ConsciousNet Affiliate and Partner Agreement
DATED: THE 1st DAY OF JULY 2021
PLEASE READ THIS PARTNER PROGRAM AGREEMENT CAREFULLY
This is a contract between you (the Partner or Provider, together addressed as Participant(s)) and us (ConsciousNet). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessary, but we have tried to make it as readable as possible. This document applies to your participation in our Partner Program (the “Program”). By participating in our Program, you are agreeing to these terms.
“Agreement” means this ConsciousNet Partner Program Agreement and all materials referred or linked to in here. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Whether or not marked or designated as confidential, Confidential Information shall include all information concerning: (a) Disclosing Party’s customer and prospect information, including Customer Data and Customer Materials, as defined in the Customer Terms of Service (b) Disclosing Party’s past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research and development materials. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. “Customer Terms of Service” means those terms and conditions located at ConsciousNet’s website as modified from time to time. “End User” means the authorized actual user of the ConsciousNet Products or the party on whose behalf you use the ConsciousNet Products. “End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the ConsciousNet Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the ConsciousNet Products. “ConsciousNet Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into ConsciousNet Products and all of our other services. “ConsciousNet Products” means both the Subscription Service and Other Products.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
3. Qualified Transactions
a. Partner and Provider Rights and Obligations.
We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the ConsciousNet Products to your prospects and customers, and (ii) to provide End Users access to use the ConsciousNet Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a prospect.
b. Compliance with Program Policies.
You will comply with the terms and conditions of this Agreement at all times. Specifically, if you are participating in the Program as a Partner. Failure to comply with the Partner Program Policies may result in termination of this Agreement in accordance with the “Termination” section of this Agreement or in accordance with any other termination right we may have.
c. Other Eligibility Requirements.
To be eligible for a Revenue Share, a prospect must be registered, accepted and valid in accordance with the ‘Submission, Acceptance and Validity’ or the ‘Shared Leads’ section. You are not eligible to receive a Revenue Share or any other compensation from us based on transactions for Other Products, based on transactions with a ConsciousNet Lead (as defined below) or if:(i) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us; (ii) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us with respect to a given transaction; (iii) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you; (iv) the End User participates in this Program, or (v) for any transactions with End User that precede in time to you becoming a Partner or Provider in this Program under this Agreement. In competitive situations with other Partners or Providers, we may elect to provide the Revenue Share to the partner that actually secures the business with the End User, which may result in you being ineligible for Revenue Share, regardless of whether or not you registered the prospect. We may terminate this Agreement and/or discontinue Revenue Share payment(s) should you fail to meet any of the eligibility criteria set forth in this subsection of the Agreement or as outlined in the Program Policies at any time.
d. Submission, Acceptance and Validity of Prospects.
You must register each prospect with us through our CRM system, by email, or by any other process agreed in writing between the Parties, prior to the close of a Qualified Transaction. We generally will accept a prospect who, in our reasonable determination: (i) is a new potential customer of ours; (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process, or your Affiliate; (iii) is a Legitimate Prospect whose contact information was legally obtained. Notwithstanding the foregoing, we may choose not to accept a prospect, in our reasonable discretion. We may choose to do so at the time of your registration submission, or we may deregister and reject a prospect. Once the valid prospect is ready to purchase, we will, at our discretion, accept an order and provision the Subscription Service for the End User in order to complete a Qualified Transaction.
e. Shared Leads.
We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you offer (each, a “Shared Lead”). We can do the same for other partners of ours, even if it is for the same Shared Lead. You may use the information about the Shared Lead provided only to market and sell your services to them and not for any other purpose (unless the Shared Lead otherwise consents). Immediately upon our or the Shared Leads request, you will promptly discontinue all use of and delete the Shared Lead’s information. Shared Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.
f. Engagement with Prospects and End Users.
4. Revenue Share and Payment.
a. Requirements for Payment; Forfeiture.
In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement, fulfilled all eligibility requirements to be a Partner or Provider under this Agreement and are in compliance with this Agreement; (ii) provided us with all of your account information, including your bank information; and (iii) submitted to us all the necessary and valid tax documents and the documents have been approved. All payments by ConsciousNet will be made by Stripe, or Bank Transfer and it is your responsibility to ensure that you have provided us with the most up-to-date and correct information to facilitate the transfer.
b. Revenue Share Payment.
We, or one of our Affiliates, will pay the Revenue Share amount due to you on the 20th of the following month of the transaction. We will not pay more than one Revenue Share or other similar referral fee on any given partner sale (unless we choose to in our discretion).
You are responsible for payment of all taxes applicable to the Revenue Share. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
d. Payment Obligations.
In the event you placed the order and contracted with us directly for an End User, for payments made by credit card, you will provide us with your valid and updated credit card information or bank account information for the payment of ConsciousNet Products fees. You authorise us and our Affiliates to charge your credit card or bank account for all fees payable. You also authorise us and our Affiliates to use a third party to process payments, and consent to the disclosure of your payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice. In the event you placed the order with us for an End User, if you do not pay fees due for an End User’s account within ten (10) days after notice of non-payment from us or our Affiliate, we may suspend the ConsciousNet Products while any payment is delinquent and may charge a re-activation fee to reinstate any ConsciousNet Products. We may also terminate or suspend the End User’s access to the ConsciousNet Products and/or to initiate direct communication with the End User. Notwithstanding the expiration or earlier termination of this Agreement, you remain obligated to pay all fees due for our provision of the ConsciousNet Products to End Users in connection with an order placed with us by you for an End User. If you placed the order with us for an End User and/or contracted with us on their behalf, you will have sole responsibility for invoicing and collecting fees for the ConsciousNet Products from the End User. Your obligation to pay fees to us is not conditioned upon your receipt of payment from the End User.
5. Training and Support
a. End User Training and Support.
We may require End Users to go through and/or purchase on-boarding products. We will provide user training purchased by an End User as set forth in a mutually agreed upon order between the End User and ConsciousNet. We may communicate directly with any End User about use of the ConsciousNet Products and any support issues experienced.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Participant Marks”) in connection with the Program and this Agreement. We retain all ownership rights in ConsciousNet Trademarks. You must not use any of our trademarks: (a) in a misleading or disparaging way; (b) outside the scope of the Program or this Agreement; (c) in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
a. ConsciousNet’s Proprietary Rights.
No license to any software is granted by this Agreement. The ConsciousNet Products are protected by intellectual property laws. The ConsciousNet Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the ConsciousNet Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the ConsciousNet Content, or the ConsciousNet Products in whole or in part, by any means, except as expressly authorized in writing by us.
b. End User’s Proprietary Rights.
As between you and End User, End User retains the right to access and use the End User portal associated with the ConsciousNet Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If we deem it to be necessary based on the relationship status between you and the End User or the particular situation, we may communicate directly with the End User and/or may port ownership of the portal associated with the ConsciousNet Products to the End User.
a. The Receiving Party shall:
(i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
b. Injunctive Relief.
Each party acknowledges that the unauthorized use or disclosure of the other party’s Confidential Information may cause irreparable harm to the other party. Accordingly, each party agrees that the other party will have the right to seek an immediate injunction against any breach or threatened breach of this “Confidentiality” section of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.
8. Opt Out and Unsubscribing
9. Term and Termination
This Agreement will apply for as long as you participate in the Program and fulfill all the participation requirements under the Program, until terminated.
b. Termination Without Cause.
Both you and we may terminate this Agreement on thirty (30) days written notice to the other party. Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all ConsciousNet badges and references to this Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.
c. Termination for Agreement Changes.
If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
d. Termination for Cause.
We may terminate this Agreement and/or suspend your or the End User’s access to the ConsciousNet Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) automatically, within thirty (30) of you failing to meet the Program requirements applicable to you in your capacity as either the Provider or the Partner; (iii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iv) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (v) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (vi) immediately, if you breach your confidentiality obligations under this Agreement or infringe or misappropriate ConsciousNet’s intellectual property rights, (vii) immediately, if you breach the terms applicable to your subscription with us, including if you default on your payment obligations to us or our Affiliate, or (viii) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all ConsciousNet badges and references to this Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.
10. Partner Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Participant Marks.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Program, (b) our use of the prospect or lead data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of or participation in the Optional Programs, (e) your use of the ConsciousNet Demo Account, or (f) our use of the Participant Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
12. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties.
We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the ConsciousNet products, ConsciousNet content, the program, the optional programs or the ConsciousNet demo account for any purpose. application programming interfaces (Apis) and the ConsciousNet demo account may not be available at all times. to the extent permitted by law, the ConsciousNet products, ConsciousNet content, the program, the optional programs, and ConsciousNet demo account are provided “as is” without warranty or condition of any kind. we disclaim all warranties and conditions of any kind with regard to the ConsciousNet products, ConsciousNet content, the program, the optional programs, and ConsciousNet demo account including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
b. No Indirect Damages.
Except for your liability arising from your obligations under the “confidentiality” section, and your liability for violation of our intellectual property rights, to the extent permitted by law, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.
c. Limitation of Liability.
If, notwithstanding the other terms of this agreement, we are determined to have any liability to you or any third party, the parties agree that our aggregate liability will be limited to the total revenue share amounts you have actually earned for the related qualified transaction in the twelve-month period preceding the event giving rise to a claim. In the event that the claim arises from or is related to this agreement but is not related to a specific qualified transaction, our aggregate liability shall not exceed the total amount of subscription services fees paid by partner or provider to ConsciousNet in the 12 months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any public job posting or public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
a. Amendment; No Waiver.
We may update and change any part or all of this Agreement, including by replacing it in its entirety. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure.
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Relationship of the Parties.
Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
d. Entire Agreement.
This Agreement is the entire agreement between us for the Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the ConsciousNet Products or dependent on any oral or written public comments made by us regarding future functionality or features of the ConsciousNet Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
e. Program Policies.
We may change the Program Policies from time to time. Your participation in the Program is subject to the Program Policies
f. No Licenses.
We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the ConsciousNet Products, our trademarks, or any other property or right of ours.
g. Sales by ConsciousNet.
This Agreement shall in no way limit our right to sell the ConsciousNet Products, directly or indirectly, to any current or prospective customers.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
The following sections shall survive the expiration or termination of this Agreement: ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.Except for your liability arising from your obligations under the “confidentiality” section, and your liability for violation of our intellectual property rights, to the extent permitted by law, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.