PartnerCentric Terms & Conditions.

Acceptance

These Terms & Conditions are entered into by and between the party identified on an applicable Order Form (“you”) and PartnerCentric, Inc. (“PartnerCentric”), together with any Order Form that expressly incorporates these Terms by reference (collectively, these “Terms”). Please read these Terms carefully before signing an Order Form, as they govern PartnerCentric’s provision of services to you.

PartnerCentric Services

PartnerCentric will manage your affiliate marketing program (the “Program”), providing you the services (the “Services”) set forth in one or more “Order Form(s).” By signing an Order Form, you appoint PartnerCentric as your limited agent and, by accepting such Order Form, PartnerCentric thereby accepts such appointment, solely for the purpose of performing the Services. For clarity, the scope of PartnerCentric’s authority as your agent will be strictly limited to managing the Program.

Your Obligations

You agree to: (1) provide copies of or access to your information, documents, samples, products, or other material (collectively, “Client Materials”) as PartnerCentric may reasonably request, and ensure such materials are complete and accurate in all respects. You will remain, the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including all trade secrets, trademarks, domain names, original works of authorship and related copyrights; (2) respond promptly to any PartnerCentric request to provide direction, information, approvals, authorizations, or other actions reasonably necessary for PartnerCentric to perform the Services. You acknowledge that failure to comply with your obligations in these Terms may adversely impact performance of the Program; (3) use PartnerCentric as your sole and exclusive Program manager; (4) refrain from soliciting any employee of PartnerCentric for employment; and (5) refrain from establishing a Direct Relationship (defined below) with any Affiliate (defined below) in the Program during the Term.

Intellectual Property

PartnerCentric will use certain pre-existing materials consisting of documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by PartnerCentric (“Pre-Existing Materials”). PartnerCentric and its licensors are the exclusive owners of all right, title, and interest in and to the Pre-Existing Materials. By accepting an Order Form, and subject to your strict compliance with these Terms, PartnerCentric thereby grants Client a revocable, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, display, execute, reproduce, distribute, transmit, import, any Pre-Existing Materials solely to the extent reasonably required in connection with your receipt of the Services. All other rights in and to the Pre-Existing Materials are expressly reserved by PartnerCentric.

By signing an Order Form, you thereby grant PartnerCentric a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use your intellectual property solely to the extent necessary to provide the Services to you.

Fees, Payment

You agree to pay all fees set forth in an Order Form (“Fees”) within 30 days following receipt of an invoice from PartnerCentric. All Fees include all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind. You will be solely responsible for the payment of any sales and use taxes relating to your goods and services. If you have elected to participate in a Performance Incentive program, you will billed in arrears until such time as PartnerCentric has sufficient data to accurately project the Program’s performance (as determined in PartnerCentric’s reasonable discretion), at which point you will be billed monthly in advance, based on PartnerCentric’s projections.

The Fees are subject to modification by PartnerCentric upon 30 days’ notice. Any such modification will be based on PartnerCentric’s good faith assessment of external market factors (e.g., inflation, labor costs, service costs, etc.). In no event will such modification exceed 10%.

Representations, Warranties

Each party represents and warrants to the other party that: (1) It has the full right, power and authority to enter into these Terms, grant the rights and licenses herein, and perform the acts required hereunder; (2) It will at all times be in compliance with all applicable laws, rules, and regulations; and (3) It will not violate the intellectual property or other legal rights of any third party, or violate the terms and conditions of any agreement to which it is subject. PartnerCentric further represents and warrants that it will perform the Services in a professional and workmanlike manner.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES ABOVE, PARTNERCENTRIC MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY PARTNERCENTRIC, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION (REPRESENTATIONS, WARRANTIES). PARTNERCENTRIC EXPRESSLY DISCLAIMS ANY LIABILITY RELATING TO THE CONDUCT, PERFORMANCE, ACTS, OR OMISSIONS OF AFFILIATES USED IN PROVISION OF THE SERVICES. PARTNERCENTRIC FURTHER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE PERFORMANCE OF THE PROGRAM(S), REGARDLESS OF ANY ESTIMATES OR PROJECTIONS MADE TO CLIENT (ORALLY OR IN WRITING) BY PARTNERCENTRIC.

Indemnity

Each party agrees to indemnify, defend, and hold harmless the other party and its officers, directors, shareholders, managers, employees, agents, successors, and assigns against any and all claims, losses, liabilities, damages, penalties, fines, forfeitures, judgments, and any other fees, costs, and expenses, including attorneys’ fees, and related costs and expenses, resulting from a breach of these Terms by the indemnifying party, except to the extent resulting from the negligence or misconduct of the other party.

Liability Cap

PARTNERCENTRIC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE LESSER OF: (1) THE TOTAL AMOUNTS PAID TO PARTNERCENTRIC PURSUANT TO THESE TERMS IN THE 6-MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (2) $10,000.00.

Confidentiality

All Confidential Information may be used solely for purposes of providing or receiving the Services. “Confidential Information” means all information disclosed or made available by one party to the other party that is identified as proprietary or confidential at the time of disclosure or that the receiving party should reasonably understand to be confidential, including financial information, business and marketing plans, operations and systems, intellectual property, data, databases, information concerning sales reps, employees, customers, and vendors, or technology, discoveries, inventions, improvements, research, development, know-how, designs, product specifications, software, and business processes. Confidential Information does not include any information that was in the public domain at the time of disclosure or became publicly available after disclosure without breach of this agreement, was lawfully received from a third party without confidentiality restrictions, was known to the receiving party without confidentiality restrictions before it was disclosed under these Terms, or is independently developed by the receiving party without use of or reference to the Confidential Information.

Direct Relationship Fee

PartnerCentric expends considerable resources developing and maintaining relationships with its website publishers (“Affiliates”). Accordingly, you agree that, during the Term, you will not engage, contract with, or work with any Affiliate in the Program (a “Direct Relationship”), unless pursuant to a written agreement with PartnerCentric. If you establish a direct relationship with an Affiliate during the Term, without PartnerCentric’s written agreement, you will pay a “Direct Relationship Fee” as follows: (i) if your fee structure under these Terms consists solely of Fixed Fees, the Direct Relationship Fee will be $5000; (ii) if your fee structure under these Terms consists of a Performance Incentive Fee, the Direct Relationship Fee will be the greater of $5000, or six month’s of projected Performance Incentive Fee. For clarity, you acknowledge and agree that the performance of the Program(s) may be adversely impacted in the event that you establish a direct relationship with an Affiliate.

Term, Termination

The term hereunder commences on the effective date and continues until the contract end date, as set forth in an applicable Order Form, or until otherwise terminated in accordance with these Terms. Either party may terminate these Terms, by sending an email to the email address of the contact listed on an applicable Order Form if the other party: (1) materially breaches the Terms and Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), the Defaulting Party does not cure such breach within 10 days after receipt of written notice of such breach; (2) becomes insolvent or is generally unable to pay its debts as they become due; (3) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (4) makes or seeks to make a general assignment for the benefit of its creditors; (5) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (6) is dissolved or liquidated. Neither party may terminate these Terms for convenience or without cause.

Miscellaneous

These Terms, and any applicable Order Form(s), constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any provision that, to give proper effect to its intent, should survive expiration or termination, will survive expiration or earlier termination of these Terms. If any term or provision herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision herein or invalidate or render unenforceable such term or provision in any other jurisdiction. No amendment to or modification of the Terms is effective unless it is in writing and signed by each party or in an accepted Order Form. No waiver by either party of any of the provisions hereof will be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. All rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Neither party may assign, transfer, or delegate any of its rights or obligations under these Terms, without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign these Terms to a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of substantially all of the party’s assets. No assignment will relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. These Terms will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. These Terms solely benefit the parties and their respective permitted successors and assigns, and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. These Terms and all related documents, and all matters arising out of or relating to these Terms are governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Neither party will commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms in any forum other than courts located in Nassau County, New York. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in Terms creates any agency relationship beyond the narrow scope set forth herein, or any joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. PartnerCentric is an independent contractor pursuant to these Terms.

LAST UPDATED: 08/23/2022