1. Non-Exclusivity
This Agreement does not create an exclusive agreement between Partner and Company. Both will have the right to recommend similar products and services of third parties and to work with other parties in connection with the sale, implementation and use of similar services and products of third parties.
Participation in the Company Program has its eligibility requirements that must be met and maintained.
2. Qualified Transactions
2.1. Partner and Provider Rights and Obligations
Company grants Partner, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Gmelius Platform (the “Platform”) to their prospects and customers, and (ii) to provide End Users access to use the Platform in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. At Company discretion, Company will provide limited sales support to Partner, such as occasional participation on a call with a prospect.
2.2. Compliance with Program Policies
Company will comply with the terms and conditions of this Agreement at all times. The Partner Program Policies includes requirements that a Partner must complete in order to qualify for a certain partner tier. 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 the Company may have.
2.3. Other Eligibility Requirements
To be eligible for a Revenue Share, a prospect must be registered, accepted and validated in accordance with the ‘Submission, Acceptance and Validity’ section, detailed below.
2.4. Submission, Acceptance and Validity of Prospects
Partner must register each prospect with the Company using the partner tools the Company provides through our Partner Portal prior to the close of a Qualified Transaction. To register a prospect, the Partner must provide at least the following information about each prospect: contact first name, contact last name, email, team size, URL and company name. Company generally will accept a prospect who, in its reasonable determination: (i) is a new potential customer; (ii) is not, at the time of submission or sixty (60) days prior, one of Company’s pre-existing customers, involved in an active sales process, or Partner’s Affiliate; (iii) is a Legitimate Prospect whose contact information was legally obtained.
Notwithstanding the foregoing, the Company may choose not to accept a prospect, in their reasonable discretion. Company may choose to do so at the time of a registration submission, or may deregister and reject a prospect if Company determines a prospect does not meet the criteria outlined above. at any point after submission, even in cases where it was initially accepted. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated. Once the valid prospect is ready to purchase, the Company will, at its own discretion, accept an order and provision the Subscription Service for the End User in order to complete a Qualified Transaction.
2.5. Engagement with Prospects and End Users
Company may engage with a prospect, lead or End User directly (i) to complete the subscription process, (ii) to fulfill or enforce its obligations under an agreement with such prospect, (iv) to provide support, (v) to conduct its standard marketing and sales activities with prospects. If and when the Company does engage, Company may choose how to engage with each prospect and may request that the Partner collaborates with Company in the engagement. Upon Company’s request, Partner shall provide the Company with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then the Company may choose to maintain it in its database and may choose to engage with such a prospect. If requested, Partner will facilitate Company’s participation on calls with various End User(s). The Company may request to participate on these calls in an effort to help to ensure the quality of its service delivery and for the purposes of managing the Program.
2.6. Pricing
Company shall be solely responsible for pricing analysis and pricing decisions regarding End User’s use of the Platform. Deviations from Company’s published pricing shall be at the sole discretion of Company. Partner is prohibited from presenting End User(s) with such deviated proposals without the prior written consent of the Company.
3. Revenue Share and Payment
3.1. Requirements for Payment; Forfeiture
To receive payment under this Agreement, Partner must have: (i) agreed to the terms of this Agreement (generally completed through the partner tools tab in your portal), fulfilled all eligibility requirements to be a Partner under this Agreement and are in compliance with this Agreement; (ii) provided us with all of Partner account information, including bank information.
3.2. Revenue Share Payment
Upon Company’s determination of a Qualified Transaction, Company will remit the applicable Revenue Share Payment to Partner within 30 days (net-30) of collecting the End User’s subscription dues.
All payments by the Company shall be made by PayPal or Stripe and it is the Partner’s responsibility to ensure that you have provided us with the most up-to-date and correct information to facilitate the transfer. Company will not issue payment by any other means. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) if any of the requirements set forth in this section, remain outstanding for six (6) months immediately following the close of a Qualified Transaction, or (ii) Company has attempted to pay to the Partner a Revenue Share for a Qualified Transaction and the attempt was unsuccessful, to no fault of its own; and (iii) Company reached out to either the Primary Contact, Billing Contact or Decision Maker Contact on Partner account to obtain the necessary information and have not received a response; and (iv) six (6) months has passed since the date of the initial, failed transfer described herein, then the Partner’s right to receive Revenue Share arising from any and all Qualified Transactions(s) with the associated End User will be forever forfeited (each, a “Forfeited Transaction”). Company shall have no obligation to pay a Revenue Share associated with a Forfeited Transaction.
Shall the Partner complies with all of the requirements in this Section then is eligible to receive Revenue Share on Qualified Transactions, as long as these Qualified Transactions do not involve the same End User associated with a Forfeited Transaction.
3.3 Taxes
Revenue share is paid in applicable currency and is subject to all applicable governmental regulations and rulings, including withholding any commissions generated by the Company's payments system provider. Partner is solely responsible for payment of any taxes imposed or incurred in connection with any Revenue Share.
4. Training and Support
4.1. Training and Support
Company shall make available to you, without charge, various webinars and other resources made available as part of our Program.
4.2. End User Training and Support
Company will provide user training purchased by an End User as set forth in a mutually agreed upon order between the End User and Company. Company may communicate directly with any End User about use of the Platform and any support issues experienced.
4.3. Gmelius Demo Account
If the Company makes a Gmelius Demo Account available to the Partner, then the Partner shall use the Demo Account solely for his own education, demonstration and evaluation purposes. Partner is not permitted to use it for any other purpose. Partner shall not lease, distribute, license, sell or otherwise commercially exploit the Gmelius Demo Account. Partner shall not use any End User data or Customer Data (as defined in the Customer Terms of Service) with the Gmelius Demo Account. Partner can only use his own data. The Customer Terms of Service apply to Partner use of the Gmelius Demo Account. Company reserves the right to suspend, modify, or discontinue any or all part of the Gmelius Demo Account at any time without prior notice to the Partner. In the event of a conflict between the terms that apply to the Gmelius Demo Account as specified in this Agreement and the Customer Terms of Service, the terms of this Agreement shall control.
5. Marketing and Promotion
5.1. Marketing Materials
From time to time, Company may supply Partner with marketing materials via its Partner Portal for the sole purpose of promoting Company and the Platform, and performing the Referral Services (“Marketing Collateral”). The marketing materials may be updated, replaced or removed at any time inside the Partner Portal, we will let you know via an in-app notification in your portal or by email. Partner will comply with any request by Company to cease the use of any particular Marketing Collateral (“Outdated Collateral”) and Partner will, promptly following such request, destroy or return to Company the Outdated Collateral.
Partner agrees and acknowledges that Company owns the all right, title, and interest in the Marketing Collateral and the Outdated Collateral and that other than as specified in this Agreement, Partner will have no right to use the Company Marks (as defined below) or any photographs, graphics, artwork, text or other Company-related content, whether or not provided by Company, without first obtaining Company’s written consent.
Partner also agrees and acknowledges that it will not make any representations relating to the Platform, or any other services provided by Company or its parent, subsidiary, or affiliate companies other than those representations expressly contained in the Marketing Collateral, on the Company website, or as otherwise permitted in writing by Company. In addition, Partner will not, and will ensure that its officers, directors, principals, agents, affiliates, employees, and representatives (“Partner Entities”) do not disparage the Company or the Platform in any manner, including to End Users.
5.2. Advertising
Partner further represent and warrant that it will (a) accurately provide in the Partner Portal all websites and domains you own where you intend to use Referral Links to generate Proposed Leads; it will (b) not purchase ads that direct to its site(s) or through an Referral Link that could be considered as competing with the Company’s own advertising, including, but not limited to, the Company’s branded keywords and retargeting; (c) it will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (d) it will not attempt to mask the referring URL information; (e) it will not use your own Referral Link to purchase Company services for itself.
5.3. Domain Registration
Partner may not purchase nor own any domain containing the Company’s trademark. Domains containing the trademark may be purchased on behalf of the Partner by the Company and routed to the Partner’s web servers if necessary. Upon termination of the agreement, Company will provide a temporary 301 redirect of the domain after which Company will retain all IP related to the domain.
5.4. Promotions
While Company will not regularly have promotions offering a discount, when discounts are offered by Company directly, these promotions are not available to activations made through the Partner, unless authorized by Company.
6. Guaranteed Response Time
When the Partner raises or escalates an issue on behalf of End User with Company, Company promises to respond in a timely fashion.
The response time measures how long it takes Company to respond to a support request addressed to [email protected]. Company is deemed to have responded when it has replied to the initial request. This may be in the form of email or telephone/video call to either provide a solution or request further information. Response times apply during standard working hours, from Monday to Friday, 9 am to 6 pm CET only. Subject to set limitations, Company promises to respond to support requests within twenty-four (24) hours.
7. Intellectual Property
a. Subject to the terms and conditions of this Agreement, solely during the term of this Agreement, Company hereby grants to Partner a limited, non-exclusive, non-transferable, royalty-free, fully paid-up license, with no right to sublicense, to use the names, logos, insignias, trademarks and any other intellectual property rights (collectively, the “Company Marks”), solely in connection with the Referral Services.
b. Partner will obtain the prior written approval of Company for all materials that use the Company Marks by submitting such material to an appropriate Company representative for approval. Partner will, as reasonably requested by Company, supply samples of all materials bearing the Company Marks and previously approved by Company in the preceding sentence.
c. All advertising and marketing using the Company Marks in any medium will be conducted in a manner that does not adversely affect the goodwill associated with the Company Marks, or disparage, or malign, or infringe any rights of Company or the Company Products. All advertising and marketing using the Company Marks will comply in all material respects with all applicable laws and regulations governing advertising.
d. Partner acknowledges and agrees that (i) neither Partner nor any of its Partner Entities shall contest or challenge Company’s rights in the Company Marks at any time, (ii) nothing herein shall restrict the use of the Company Marks by Company and its affiliates, assignees or licensees (other than Partner and its Partner Entities) at any time or in any manner, and (iii) all goodwill arising from the use of the Company Marks by Partner and its Partner Entities shall inure to the benefit of Company.
7.1. Platform Restrictions
All right, title, and interest in and to the Platform and any copyright, trademark, trade secret, patent, or other proprietary rights (collectively “Intellectual Property Rights”) in the Platform shall be owned by the Company. Partner has no rights to use the Platform, and has no rights to copy, modify, change, decompile, disassemble, reverse compile or reverse engineer the Platform. Partner agrees that any suggestions, recommendations, ideas, work product or concepts provided by Partner in connection with this Agreement, and any Intellectual Property Rights associated with the same shall be owned by the Company, without any obligation by the Company to compensate Partner for the same. Partner agrees to execute any and all documents necessary to perfect Company’s ownership of the Intellectual Property Rights as set forth in this Section 4.1.
8. Non-Solicitation
Partner agrees, for itself and its Partner Entities, that during the term of this Agreement and for a period of one (1) year thereafter, and without the prior written consent of Company, it shall not knowingly or willingly encourage, induce or offer to cause any customer of Company to terminate its use of the Platform or any other products or services provided by Company or its parent, subsidiary, or affiliate companies, whether or not such products or services are provided under the terms of this Agreement.
This Agreement shall automatically terminate in the event that the Partner has not submitted a Proposed Lead for twelve (12) consecutive months. Either party may terminate this Agreement upon written notice to the other at any time, for any reason or no reason. Unless the termination is for breach, it will not affect Company’s obligation to pay Referral Fees in connection with Accepted Leads that were accepted prior to the termination date.
9. Term and Termination
9.1. Term
This Agreement will apply for as long as the Partner participates in the Program and fulfills all the participation requirements under the Program, until terminated.
9.2. Termination Without Cause
Both Partner and Company may terminate this Agreement on thirty (30) days written notice to the other party.
9.3. Termination for Agreement Changes
If the Company updates or replaces the terms of this Agreement, the Partner may terminate this Agreement on five (5) days written notice to Company, provided that a written notice is sent within ten (10) days after Company has updated you with a notice of the change.
9.4. Termination for Cause
Company may terminate this Agreement and/or suspend Partner or the End User’s access to the Platform: (i) upon thirty (30) days’ notice of a material breach if such breach remains uncured at the expiration of such period, (ii) automatically, within thirty (30) of Partner failing to meet the Program requirements applicable; (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 the End User violates the Customer Terms of Service, applicable local, or foreign laws or regulations, (v) immediately, if Partner breaches the Company’s confidentiality obligations under this Agreement or infringe or misappropriate Gmelius’s intellectual property rights, (vi) immediately, if Company determines that the Partner has been acting, or have acted, in a way that has or may negatively reflect on or affect the Company and its customers.
9.5. Effects of Expiration/Termination
Unless the termination is for breach, it will not affect Company’s obligation to pay Referral Fees in connection with Accepted Leads that were accepted prior to the termination date.
10. Confidentiality
Partner agrees, for itself and its Partner Entities, to keep confidential:
i. the terms of this Agreement and any other business or transactional information or data provided or disclosed in connection with this Agreement or the Referral Services;
ii. any information designated by Company as “confidential”, whether expressed by Company in writing or verbally;
iii. and any information that the Partner should reasonably expect to be confidential under the circumstances surrounding disclosure (collectively, “Confidential Information”). Notwithstanding the foregoing, Partner may disclose Confidential Information to its employees on a need-to-know basis who are advised of the confidential nature of the Confidential Information and who agree to treat Confidential Information in accordance with the terms hereof. Partner may disclose Confidential Information to other Partner Entities only if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in this Agreement. Company’s Confidential Information is confidential between Company and Partner and not known to the general public outside of this Agreement. Any breach of this Section 4 by Partner or a Partner Entity will be considered a material breach of this Agreement and will result in irreparable and continuing damage to the Company for which there is no adequate remedy at law. In the event of such a breach or threatened breach, Company will have the right to injunctive relief and any such other relief as may be proper (including monetary damages, if appropriate). Without limiting the foregoing, the Partner agrees that it will not issue any press release or other public statement relating to its relationship with Company or this Agreement without the express prior written consent of Company. At any time upon the written request of Company, promptly following such request, the Partner will destroy or return to Company all Confidential Information. In the event that Partner becomes legally compelled (by deposition, subpoena, or similar process) to disclose any of the Confidential Information, it shall provide written notice to Company promptly after such request and prior to responding so that Company may seek a protective order or other appropriate remedies (and Partner agrees to cooperate with Company in connection with seeking such order or other remedies). In the event that such protective order or other remedy is not obtained, Partner agrees to furnish only that portion of the Confidential Information which it is advised by outside counsel is legally required and to exercise reasonable best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
11. Representations and Warranties
a. Each Party represents and warrants to the other Party as follows: (i) such Party has the full corporate power and authority and the legal right to enter into this Agreement and to perform the obligations required of it under this Agreement and (ii) such Party is not under any contractual or other obligation, whether written or otherwise, to any third person that would be breached by or prevent such Party’s performance of its obligations under or compliance with any or all of the terms and conditions of this Agreement.
b. Partner further represents and warrants to Company that it will perform the Referral Services (i) consistently with the terms of this Agreement and at all times in compliance with applicable law and regulations and (ii) in a professional, competent and workmanlike manner in accordance with prevailing industry standards.
c. Partner will not make any promise, representation, guarantee or warranty to any End User or to any other party, on behalf of Company or otherwise attributed to Company, regarding the Platform or any other products or services provided by Company or its parent, subsidiary, or affiliate companies, whether or not such products or services are provided under the terms of this Agreement
12. Relationship of the Parties
Partner is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Partner and Company for any purpose. Partner has no authority (and shall not hold itself out as having authority) to bind Company, and Partner shall not make any agreements or representations on Company's behalf without Company's prior written consent.
Without limiting the above, Partner will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by Company to its employees, and Company will not be responsible for withholding or paying any income, payroll, social security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker's compensation insurance on Partner 's behalf. Partner shall be responsible for, and shall indemnify for, from and against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Partner in connection with the performance of Partner 's obligations hereunder shall be Partner's employees or contractors and Partner shall be fully responsible for them and indemnify Company against any claims made by or on behalf of any such employees or contractors.
13. General
13.1. Reserved Rights and General Disclaimer
Company reserves the right: (i) to solicit, contact, and engage any business client, whether or not referred by you and with no obligation to you whatsoever, so long as such business client does not constitute a Lead; and (ii) to engage with other client referral lead providers on a nonexclusive basis. To the maximum extent permitted by applicable law, Company reserves the right to change or cancel this program at any time, at its sole discretion. Participants agree to abide by these rules and by the decisions of the Company, which are final, binding, and non-appealable, on all matters. Company is not responsible for lost, misdirected, or delayed referrals.
13.2. Disclaimer of Warranties; Limitation of Liability
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR, IN THIS AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT TO REFERRAL PARTNERS OR ITS LEADS AND EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING: (I) THE AMOUNT OF REVENUE THAT REFERRAL PARTNER MAY RECEIVE UNDER OR IN CONNECTION WITH THIS AGREEMENT; AND (II) ANY ECONOMIC OR OTHER BENEFIT THAT REFERRAL PARTNER MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. COMPANY WILL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3. Notices
Company commits to notify Partner for Platform subscription renewals of Accepted End Users that have resulted in a WIN, delivered by electronic mail sixty (60) days prior to the renewal date.
All other notices, requests, consents, claims, demands, waivers, summons, and other legal processes, and other similar types of communications hereunder (each, a "Notice") must be in writing and addressed to the relevant party at the address set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 11.3). All Notices must be delivered by personal delivery, internationally recognized courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or electronic mail (return receipt requested). A Notice is effective only (i) upon delivery and (ii) if the party giving the Notice has complied with the requirements of this Section 11.3.
13.4. Governing Law
This Agreement shall be governed by Swiss law. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be submitted to the jurisdiction of the court at the location of the Company’s registered office, the appeal before the Swiss Supreme Court being reserved.
13. 5. Severability
If any provision of this Agreement is held by a court to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect its intentions, with all other provisions remaining in full force and effect.
13.6. Amendments; Waivers
This Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived or supplemented by an agreement in writing signed by each party. A party’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless agreed to by that party in writing.
13.7. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
13.8. Assignment
Partner may not assign any rights or obligations under this Agreement without the Company's prior written consent. This Agreement will inure to the benefit of and be binding upon each of the parties and each of their respective permitted successors and permitted assigns.
13.9. Entire Agreement
This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.10. Survival
All terms of this Agreement which by their nature extend beyond its expiration or termination, including without limitation, the Proprietary Rights provisions hereunder, shall survive the termination of this Agreement.
