Proposify Channel Partner Program Agreement
Last updated: Sept 02/2020
Proposify reserves the right to reject your application to participate in the Partner Program for any reason, as determined in our sole discretion. Prior to accepting your application, we may require that you complete certain additional requirements or certifications. If you are accepted to participate in the Partner Program, we will notify you within thirty (30) days from the date you submit your application and you will be required to complete any applicable enrollment criteria as set out in “Program Requirements” under the applicable Program Module Addendum. If we do not notify you that you have been accepted to participate in the Partner Program within thirty (30) days from the date you submit your application, your application is deemed to be rejected.
- Partner. The term “Partner” as used in this Agreement shall refer to either a Channel Partner or an Channel Partner , as applicable. A “Channel Partner” means a Partner that is subject to the terms and conditions contained in the Channel Partner Program Module Addendum.
- Modifications and Amendments by Proposify. Upon thirty (30) days prior written notice to Partner, Proposify, in its sole discretion, reserves the right to modify or amend the terms of the Partner Program (including the terms and conditions under a Program Module Addendum). Partner’s continued participation in the Partner Program following such notice shall constitute acceptance of the change. If a modification/amendment is unacceptable to Partner, Partner’s only recourse is to terminate its participation in the Program within thirty (30) days of such notice in accordance with Section 6(2).
- Trademarks, Intellectual Property & Confidential Information.
- Trademarks. Proposify grants Partner a non-exclusive, non-transferable, limited license to use those Proposify trademarks, trade names, trademark applications, logos and related images (collectively, the “Marks”) provided under the Partner Program for the sole purpose of exercising its rights and performing its obligations under this Agreement. Proposify may revoke this license at any time in its sole discretion. Partner’s use of the Marks shall conform with any trademark usage guidelines provided by Proposify, as developed and amended by Proposify from time to time, and all use by Partner of the Marks shall ensure to the benefit of Proposify.
- Intellectual Property. Any Benefits, including Solutions and Technical Services, provided to Partner in connection with the Partner Program, and any and all copyrights, copyright registrations and applications therefore, moral rights, patents, patent applications, Marks and applications thereof, industrial designs, industrial design applications, inventions, processes, trade secrets, integrated circuit topographies and integrated circuit topography applications and other industrial or intellectual property anywhere in the world, whether or not registered or registrable (collectively, “Intellectual Property Rights”) therein or in associated documents or designs, shall remain the sole and exclusive property of Proposify and its licensors.
- Confidential Information. As used in this Agreement, “Confidential Information” means any and all data and information of a confidential nature, regardless of whether such data and information is specifically identified as “confidential”, including, but not limited to, End User Data (as defined below), business practices, service plans, finance or financial projections, pricing methods, strategic and business forecasts, software, technical information, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects. “End User Data” means any data, information or other materials of any nature whatsoever, provided to a party hereto by an end user of the Solutions, including any data otherwise captured or generated by such Solutions. Confidential Information may be communicated orally, in writing or in any other recorded or tangible form. Neither Proposify nor Partner shall make use of, disseminate or in any way disclose the other party’s Confidential Information (including End User Data), except to the extent necessary for such party’s performance of its obligations under this Agreement. Each party shall treat Confidential Information with the same degree of care as it accords to its own confidential information, but in no event less than reasonable care, and may disclose Confidential Information only to those of its employees and contractors who need to know such information and who have previously agreed in writing to be bound by terms and conditions at least as protective of such Confidential Information as set forth in this Section 5(3). Confidential Information does not include information that: (i) is or becomes generally available to the public through no fault or breach of this Agreement by the receiving party; (ii) was in the receiving party’s possession free of any obligation of confidence at the time it was communicated to such party by the disclosing party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of any obligation owed to the disclosing party; or (iv) was developed by employees, agents, or contractors of the receiving party independently of and without reference to any information communicated to such party by the disclosing party.
- Term and Termination.
- Term. Unless otherwise set forth in an applicable Program Module Addendum, the term of this Agreement shall be for a term of one (1) year commencing on the Effective Date (the “Initial Term”). This Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
- Early Termination. Either party may terminate this Agreement by giving at least fourteen (14) days advance written notice to the non-terminating party. Any fees paid by Partner to Proposify under this Agreement prior to such early termination, whether terminated by Proposify or Partner, shall not be repaid or reimbursed to Partner.
- Termination of Agreement. Upon the termination or expiration of this Agreement, all Program Module Addendums (and the Benefits granted thereunder) shall similarly terminate and all related licenses to any and all Proposify Solutions, Technical Services, Confidential Information or Marks made available as a result of this Agreement shall terminate, and all such materials and tangible embodiments thereof shall be returned or destroyed.
- Termination of Program Module Addendum. Upon termination or expiration of any Program Module Addendum under this Agreement, all Benefits under such Program Module Addendum shall similarly terminate and all related licenses to any and all Solutions, Technical Services, Confidential Information or Marks made available as a result of such Program Module Addendum shall terminate, and all such materials and tangible embodiments thereof shall be returned or destroyed. For clarity, the termination or expiration of: (i) a particular Program Module Addendum shall not result in the termination or expiration of this Agreement (including other Program Module Addendums in existence under this Agreement as of such date of termination or expiration), unless expressly so provided; and (ii) a particular Benefit granted under a Program Module Addendum shall not result in the termination/expiration of such Program Module Addendum (including other Benefits in existence under such Program Module Addendum as of such date of termination/expiration) unless expressly so provided.
- Limited Warranties.
- By Partner. Partner represents and warrants that it will: (i) perform its obligations hereunder and otherwise conduct its business in a manner that reflects favourably upon Proposify, the Solutions and the Marks; and (ii) refrain from deceptive, misleading or unethical business practices of any kind.
- By Proposify. Proposify shall defend, indemnify and hold Partner and Partner’s shareholders, directors, officers, employees, agents, successors and assigns (each, an “Partner Indemnitee”) harmless from and against any and all settlements, judgments, awards, fines, penalties, interest, liabilities, losses, costs, damages and expenses, including legal fees and disbursements and court costs (“collectively, “Losses”) incurred by such Partner Indemnitee arising out of or relating to any dispute, action, claim, demand, suit or proceeding (“Claim”) by a third party to the extent that such Losses arise from any allegation in such Claim that Partner’s use of the Solutions or Benefits in compliance with this Agreement infringes any Intellectual Property Rights of a third party, provided that Partner: (i) promptly gives written notice of the Claim to Proposify; (ii) gives Proposify sole control of the defence and settlement of the Claim; and (iii) provides to Proposify all reasonable assistance in defending the Claim.
- By Partner. Partner shall defend, indemnify and hold Proposify and Proposify’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “Proposify Indemnitee”) harmless from and against any and all Losses incurred by such Proposify Indemnitee arising out of or relating to any in Claim by a third party that arise out of: (i) Partner’s breach of this Agreement; or Partner’s actual or alleged violation or infringement of the rights of a third party.
- Cooperation on Disputes. Partner shall cooperate with Proposify with respect to any inquiry, dispute or controversy in which Proposify may become involved and of which Partner may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of Partner’s personnel.
- Limitation of Liability.
- Except with respect to each party’s indemnification obligations in Section 6, in no event shall either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the Claim, including, without limitation, lost profits, business interruption, lost or damaged data or documentation or liabilities to third parties arising from any source, even if such party has been advised of the possibility of such damages. This limitation is intended to apply without regard to whether other provisions of this Agreement have been breached or have declared void, invalid, illegal or unenforceable.
- The cumulative liability of Proposify to Partner for all claims arising from or relating to this Agreement including, without limitation, any cause of action in contract, tort or strict liability, shall not exceed the total amount of all fees having been paid by Partner to Proposify under this Agreement, in each case during the 12-month period preceding the event giving rise to the relevant liability.
- The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties and shall apply notwithstanding the failure of their essential purpose.
- Survival. Sections 4, 7, 8, and 9 shall survive the expiration or earlier termination of this Agreement or any Program Module Addendum for any reason.
- Governing Law. This Agreement shall be governed in accordance with the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein. Any Claims arising out of this Agreement will be subject to the exclusive jurisdiction of the provincial and federal courts located in the Province of Nova Scotia.
- Independent Contractor. Partner is an independent contractor pursuant to this Agreement, and nothing in this Agreement creates any agency, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to create any obligations on behalf of or in the name of the other party, except as expressly provided in this Agreement.
- Force Majeure. Neither party will be responsible for failure or delay of performance of any obligation under this Agreement 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.
- Integration. This Agreement sets forth the entire agreement and understanding between the parties, and supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. Subject to Section 2, any modification or amendment to this Agreement must be in writing and signed by both Proposify and Partner.
- Severability. If a court of competent jurisdiction finds any provision of this Agreement or portion thereof to be void, invalid, illegal or unenforceable, the remainder of this Agreement or the application of such provision or portion thereof shall not be affected thereby. Each provision of this Agreement shall be legal, valid and enforceable to the fullest extent permitted by law.
- Waiver. The waiver by a party of a breach of any provisions contained herein shall be deemed effective only when in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
- Assignment. Partner shall not assign its rights or delegate its obligations under this Agreement without Proposify’s prior written consent and, in the absence of such consent, any purported assignment or delegation by Partner shall be null, void and of no effect.
- Enurement. This Agreement shall be binding upon and enure to the benefit of Proposify and Partner and their successors and permitted assigns.
- Marketing; Publicity. Partner consents to publication of its name by Proposify as an Partner of the Partner Program or any applicable component thereof. Proposify authorizes Partner to include in its marketing or product distributions, marketing materials about the Solutions that Proposify has prepared and provided to Partner for this purpose. Partner shall not alter, modify or otherwise change any material provided to it by Proposify. Partner may also use other marketing materials of its own to promote the Solutions, but Proposify must approve all such marketing materials in advance in writing. Proposify shall have sole authority to approve any and all press releases, announcements or similar materials mentioning Proposify, and Partner shall have sole authority to approve the use of its name in any marketing or other materials submitted to any public source. Neither party shall unreasonably withhold its approval in connection with a request under this section.
- Notification. Partner agrees to provide Proposify with an e-mail address to which Proposify may provide Partner with any relevant notifications or communications, including billing notifications, notices of promotions, invitations to events, and any other matters regarding the administration of the Partner Program. Partner agrees to notify Proposify of any changes to this e-mail address, or any other contact information. Partner may provide notifications or communications to Proposify via e-mail at firstname.lastname@example.org.
- Buying/creating Ads and coupons. Partner shall not purchase any advertisements in English in the United States, United Kingdom, Ireland, Australia, New Zealand, or Canada (the “Prohibited Countries”), unless Partner has obtained Proposify’s prior written consent. With respect to the Prohibited Countries, Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trade-marks or domain names that use the Marks, or the names or trade-marks of any entity related to Proposify, or any variations or misspellings thereof that may be deceptively or confusingly similar thereto. Partner may purchase advertisements in languages other than English, or advertisements in a country that is not a Prohibited Country; however, Proposify reserves the right to prohibit any such advertisements at any time for any reason, in its sole discretion. Partner shall not create coupons or discounts on behalf of Proposify unless Partner has obtained Proposify’s prior written consent.
Channel Partner Program Module Addendum
This Channel Partner Program Module Addendum is issued under and is subject to the Proposify Partner Agreement (the “Agreement”), between Proposify and Channel Partner and forms an integral part of the Agreement.
Unless otherwise defined herein, all capitalized terms in this Channel Partner Program Module Addendum shall have the meanings set forth in the Agreement. Unless otherwise specified herein, any reference herein to a Section refers to the specified Section of this Program Module Addendum.
- Program Requirements. Channel Partner must sign the agreement in order to participate in the Channel Partner Program.
- Benefits. Proposify may provide the following Benefits to Channel Partner during the Term: materials and other marketing tools related to the Solutions and Technical Services.
- Channel Partner Commission. Subject to the terms and conditions of this Channel Partner Program Module Addendum, Channel Partner shall be entitled to a one-time commission of 30% of the first contract years revenue of Qualified Sales (as defined below) of Commissionable Items (as defined below). Channel Partner shall be responsible for remitting all applicable taxes and levies for which Channel Partner may be liable at law in respect of any payments to it from Proposify. To the extent that Proposify is required by any applicable law or order to withhold any sum from a payment, Proposify will be entitled to do so.
- Qualified Sale. A “Qualified Sale” means a sale by Channel Partner to any new Proposify customer generated by Channel Partner through a valid lead: (i) who pays in full or in part (as instalments) for a Commissionable Item; (ii) who does not cancel the subscription for such Commissionable Item for a minimum of sixty (60) days from the date of the initial purchase of the Commissionable Item; and (iii) to which Channel Partner was assigned as last referring Channel Partner
- . For clarity, a sale by Channel Partner to an existing Proposify customer shall not be a Qualified Sale.
- Renewal Sales. A “Renewal Sale” occurs when a customer to whom a Qualified Sale was made by Channel Partner renews their subscription for a Commissionable Item.
- Commissionable Items. A “Commissionable Item” means subscription to a service plan for the Solutions (currently comprised only of Venti Plans) (the “Service Plan”) by a customer. For clarity, each Service Plan purchased by the same customer within the first thirty (30) days of the customer’s first Service Plan purchase shall each be considered a Commissionable Item. Commissionable Items do NOT include: (i) extra users or add-on products and services; (ii) any amounts refunded to customers; or (iii) any amounts paid by customers using coupons or coupon codes, as applicable.
- Commission Payment. Within forty-five (45) days following the end of each fiscal quarter, Proposify will pay to you any Commission that you become eligible for in accordance with Section 2(a) above. Commission will be paid to Channel Partner through PayPal (or a similar third party payment tool) (the “Payment Tool”), and Channel Partner agrees to comply with any and all terms and conditions and policies of the Payment Tool. Channel Partner shall be responsible for any additional fees associated with creation and maintenance of an account with the Payment Tool, or accepting Commission payments through the Payment Tool. We will determine the currency in which we pay the Commission, as well as the applicable conversion rate. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
- Channel Partner will not be entitled to Commission with respect to a Commissionable Item if: (i) an amount paid for a Commissionable Item is refunded back to a customer; or (ii) a customer cancels the Venti subscription for a Commissionable Item before sixty (60) days have elapsed from the date of the initial purchase of the Commissionable Item, (iii) a customer cancels the Venti subscription, and downgrades to a Grande, or Tall plan, any such amounts already paid to Channel Partner shall be repayable to Proposify within fourteen (14) days upon receipt of an invoice from Proposify for the same.
- In the event a Commission is paid to Channel Partner in error, Proposify shall notify Channel Partner, and any such amounts with respect to such error shall be repayable to Proposify within fourteen (14) days upon receipt of an invoice from Proposify for the same.
- Proposify reserves the right to withhold or reverse Commissions if Channel Partner is in breach of the Agreement, including this Channel Partner Program Module Addendum, or if the Channel Partner has engaged in any fraudulent activity including, but not limited to, cookie stuffing, cloaking, or forcing pop-ups.
- Proposify shall have the sole right and responsibility for processing all orders placed by a customer, and Channel Partner acknowledges that all agreements relating to sales of Solutions to a customer shall be between Proposify and the customer.
- Cookie and Lead Registration.
- Proposify reserves the right to determine, in its sole discretion, whether a lead is considered valid. A “lead” refers to an individual or entity who/which has provided contact information to Channel Partner and has the potential to become a customer. Proposify may determine that a lead is invalid, for any reason, including, but not limited to, if the lead is considered to be a pre-existing customer of Proposify.
- If a lead is determined to be valid by Proposify, in its sole discretion, Channel Partner shall only be entitled to a Commission if Channel Partner refers leads through their unique tracking link or if leads are registered through the Channel Partner section of Proposify’s website.
- When a lead is referred through Channel Partner’s unique tracking link, the Channel Partner will be set as latest referring Channel Partner and cookies will be set to expire after 120 days, after which time Channel Partner’s latest referring Channel Partner status will expire.
- When a lead is registered through the Channel Partner section of Proposify’s website, Channel Partner will be set as latest referring partner for 120 days, after which time Channel Partner’s latest referring Channel Partner status will expire.
- Channel Partner may re-register leads in order to avoid expiration. Proposify shall not pay any Commission to Channel Partner for leads that have expired.
- Once lead information is received by Proposify through Proposify’s database, Proposify reserves the right to elect to engage with the lead directly, regardless of whether or not the lead is valid. If a lead is not valid then we may choose to maintain it in our database and we may choose to engage with such lead. Any engagement between Proposify and a lead will be at Proposify’s discretion.
- If, at the time Channel Partner registers a lead (either through the lead registration process or through a unique tracking link), the lead already exists in Proposify’s database, the most recent lead registration or unique tracking link will assign the Channel Partner associated with such lead registration or unique tracking link as the latest referring Channel Partner for a period up to 120 days after which time the latest referring Channel Partner status expires.
- Channel Partner is not eligible for assignment as latest referring Channel Partner on any sale for which Channel Partner uses its own credit card to make a purchase from Proposify.
- Any Channel Partner may request an audit of the latest referring Channel Partner up to ninety (90) days after the date of a Qualified Sale. If an audit reveals an error with respect to the latest referring Channel Partner, Proposify reserves the right to correct the error as it deems appropriate.
- Program Requirements.
- Channel Partner must successfully complete any training as required by Proposify.
- Channel Partner much register 2 Venti leads in one calendar year that convert to a paid account