This Partner Program Agreement (the “Agreement”) is entered into by and between Partner (as identified on signature page) and InsideSales.com, Inc, a Delaware corporation, with its principal place of business at 34 East 1700 South, Suite A220, Provo, UT 84606 (“InsideSales.com”).
1.1 Effective Date means the date of execution of this Agreement by InsideSales.com.
1.2 End User means a third party that is licensed to use the Service for its own business operations or is targeted as an Opportunity for such licensing.
1.3 Opportunity means, in InsideSales.com’s reasonable determination: (i) a referral of a new End User, or a new subsidiary, division or other distinct business unit of a pre-existing End User; or (ii) a purchase of additional subscriptions to the Services or an upgrade in the Services for an End User originally referred to InsideSales.com by Partner, which purchase resulted from Partner’s specific sales efforts. Notwithstanding the foregoing, to qualify, an Opportunity cannot be: (a) an existing InsideSales.com qualified opportunity then currently, or during the prior twelve (12) months, in InsideSales.com’s active sales process, or (b) an affiliate of Partner which controls, is controlled by, or is under common control with Partner.
1.4 Partner Web Site means the InsideSales.com web site containing information regarding InsideSales.com Partner Program located atwww.InsideSales.com/partners or at such other URL as InsideSales.com may designate.
1.5 Program Description means the then-current applicable InsideSales.com Partner Program Description, which is hereby incorporated into this Agreement. InsideSales.com may revise the Program Description from time to time, with any revised Program Description becoming effective and superseding all earlier program descriptions thirty (30) days after it is posted on the InsideSales.com Partner Web Site or delivered through one of the methods listed in SECTION 13.1.
1.6 Qualified Purchase means, in InsideSales.com’s reasonable determination, a purchase of a subscription to the Service that is fully executed, paid for, and closed within six (6) months of the corresponding referral of the Opportunity.
1.7 Service means the InsideSales.com online software platform and customer relationship management service. This Service does not include support, implementation, customization, training, consulting or other professional services, long-distance minutes, or third party products or services.
1.8 Territory shall be the United States and Canada.
2. APPOINTMENT. Subject to the terms and conditions of this Agreement, InsideSales.com appoints Partner as a nonexclusive affiliate of InsideSales.com within the Territory. This appointment is neither assignable nor transferable without the prior written consent of InsideSales.com. Rights not expressly granted in this Agreement are hereby reserved by InsideSales.com. Partner understands and acknowledges that InsideSales.com and its other Affiliates may sell the Services directly and indirectly to End Users in the Territory.
3. REFERRAL FEES
3.1. Referral Fees. InsideSales.com will pay Partner a referral fee for each Opportunity that Partner submits to InsideSales.com that results in a Qualified Purchase in accordance with the applicable referral fee schedule as set forth in the Program Description.
3.2. Payments. InsideSales.com will be solely responsible for billing End Users of the Service and collecting payment. InsideSales.com will pay Partner any owed referral fees as scheduled in the Program Description.
3.3. Taxes. All amounts payable hereunder are exclusive of any sales, use, excise, property, value added or any other taxes associated with Partner’s or an End User’s use of the Services. Partner is responsible for payment of any and all such taxes based InsideSales.com’s payment of the referral fees.
5. TRAINING AND SUPPORT. InsideSales.com will provide training and support as set forth in the Program Description. Such training and support may be at additional cost and shall be pursuant to any fee schedule set forth in the Program Description.
6. PARTNER’S OBLIGATIONS
6.1. Requirements. Partner shall use its best efforts to comply and maintain compliance with the requirements listed in the then-current Program Description. If at any time Partner is not in compliance with any such requirements, InsideSales.com may terminate this Agreement in accordance with Section 12.3 herein.
6.2. Conduct. Partner agrees (i) to conduct business in a manner that complies with all applicable laws and regulations and reflects favorably at all times on the Services and the goodwill and reputation of InsideSales.com, (ii) not to engage in any deceptive, misleading or unethical practices, (iii) not to publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material, and (iv) to make no representations, warranties, or guarantees with respect to the specifications, features, or capabilities of Services that are inconsistent with the license agreements, warranties or literature distributed by InsideSales.com.
6.3. Protection of Services. Partner shall promptly notify InsideSales.com of any suspected copyright or trademark infringement and provide reasonable assistance in investigating and prosecuting any such activity. Partner shall not deface, obscure or remove from the Service any copyright notice, trademark, labeling or other notice or item included therein or therewith, and Partner shall not permit or encourage another to do so.
7. WARRANTIES, DISCLAIMERS AND LIMITATIONS
7.2. Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, INSIDESALES.COM MAKES NO WARRANTIES, AND INSIDESALES.COM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
7.3. Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, INSIDESALES.COM’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF REFERRAL FEES PAID BY INSIDESALES.COM TO PARTNER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
7.4. Exclusion of Certain Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, INSIDESALES.COM SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE OR BUSINESS OPPORTUNITIES, REGARDLESS OF THE FORM OF ACTION AND EVEN IF INSIDESALES.COM HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
8.1. Misrepresentation and Wrongful Conduct. Partner shall be responsible for, and shall indemnify InsideSales.com against and hold InsideSales.com harmless from, any and all claims, damages, suits, judgments and expenses (including reasonable attorneys’ fees) arising out of any misrepresentation or wrongful conduct of Partner or its employees or agents. Partner agrees that in the course of advertising and selling the Services it shall make no representations or claims other than those contained in the standard descriptions and advertising literature for the Services furnished to Partner by InsideSales.com. In the event that Partner makes any representation or claim other than those permitted above, InsideSales.com shall have no responsibility, liability, obligation or expense relating to or resulting from such representation or claim by Partner and Partner shall indemnify InsideSales.com against any such responsibility, liability, obligation or expense.
8.2. Intellectual Property. InsideSales.com agrees to defend Partner against any action brought against Partner with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim that the Services infringes or violates any U.S. intellectual property rights of third parties not affiliated with Licensee, including without limitation, rights associated with patents, copyrights, trademarks, or trade secrets.
8.3. Notice. In claiming any indemnification under Section 8.1 or 8.2, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing Sections. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which shall not be unreasonably withheld.
9. OWNERSHIP & PROPRIETARY RIGHTS
9.1. Property Rights. Partner agrees and acknowledges that this Agreement does not transfer or convey to Partner or its End Users any ownership in or to the Services, or in or to any patents, trademarks, inventions, copyrights, trade secrets or any other intellectual property relating to the Services, and that all of the foregoing are owned and held exclusively by InsideSales.com and/or its licensors, if any.
9.2. Modification. This Agreement does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate, or otherwise copy or reproduce any of the Services. Partner shall not develop derivative works or derivative products with the use or aid of any Services, or reproduce or disassemble, decompile, reverse engineer any Services. Partner shall not modify the Services or bundle the Services with any non-InsideSales.com services or components without express written consent from InsideSales.com.
9.3. Feedback. Any recommendations, ideas, contributions, corrections, enhancements, improvements, or the like relating to the Services that are submitted to InsideSales.com by Partner and are incorporated, implemented, or used by InsideSales.com in the Services, or in any computer programs, products, technology, or processes of InsideSales.com, shall be the sole property of InsideSales.com and the same, together with all copyrights, trade secrets, patent rights, and other intellectual property thereto shall be and hereby are assigned to InsideSales.com.
10. CONFIDENTIALITY. Partner acknowledges that, by reason of its relationship to InsideSales.com under this Agreement, Partner may have access to certain information and materials concerning business, plans, End Users, technology, and products that are confidential. Such information and materials are of substantial value to InsideSales.com which value would be impaired if such information were disclosed to third parties. Partner shall not disclose to third parties, or use in any way for its own account or for the account of any third party, any such confidential information disclosed to it by InsideSales.com. Partner shall not publish any descriptions of the Services beyond the descriptions published by InsideSales.com.
11. TRADEMARKS & TRADE NAMES
11.1. Trademark Rights. Subject to the terms and conditions of this Agreement, InsideSales.com grants to Partner a nonexclusive, nontransferable, royalty-free right to use the InsideSales.com logo and any other trademarks set forth in the Program Description (“Trademarks”), but only to promote and market the Services during the term of this Agreement and only in accordance with InsideSales.com’s then-current trademark usage policies as published by InsideSales.com on its web site or as otherwise communicated to Partner from time to time. Partner acknowledges that InsideSales.com is the owner of the Trademarks and Partner agrees that it will do nothing inconsistent with such ownership and that all use of the Trademarks by Partner shall inure to the benefit of InsideSales.com. Upon use of InsideSales.com trademarks, Partner agrees to notify InsideSales.com within thirty (30) days of its use and to supply a copy of the material containing trademarks, including disclosure of distribution and intended recipients of the material. Partner acknowledges that the Trademarks are valid under applicable law. Partner shall not register or attempt to register the Trademarks in any country or jurisdiction. Partner shall not make any express or implied statement or suggestion, or use the Trademarks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on InsideSales.com or its business, products or services.
11.2. No Conflict. Partner agrees that it shall not adopt a trademark, trade name, uniform resource locator (“URL”), Internet domain name or symbol confusingly similar to any trademark or name of InsideSales.com or its products. If it is found that Partner has used or is using or has previously registered such prior to or after entering into this Agreement, Partner shall irrevocably and without limitation or additional consideration assign, transfer, and convey all rights, privileges, registrations, and titles, if any, claimed by Partner to InsideSales.com and shall then strictly comply with the provisions of this Section 11. InsideSales.com may (in addition to any other available remedies) terminate this Agreement immediately if Partner opposes, contests, or challenges in any manner InsideSales.com’s ownership and use of its name and trademarks.
12. TERM & TERMINATION
12.1. Term of the Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for one (1) year. This Agreement shall thereafter automatically renew for successive one year terms, unless a party provides the other with a written notice of termination at least thirty (30) days prior to the expiration of the initial term or the then-current renewal term.
12.2. Termination for Default. Notwithstanding Section 12.1, Either party may terminate this Agreement by giving written notice to the other party if the other party has breached a material provision of this Agreement and has failed to cure such breach within thirty (30) days after receipt of written notice of such breach.
12.4. Effect of Termination. Upon termination of this Agreement for any reason, all rights and licenses granted to Partner under this Agreement will immediately terminate. Partner shall continue to be entitled to receive any amounts owing to Partner up to the date of termination, at which time payment of Referral Fees to Partner will be discontinued, unless otherwise stated in the agreement. Termination of this Agreement shall not act as a waiver of any breach of this Agreement or as a release of either party from any liability for breach of such party’s obligations under this Agreement. Notwithstanding any other provision in this Agreement, InsideSales.com will not by reason of the termination of this Agreement be liable for compensation, reimbursement, or damages on account of any loss of prospective profits on anticipated sales, or on account of any expenditures, investments, or other commitments made in connection with Partner’s business or goodwill, or otherwise.
12.5. Survival. Sections 3.3, 7, 8, 9, 10, 12, 13, and any other provision of this Agreement which by its nature or express terms extends beyond the duration of this Agreement, shall survive termination of this Agreement.
13. OTHER PROVISIONS
13.1. Notices. Unless otherwise expressly provided in this Agreement, all notices and other communications required or permitted under this Agreement must be in writing and shall be: (a) delivered personally, (b) sent by confirmed telex, fax, or e-mail (c) sent by commercial overnight courier with written verification of receipt, or (d) sent by registered or certified mail, return receipt requested, postage paid. Unless a substitute address is communicated to the other party in writing, any such communications must be sent to Partner’s address as set forth in this Agreement and to InsideSales.com at the following address: InsideSales.com, Inc., Attn: Partner Program, 34 East 1700 South, Suite A220, Provo, UT 84606, with a copy to Attn: Legal Counsel.
13.2. Assignment and Successors. Partner may not transfer or assign, directly or indirectly, this Agreement or any interest therein or any right or obligation thereunder, voluntarily or by operation of law without InsideSales.com’ prior written consent. InsideSales.com may assign or transfer this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any attempted assignment or delegation without such consent, except as expressly set forth herein, will be void, or at the non-assigning party’s sole discretion, may be treated as fully binding upon and in force and effect against any such successor or assign. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
13.3. Independent Contractors. The parties are independent contractors. Notwithstanding the use of the term “Partner” in this Agreement, for all legal purposes, the parties are not partners or joint ventures and their relationship is not that of a partnership, joint venture or principal-agent. Instead, the parties are independent contractors. All financial obligations associated with a party’s business are the sole responsibility of such party. Partner does not have any express or implied right, power or authority to enter into any agreement or commitment on behalf of InsideSales.com. All sales and other agreements between Partner and its End Users are Partner’s exclusive responsibility.
13.4. Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the law of the State of Utah and the United States of America. The federal and state courts of the State of Utah shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.
13.5. Publicity. InsideSales.com may use the name and identity of Partner in advertising, publicity, or similar materials to designate Partner as a participant in InsideSales.com’s Partner Program.
13.6. Entire Agreement. This Agreement (including the Program Description, and any Appendices): (i) represents the entire agreement between the parties relating to the subject matter of this Agreement, (ii) supersedes all prior agreements, documents, understandings, and representations relating to the subject matter of this Agreement, and (iii) may only be amended, canceled or rescinded by a writing signed by both parties, except for any revisions that InsideSales.com may make to the Program Description or this agreement as described in Section 1.5 and Section 13.7. Any terms or conditions of any purchase order or other document submitted by Partner which are in addition to, different from or inconsistent with the terms and conditions of this Agreement are not binding on InsideSales.com and are ineffective. The terms of the Program Description will govern in the event of any conflict between the Program Description and the Terms and Conditions.
13.7. Revisions. InsideSales.com may revise this agreement from time to time, with any revisions becoming effective and superseding all earlier terms and conditions thirty (30) days after it is posted on the InsideSales.com Partner Web Site or delivered through one of the methods listed in SECTION 13.1.
13.8. Severability. If any provision of this Agreement is invalid under applicable law, such provision shall be limited, narrowed, construed and altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary, the invalid provision shall be eliminated from this Agreement and the remaining provisions shall remain in full force and effect.
13.9. Construction. The wording of this Agreement is the wording selected by the parties to define their mutual agreement, and this Agreement shall not be construed or interpreted in any manner that favors any party over the other party. Further, whenever the context reasonably permits, the singular shall include the plural, the plural shall include the singular, and the whole shall include any part thereof.