goodwill generated through your use of the Marks will insure to the benefit of Company or its licensors; (v) you hereby assign and agree to assign to Company any and all goodwill generated through your use of the Marks, without any payment or other consideration to it, and further agrees to take all actions necessary to effect such assignment; and (vi) upon termination of this Agreement, you shall cease using the Marks.
5. NO ADDITIONAL RIGHTS. No rights, options and/or licenses with respect to any intellectual property owned or controlled by Company are granted to you and/or will be implied or deemed granted under this Agreement and/or in connection with it, other than those rights expressly granted in Sections 3 and 4 of this Agreement.
6. TERM AND TERMINATION. This Agreement will commence upon your clicking the "I accept" button at the end of this Agreement and will continue six months after the single sponsored post is completed (the "Term"). Either you or Company may terminate this Agreement upon prior written notice thereof to the other party. Upon termination of this Agreement, all rights and duties of the parties hereunder shall cease.
7. INDEPENDENT CONTRACTOR. Nothing in this Agreement shall in any way be construed to constitute you as an agent, employee or representative of Company.
8. ARBITRATION AND EQUITABLE RELIEF. Company and you agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the making, interpretation, construction, performance or breach hereof, shall be finally settled by binding arbitration in San Jose, California under the then current rules of the American Arbitration Association by one (1) arbitrator appointed in accordance with such rules. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request and the arbitrator shall have no authority to award, punitive or exemplary damages against either party. The costs of the arbitration, including administrative and arbitrator's fees, shall be shared equally by the parties. Each party shall bear the cost of its own attorneys' fees and expert witness fees.
9. GENERAL. This Agreement (together with the Exhibits hereto) is the sole agreement and understanding between Company and you concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to such matter. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by you without the express written consent of Company. Company may assign this Agreement to any entity that succeeds to substantially all of the business or assets of Company. This Agreement shall be governed by the laws of the State of California, without reference to its conflicts of law principles. This Agreement may be amended by Company from time to time and shall constitute your acceptance of the then-current version of this Agreement. Waiver of any term or provision of this Agreement or forbearance to enforce any term or provision by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Agreement. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision.
Version Date: 1.0
Last Updated: June 8, 2012