PARTNER TERMS AND CONDITIONS
1. ENGAGEMENT
Company hereby engages Partner, and Partner accepts engagement, to provide to Company the following services:
A. Market and sell Company’s products and services (“Products”) to the companies and or individuals (“Client”).
2. TERM AND TERMINATION
2.1 Term. This Agreement will commence in force on the Effective Date and will continue for a term of one (1) year, unless terminated earlier as provided in this Agreement.
2.2 Termination for Cause. Either party may terminate this Agreement at any time upon written notice if the other party: (i) is in material breach of its obligations hereunder and fails to cure such breach within thirty (30) days following written notice of such breach, or (ii) becomes insolvent or files or has filed against it a petition under bankruptcy or insolvency law which is not dismissed within ninety (90) days, makes an assignment for the benefit of creditors or takes any similar action under applicable bankruptcy or insolvency law.
2.3 Termination on Other Grounds. This Agreement may be also terminated: (i) by either party for any or no reason and without liability upon thirty (30) days written notice;
2.4. Rights Upon Termination. Upon termination of the Agreement pursuant to Section 7.1, each party shall, at the other party’s discretion, either immediately destroy or return to the other party any and all Confidential Information of the other party in its possession or control and a duly authorized officer of such party shall certify to the other party in writing that such return and/or destruction, as the case may be, has occurred.
2.5. Survival. The rights and obligations contained in Sections 6 (Payment), 11 (Indemnity), 12 (Limitation on Liability), 2.4 (Rights Upon Termination), 2.5 (Survival), 3 (Non-Exclusive Engagement), 8 (Trademarks), and 16 (Controlling Law) shall survive any termination or expiration of this Agreement.
3. NON-EXCLUSIVE ENGAGEMENT
The Partner’s engagement under this Agreement is non-exclusive; and, subject to the Partner’s adherence to its obligations under this agreement. Neither this Agreement nor the Company’s engagement hereunder shall prohibit, restrict or limit the Company in any way from providing services to or otherwise engaging in any relationship with any other person or entity, including any actual or potential customers of, and competitors with, the Partner.
4. ELIGIBLE CLIENTS
Partner shall conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill, and reputation of Company. Partner shall avoid deceptive, misleading, or unethical practices that are or might be detrimental or disparaging to Company or its Products. Partner shall not publish or employ or cooperate in the publication or employment of any misleading or deceptive materials relating to the Products. Partner shall make no covenants, representations, warranties or guarantees to Clients or to the trade with respect to the specifications, features, or capabilities of the Product which are inconsistent with the literature distributed by Company, or which are inconsistent with the then current Company Clients Agreement. Partner will notify Company immediately of any knowledge or suspicion of any violations of Company’s patents, copyrights, trademarks, or other proprietary rights.
5. ELIGIBLE CLIENTS
Partner acknowledges and agrees that the Products and all other items provided hereunder and all copies thereof constitute valuable trade secrets of Company, or are proprietary and Confidential Information of Company, and title thereto remains in Company. All applicable copyrights, trade secrets, patents and other intellectual and property rights in the Products and all other items provided hereunder are and remain in Company. All other aspects of the Products and all other items provided hereunder, including without limitation, programs, methods of processing, and specific design of individual programs and their interaction and unique programming techniques employed therein as well as screen formats shall remain the sole and exclusive property of Company and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Partner, to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of the Products, or any part thereof is hereby transferred to Partner. Partner shall not reverse engineer, decompile, disassemble or otherwise derive source code from the Products. All rights not expressly granted herein are reserved to Company.
6. PAYMENT
- a) For Products sold by Company to Client. The Company shall pay Fees owed to the Partner hereunder within thirty (30) calendar days from the the end of calendar month in which payment is made by Client to Partner. If Client fails to pay for certain Products, there will be no corresponding fee payment to Partner.
- b) For Products sold by Partner to Client. The Partner shall pay Fees owed to the Company within 30 days from the end of calendar month in which Product is sold to the Client. If Client fails to pay for certain Products, there will be no corresponding fee payment to Partner.
6.3. Taxes. The Partner is responsible for the payment of all taxes which arise from the performance of the Services and the receipt of the Fees hereunder.
6.4. Net Revenue. Net revenue will be calculated by subtracting refunds, present and future taxes including any excise, sales, use, value added, withholding, and similar taxes, customs duties, tariffs, or similar fees, GST, VAT etc and payment processing fees such as credit card processing fee, Apple App Store Fee, Google Play Store Fee etc. pertaining to payment received by Company from Client for products procured by the Client during the Term of this agreement.
7. ELIGIBLE CLIENTS
Any company or individual referred to 9zest by Partner is eligible for payment under this agreement when client uses the referral code or referral link containing Partner ID to download and subscribe to the 9zest products and services unless Company already provides products or services or if sales efforts are underway through another source. The referral will automatically be revoked if the Client, referred to by Partner, does not buy any products or services within 90 days of the referral. In some cases, certain Clients might be referred by multiple Partners. Commission payment will be for the partner whose referral code or referral link was used for paid subscription.
8. TRADEMARKS
8.1 Trademarks. Company authorizes Partner to use Company’s current and future trademarks, service marks and trade names (“Marks”) solely in connection with the marketing and distribution of Products pursuant to this Agreement. Partner shall submit to Company all representations of the Marks that Partner intends to use in connection with the Products, for Company’s approval of design, color, and other details.
8.2 Ownership of Trademarks. If Partner, in the course of performing its services hereunder, acquires any goodwill in any of the Marks, all such goodwill will automatically vest in Company and Partner shall take all such actions or execute any documents necessary to make effective such vesting. Partner shall not contest the validity of any of the Marks or Company’s exclusive ownership of the Marks. Partner shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Marks, or any word or mark confusingly similar to the Marks in any jurisdiction. Partner shall not remove or efface any proprietary notices on the Products.
8.3. Any and all ideas, inventions, discoveries, know how, improvements and works of authorship, including, but not limited to, those which are or may be patentable or subject to copyright protection (including, but not limited to, object code, source code, annotations, flow charts and reports) that are created and/or conceived as a result of the performance of the services under this agreement, are and shall be the sole and exclusive property of Company.
9. WARRANTY AND DISCLAIMER
9.1 Limited Warranty. Company warrants, for a period of thirty (30) days following shipment (the “Warranty Period”), that the Products will perform substantially in accordance with the specifications in the documentation shipped with the Products. Company’s sole obligation and Partner’s and/or Client’s sole remedy for any breach of the foregoing warranty is to repair or replace the Products, provided however that if Company, in its sole discretion, determines that it is not able to repair or replace the Products, Company shall refund to Partner that portion of the purchase price paid for the Products that Partner is obligated to refund to the Client as a result of such breach of warranty. As a condition to the foregoing warranty, the Partner and/or Clients must provide Company with written notice of such Error within the Warranty Period. Misuse or modification of the Product by Clients, Partner or any third party will void all warranties.
9.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES ON THE PRODUCTS, MAINTENANCE AND SUPPORT, AND PROFESSIONAL SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT.
10. CONFIDENTIALITY
Partner will not, during or for 2 years subsequent to the term of this Agreement, use the Company’s Confidential Information for any purpose whatsoever other than the performance of the services on behalf of the Company or disclose the Company’s Confidential Information to any third party. It is understood that said Confidential Information shall remain the sole property of the Company. Partner further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information including, but not limited to, having each employee of Partner, if any, with access to any Confidential Information, execute a nondisclosure agreement.
Confidential Information does not include information which (i) is known to Partner at the time of disclosure to Partner by the Company as evidenced by written records of Partner, (ii) has become publicly known and made generally available through no wrongful act of Partner, or (iii) has been rightfully received by Partner from a third party who is authorized to make such disclosure. Without the Company’s prior written approval, Partner will not directly or indirectly disclose to anyone the existence of this Agreement or the fact that Partner has this arrangement with the Company.
11. INDEMNITY
11.1 Infringement Indemnification. Company shall, at its own expense, defend or settle any suit or proceeding that is instituted against Partner to the extent such suit or proceeding alleges that any Product sold by Company hereunder infringes any duly issued patent or copyright of the United States or the Partner’s headquarter office and shall pay all damages awarded therein against Partner or agreed upon in settlement by Company; provided that Partner (i) gives Company immediate notice in writing of any such suit, proceeding or threat thereof, (ii) permits Company sole control, through counsel of Company’s choice, to defend and/or settle such suit and (iii) gives Company all the needed information, assistance and authority, at Company’s expense, to enable Company to defend or settle such suit. In the event the use or sale of any Product purchased from Company is enjoined, or in the event Company wishes to minimize its potential liability hereunder, Company may, at its sole option and expense: (i) procure for Partner the right to distribute such Product; (ii) substitute a functionally equivalent, non-infringing unit or version of the Product; (iii) modify such Product so that it no longer infringes but is substantially equivalent in functionality; or (iv) if none of the foregoing are commercially feasible, take back such Product and refund the purchase price paid by Partner for such Product. Company shall in no event be obligated to accept new orders for Products which are subject to a claim of infringement covered under this section. THIS SECTION STATES THE SOLE LIABILITY OF COMPANY WITH RESPECT TO ANY INFRINGEMENT BY THE PRODUCTS OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY CLAIM.
11.2 Exclusions. Company’s obligations under Section 11.1 shall not apply to and Company shall have no liability or obligation for any infringement arising from: (i) any modification, servicing or addition made to the Product by anyone other than Company, (ii) the use of such Product as a part of or in combination with any devices, parts or software not provided by Company, (iii) compliance with Partner’s design requirements or specifications, (iv) the use of other than the then current unaltered release of the software Product available from Company or (v) the use of such Product to practice any method or process which does not occur wholly within the Product. The above exclusions apply to the extent that the infringement would have been avoided but for such modifications, combinations, compliance with specifications, use of other than the current release or practice of such method or process.
11.3 Partner Indemnification. Partner will defend, indemnify and hold Company harmless from and against any and all damages, liabilities, costs and expenses (including but not limited to attorney’s’ fees) arising out of or incurred by Company in connection with or as a result of any claim arising out of or relating to any acts or omissions of Partner in connection with this Agreement.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNTS PAID BY PARTNER TO COMPANY WITHIN ONE HUNDRED EIGHTY (180) DAYS PRIOR TO THE DATE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. COMPANY WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION), WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. COMPLIANCE WITH LAWS
13.1 Compliance. Partner agrees to comply with all applicable laws.
13.2 Audit Rights. During the term of this Agreement and for a period of two (2) years following any expiration or termination of this Agreement (“Auditing Period”), Partner shall maintain full and complete records of its provision of the Products to Clients (the “License Records”). For the purpose of verifying the accuracy of License Records, Company shall, at any time during the Auditing Period, be entitled to audit such License Records by providing Partner with fifteen (15) business days prior written notice; provided, however, that no more than one (1) audit may be conducted in any twelve (12) month period. Both parties shall mutually agree upon an independent third party auditor to conduct the audit and such auditor shall sign a standard confidentiality agreement with both parties. Any audit performed pursuant to this Section 10.4 shall be conducted during normal business hours and at Company’s expense; provided, however, that the cost of such audit shall be paid by Partner if the audit reveals an underpayment by Partner of more than five percent (5%) of the amounts payable by Partner to Company in any twelve (12) month period.
14. INDEPENDENT CONTRACTOR
Partner is and throughout this Agreement shall be an independent contractor and not an employee, partner or agent of Company. Partner shall not be entitled to nor receive any benefit normally provided to Company’s employees such as, but not limited to, vacation payment. retirement, health care or sick pay. Company shall not be responsible for withholding income or other taxes from the payments made to Partner. Partner shall be solely responsible for filing all returns and paying any income, social security or other tax levied upon or determined with respect to the payments made to Partner pursuant to this Agreement.
15. TOOLS AND SUPPLY
Unless otherwise agreed to by Company in advance, Partner shall be solely responsible for procuring, paying for and maintaining any computer equipment, software, paper, tools or supplies necessary or appropriate for the performance of Partner’s services hereunder.
16. CONTROLLING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Delaware.
17. HEADINGS
The headings in this Agreement are inserted for convenience only and shall not be used to define, limit or describe the scope of this Agreement or any of the obligations herein.
18. FINAL AGREEMENT
This Agreement constitutes the final understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties, whether written or oral: This Agreement may be amended, supplemented or changed only by an agreement in writing signed by both of the parties.
19. NOTICES
Any notice required to be given or otherwise given pursuant to this Agreement shall be in writing and shall be emailed, hand delivered, mailed by certified mail, return receipt requested or sent by recognized overnight courier service.
If to Partner: as per contact details specified in Exhibit B.
If to Company:
9zest, Inc.
Attn: Legal
Address: 8 The Green Suite #5910, Dover, DE 19901
Phone: 703-666-8122
Email: [email protected]
20. SEVERABILITY
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
21. DISPUTE RESOLUTION
21.1. Notification. In the event of any dispute arising out of or relating to this Agreement, the authorised person of either party (referred to for convenience in this Section as the “Delivering Party”) shall notify the authorised person of the other party (referred to for convenience in this Section as the “Notified Party”) and, when applicable, the Customer involved is such dispute, in writing of the dispute, specifying such dispute in reasonable detail (the “Dispute Notice”).
21.2. Response. The Notified Party shall respond to the Dispute Notice in writing within ten (10) business days of receipt thereof (the “Response Notice”), suggesting at least three (3) alternative times and places for discussing a resolution of the dispute.
21.3 Dispute Resolution Prior to Formal Proceedings. Each party agrees that the initiation of formal proceedings for resolution of any disputes shall not be commenced until the procedure set forth in this Section 9 has been exhausted.
22. MISCELLANEOUS
22.1. Allocation of Risk. The section on limitation of liability allocates the risks of this Agreement between the parties. This allocation is reflected in the Fees provided hereunder and is an essential element of the basis of the bargain between the parties.
22.2. No Assignment. Neither party may assign this Agreement or any rights or obligations under this Agreement without the written consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement to a third party without such consent, in the event of or in connection with a merger, reorganization or the sale of all, substantially all or a majority of its assets or voting securities
22.3. Use of Partner Name. The Company will have the right to include the Partner’s name on any list of the Company’s partners and in any materials prepared or distributed for purposes of sales, marketing and/or promotion.
22.4 Changes to Terms & Conditions. From time to time, we may, in our sole discretion, change, modify, supplement or remove portions of these Terms & Conditions (“Additional Terms”). Such Additional Terms may be (i) made by the posting of a new version and/or (ii) placed on the Website(or such other URL that 9zest, Inc. may provide from time to time) and/or Applications to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You will be deemed to have agreed to such Additional Terms by your decision to continue to provide the services following the date on which such Additional Terms are posted.