By applying for the Emma Referral Partner Program (the “Program”), you are agreeing to be bound by this Emma Referral Partner Program Agreement (the “Partner Program Agreement”). This Partner Program Agreement is entered into by you on behalf of your company (“Referral Partner”) and (ii) Emma, Inc. ( “Company”). By completing a program registration or application process, you acknowledge that Referral Partner has reviewed and accepts all of the terms of this Partner Program Agreement and that you are duly authorized to act on behalf of Referral Partner to bind it to this Partner Program Agreement.
The Parties agree as follows:
Definitions. In addition to terms defined elsewhere in this Partner Program Agreement, the following definitions will apply to capitalized words in this Partner Program Agreement:
“Affiliate” of a Party means any entity that directly or indirectly controls, is controlled by, or is under common control of that Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
“Company Property” means Products and Materials.
“Confidential Information” has the meaning set forth in Section 5.
“Disclosing Party” has the meaning set forth in Section 5.
“Feedback” has the meaning set forth in Section 6.
“Materials” means any of Company’s sales and marketing materials, instructions, directions, and/or documentation (including any trademarks, trade names, service marks and logos included in the foregoing), as modified by Company from time to time.
“Party” refers to either Company or Referral Partner and “Parties” collectively refers to Company and Referral Partner.
“Partner Manager” means the third party company that manages the Program and directed Referral Partner to this Partner Program Agreement.
“Partner Manager Platform” means Payment Manager’s online or app-based dashboard.
“Product” or “Products” means the software as a service product offered by Company.
“Program” has the meaning set forth in the preamble to this Partner Program Agreement.
“Prospect” means new prospective customers that Referral Partner may, from time to time, refer to Company.
“Purchase” means a customer order form for the Products executed during the Referral Period by and between Company and the Sales Qualified Lead with a minimum 12-month contract term.
“Receiving Party” has the meaning set forth in Section 5.
“Sales Qualified Lead” means a prospect for the Product: (i) that is not a current customer or prospect of Company, or a known prospect, partner, or customer thereof, (ii) that provides Company their contact information via Company’s website after being referred to Company from Referral Partner; (ii) that Company, in its sole discretion, determines is a legitimate prospect to purchase the Products and (iv) subject to any additional limitations described on the Partner Manager Platform.
“Referral Fee” means the fee that Referral Partner is eligible to receive subject to Section 4 (Payment of Referral Fees).
“Referral Period” means the six month period after Company’s acceptance of the Sales Qualified Lead in accordance with this Partner Program Agreement.
Referral Program. Company is in the business of offering an email marketing platform to businesses. Referral Partner is in a position to refer prospective customers to Company. This Partner Program Agreement provides the terms and conditions under which Referral Partner may refer Prospects to Company from time to time, on a non-exclusive basis, as part of the Program. Company will pay Referral Partner a Referral Fee as stated on the Partner Manager Platform. Approval and acceptance of any Prospect will be at Company’s sole discretion, and Company may reject any Prospect for any reason or for no reason.
Promotion, Referral Activities. Referral Partner shall use commercially reasonable efforts to promote and market the Products by referring prospective customers to Company. In furtherance of Referral Partner’s efforts to promote Company, Referral Partner may only use Materials that have been provided and/or approved by Company. In its efforts, Referral Partner will use the then-current names for the Products and will not add to, delete from, or modify any Materials provided by Company. Referral Partner represents and warrants that it will accurately represent the Products and will not make any statements or provide any materials or documentation about the Products that are inconsistent with the Materials. Referral Partner understands and agrees that it is not permitted to make any representations or promises regarding Company’s pricing or discounting for the Products. Referral Partner acknowledges and agrees that Company is not bound to any price (or any other term or condition) with respect to the sale of any Products until it has executed the applicable customer agreement and Referral Partner will not represent or imply anything to the contrary to any party.
Payment of Referral Fee. Payments in the Program are handled by the Partner Manager. In order to receive payments under this Partner Program Agreement, Referral Partner must create and maintain an account with Partner Manager on the Partner Manager Platform, which is provided pursuant to terms directly between the Partner Manager and Referral Partner. Referral Partner must keep all information updated and complete within the Partner Manager Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Parties agree that: (a) the data shown in the Partner Manager Platform will govern payments to be made, subject to Company’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final 12 months after Company approves the applicable Sales Qualified Lead. If Prospect is in breach of its Partner Program Agreement with Company, payment will not be made to Referral Partner. For clarity, only Company, and not Referral Partner, is permitted to negotiate any terms, including legal and commercial terms, of any agreements between Prospects and Company. Referral Partner will not be entitled to a Referral Fee with respect to sales to any Prospects that occur after the Referral Period. Notwithstanding any other provision of this Partner Program Agreement, if Referral Partner provides Company with contact information for a Prospect, Company may use such information for the purposes of marketing the Products at any time.
Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms of this Partner Program Agreement as well as components of the business plans, inventions, product plans, design plans, financial plans, computer programs, know-how, customer information, prospective customer information, strategies, marketing plans, technology and technical information, business processes and other similar information. Without limiting the foregoing, Company’s Confidential Information includes the Products and information related to it. Confidential Information does not include information that: (a) is in or enters the public domain without breach of this Partner Program Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (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 Partner Program Agreement; and (iii) 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 Partner Program Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled to do so by law or in connection with other legal proceedings, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party a reasonable opportunity to prevent such disclosure.
Proprietary Information. Referral Partner acknowledges that all rights, title, and interest in and to the Company Property are the exclusive property of Company or its Affiliates, licensors, or suppliers. This Partner Program Agreement does not grant to Referral Partner any rights to use, copy, distribute, reverse engineer, reverse compile or otherwise deal with any Company Property. All rights not expressly granted herein are reserved by Company. In addition, Referral Partner may provide feedback, suggestions, or comments to Company regarding the Company Property (“Feedback”). To the extent any such Feedback is not deemed Company Property, Referral Partner hereby grants to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, process, store, edit, modify, perform, prepare derivative works of, and fully exploit such Feedback in any medium or format, whether now known or later developed. Subject to the terms of this Partner Program Agreement, Company grants to Referral Partner a non-exclusive, non-transferable, revocable right and license, during the term of this Partner Program Agreement, to use and display the Materials solely for the purposes set forth in this Partner Program Agreement. All such use of the Materials shall include trademark and copyright markings as provided by Company and shall be in accordance with the Company’s trademark usage guidelines or other instructions as may be provided in writing by Company from time to time. All goodwill arising from Referral Partner’s use of Materials shall inure to Company. Notwithstanding the foregoing, any such use or proposed use of the Materials shall be presented to Company for written approval not less than ten business days prior to the intended date of use, and any use not expressly approved by Company in writing shall not be deemed approved. Referral Partner will not use, register or take other action with respect to any Materials used anywhere in the world by Company. Other than as expressly and unambiguously provided in this Partner Program Agreement, Referral Partner shall not have any right to use the Materials. Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use Company or Company’s Affiliates’ names, trademarks and/or variations and misspellings thereof.
Privacy Notice. Notwithstanding anything to the contrary in this Partner Program Agreement, the Privacy Notice explains how Company collects, uses and shares information that it processes as part of the Program and in providing the Products. Referral Partner shall publish its own privacy notice or policy that complies with applicable law and takes into account the processing activities it engages in under this Partner Program Agreement.
Social Media Restrictions. When advertising or promoting the Program on Facebook, Twitter, Instagram, YouTube and other social media platforms, Referral Partner (a) may only promote programs and links on Referral Partner’s social media page, (b) shall not post Referral Partner’s links on Company’s Facebook, Twitter, Pinterest, or any other Company social media accounts or pages, and (c) shall not create a social media account that includes the Materials.
Referral Partner Warranties. Referral Partner represents and warrants that: (i) Referral Partner will comply with good and ethical business practices in the performance of this Partner Program Agreement; (ii) Referral Partner has submitted and will submit complete and truthful information in connection with all customer and prospect referrals; (iii) Referral Partner has the right to submit the information submitted via the Partner Manager Platform and will submit all filings and obtain any approvals that may be necessary for Referral Partner to perform its obligations under this Partner Program Agreement, (iv) Referral Partner will commit no act that would reflect unfavorably on Company; (v) Referral Partner is not a party with whom Company is prohibited from doing business under U.S. export regulations and controls; (vi) Referral Partner is legally allowed to enter into this Partner Program Agreement and receive the Referral Fee; (vii) by entering into this Partner Program Agreement, Referral Partner will not be in violation of any other Partner Program Agreement, including but not limited to, an employment agreement; (viii) Referral Partner will not make any bribe, kickback or similar payment in connection with this Partner Program Agreement; and (ix) Referral Partner will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its performance of this Partner Program Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws, the Federal Trade Commission Endorsement Guides, which requires disclosure of communications between advertisers and sponsors, and where applicable, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and the the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.
Warranty Disclaimer. ANY WARRANTIES FOR THE PRODUCTS WILL RUN DIRECTLY FROM COMPANY TO ITS CUSTOMERS. IN NO EVENT WILL REFERRAL PARTNER MAKE ANY REPRESENTATION, GUARANTEE, OR WARRANTY CONCERNING A PRODUCT EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY COMPANY IN WRITING. NEITHER COMPANY NOR ITS SUPPLIERS NOR LICENSORS MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO A PRODUCT OR THE SUBJECT MATTER OF THIS AGREEMENT AND SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE REFERRAL PARTNER, THE Partner Manager, OR THE Partner Manager PLATFORM.
Indemnity. Referral Partner shall defend, indemnify and hold Company and its directors, officers, employees, suppliers, consultants, contractors, and agents harmless from and against any and all actual or threatened third party claims, suits, actions, proceeding, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) against Company arising out of or related to any act, default, misrepresentation or omission (including, without limitation, negligence and breach of this Partner Program Agreement) by the Referral Partner, its agents, employees or representatives, directly or indirectly relating to this Partner Program Agreement, including without limitation, any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
Liability Limitations. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER COMPANY NOR ITS SUPPLIERS NOR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS BY COMPANY TO REFERRAL PARTNER DURING THE PRECEDING TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Termination. This Partner Program Agreement will commence upon the date that Referral Partner joins the Program and will continue until otherwise terminated by one of the Parties pursuant to this section. Notwithstanding the foregoing, Company shall have the right, at any time, to terminate this Partner Program Agreement for convenience upon 10 days’ written notice to Referral Partner. Further, if either Party breaches this Partner Program Agreement, the other Party may terminate this Partner Program Agreement upon 15 days’ written notice unless the breach is cured within the notice period. Upon termination or expiration of this Partner Program Agreement for any reason whatsoever, (i) Referral Partner shall immediately discontinue any use of the Materials and any other name, logo, trademark or service mark of Company, (ii) Referral Partner shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the Parties, (iii) Referral Partner will cease to promote or solicit customers for the Products, (iv) Receiving Party will immediately return to the Disclosing Party, or destroy and certify in writing the destruction of, all Confidential Information and any other information or materials of the Disclosing Party. If Company terminates the Partner Program Agreement, payment obligations of the Partner Program Agreement for Sales Qualified Leads and Purchases shall survive for a period of one month after termination of the Partner Program Agreement; provided that Referral Partner is only entitled to Referral Fees for Sales Qualified Leads or Purchases sent prior to the effective date of termination of the Partner Program Agreement. After termination, Company shall be entitled to use contact information of Prospects (but no other Confidential Information of Referral Partner) to market Products to such Prospects. Neither Party shall be entitled to damages or any compensation on account of termination of this Partner Program Agreement in accordance with its terms. Notwithstanding the foregoing, the right to payments of Referral Fees owed prior to the termination date shall survive termination or expiration of this Partner Program Agreement.
Relationship of Parties. Neither Party will, for any purpose, be deemed to be an agent, employee, representative, owner, or partner of the other Party. Each Party shall be solely responsible for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Partner Program Agreement. During the term of this Partner Program Agreement, should the term “partnership” or “partner” be used to describe the cooperative marketing relationship, each Party agrees to make it clear to third parties that these terms refer only to the spirit of cooperation between the Parties and do not describe or create the legal status of partners or joint venturers. Neither Party has the authority, right or ability to bind or commit the other Party in any way and will not attempt to do so or imply that it may do so.
NON-EXCLUSIVE AGREEMENT. The referral arrangement described in this Partner Program Agreement shall be non-exclusive. Nothing in the Partner Program Agreement shall be intended to prevent or limit the possibility for each of the Parties to enter into a similar engagement with a third party. Nothing in this Partner Program Agreement shall be construed as limiting in any manner Company’s marketing, sales, or distribution activities or its appointment of other referral partners, dealers, distributors, licensees, agents or representatives of any kind.
NOTICES. Notices to Referral Partner will be effective when Company sends them to the email address Referral Partner shares with Company via the Partner Manager Platform. Notices to Company will be effective when delivered to [email protected], with a copy to [email protected].
MISCELLANEOUS. Referral Partner may not assign this Partner Program Agreement nor any right or obligation, by operation or law or otherwise, without the prior written consent of Company and any purported transfer or assignment absent such consent will be void. This Partner Program Agreement may be assigned or transferred by Company without Referral Partner’s consent. Except as otherwise provided herein, this Partner Program Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the Parties. If any provision of this Partner Program Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Partner Program Agreement shall otherwise remain in full force and effect and enforceable. Except as otherwise expressly provided herein, any provision of this Partner Program Agreement may be amended or waived only with the written consent of both Parties. This Partner Program Agreement shall be governed by and construed under the laws of the State of New York without regard to the conflicts of law provisions thereof, and the Parties irrevocably consent to the jurisdiction of the state and federal courts in New York County, New York for the resolution of any disputes or conflicts arising out of or related to this Partner Program Agreement. This Partner Program Agreement is the sole and entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements or discussions between the Parties with respect thereto.
This Partner Program Agreement was last updated on August 24, 2021