Partner Program Agreement
Last Modified: July 6, 2020
PLEASE READ THIS PARTNER PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “partner”) and us (“Scotfy”). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.
Partner Program Agreement applies to your participation in our Partner Program. These terms are so important that we cannot have you participate in our Partner Program unless you agree to them.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Partner Program changes, ends, or becomes part of an existing program. If we update or replace the terms we will let you know by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Qalyptus Partner Program Agreement and all materials referred or linked to in here.
“Capacity Limit” means the aggregate number of prospect domains that you are permitted to have registered at any given time according to the Program Policies that apply to you.
“Cross Sell” means a limited Qalyptus partner program which, at our discretion in each individual instance, allows a Partner to be eligible for Revenue Share on a sale of a complementary Subscription Service to an existing End User, provided other relevant eligibility and acceptance and participation criteria stated in Sections 3 and 4 of this Agreement have been fulfilled. Cross Sell is only available in situations where an End User contracts directly with us for provision of the Qalyptus Products in all original and ensuing transactions. Additionally, Cross Sell is only available in proposed Qualified Transactions where all involved parties — namely existing Partner(s), new potential Partner, and End User — are eligible to participate, as determined by us in our sole discretion. We will notify Partner directly when and if they become eligible for Cross Sell. Cross Sell may not be available in all countries or regions, and we reserve the right to change, suspend, limit, or cancel the program, in whole or in part, at any time by notifying the affected Partner through email, in-app or by any other reasonable form of notice.
“Customer Terms of Service” means those terms and conditions located at https://files.qalyptus.com/eual/qalyptus_eula_en.pdf.
“End User” means the authorized actual user of the Qalyptus Products or the party on whose behalf you use the Qalyptus Products.
“Qalyptus Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into Qalyptus Products and all of our other services.
“Qalyptus Products” means both the Subscription Service and Other Products.
“Legitimate Prospect” means a contact, tied to a domain and/or business entity, with which you have established a demonstrable business relationship and who you are actively approaching and are engaging with in a pursuit of a sale.
“List Price” means the standard pricing for the Subscription Service as listed at https://www.qalyptus.com/pricing. We reserve the right to change such pricing at any time. However, we will not apply any price change to End Users who purchase Subscription Service within ten (10) days after such price change.
“Net Revenue” means the initial fee, any renewal fees, and any upgrade or downgrade fees that are actually paid to us by an End User or by Partner for an End User for the Subscription Service. Net Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds not due to a contract breach by Qalyptus, and (ii) shall exclude any implementation, customization, training, consulting or other professional services, or fees for third-party products or services.
“Other Products” means those products and services that we offer, which are not included in the Subscription Service.
“Qualified Transactions” means those transactions that are eligible for a Revenue Share pursuant to the “Qualified Transactions” section of this Agreement.
“Program Policies” means the policies applicable to you which we have published at https://www.qalyptus.com/partners/program-policies.
“Partner Revenue Share” means an amount equal to a percent (20% or 25% or 30%) of Net Revenue paid to us by an End User or Partner for a Qualified Transaction.
“Partner Eligibility Requirements” mean you have completed an application to become a Partner and you have received a notification within thirty (30) days of submission of your application stating that you have been accepted to participate in the Program as a Partner.
“Subscription Service” means our reporting software (Qalyptus Desktop and Qalyptus Server) that is subscribed to, and developed, operated, and maintained by us, accessible via https://www.qalyptus.com or another designated URL, and any add-on products (extensions) that are included with such software, but excluding all Other Products. For avoidance of doubt, add-on products alone will not be considered Subscription Services.
“We”, “us”, “our”, and “Qalyptus” means Scotfy Sas.
“You” and “Partner” means the party, other than Qalyptus, entering into this Agreement and participating in the Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
3. Qualified Transactions
a. Partner Rights and Obligations. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Qalyptus Products to your prospects and customers, and (ii) to provide End Users access to use the Qalyptus Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a prospect.
b. Compliance with Program Policies. You will comply with the terms and conditions of this Agreement at all times. Partners must meet the Active Engagement (defined in section 3.g., below) requirement for all Qualified Transactions. 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 we may have.
c. Other Eligibility Requirements. To be eligible for a Revenue Share, a prospect must be registered, accepted and valid in accordance with the ‘Submission, Acceptance and Validity’ section. You are not eligible to receive a Revenue Share or any other compensation from us based on transactions for Other Products, based on transactions with a Qalyptus Lead (as defined below) or if: (i) such compensation is disallowed or limited by national, state or local law or regulation in France or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us or our Affiliates; (iii) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us with respect to a given transaction; (iv) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you; (v) the End User participates in this Program, or (vi) for any transactions with End User that precede in time to you becoming a Partner in this Program under this Agreement. In competitive situations with other Partners, we may elect to enable Cross Sell (in situations where the Subscription Service is complementary and Cross Sell is otherwise available) or to provide the Revenue Share to the partner that actually secures the business with the End User, which may result in you being ineligible for Revenue Share, regardless of whether or not you registered the prospect.
We may terminate this Agreement and/or discontinue Revenue Share payment(s) should you fail to meet any of the eligibility criteria set forth in this subsection of the Agreement or as outlined in the Program Policies at any time.
d. Submission, Acceptance and Validity of Prospects. You must register each prospect with us using the partner tools we provide through your portal (or through a website as we may designate) prior to the close of a Qualified Transaction. To register a prospect, you must provide at least the following information about each prospect: contact first name, contact last name, email, URL and company name. We generally will accept a prospect who, in our reasonable determination: (i) is a new potential customer of ours; (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process, or your Affiliate; (iii) is a Legitimate Prospect whose contact information was legally obtained.
Notwithstanding the foregoing, we may choose not to accept a prospect, in our reasonable discretion. We may choose to do so at the time of your registration submission, or we may deregister and reject a prospect if we determine a prospect does not meet the criteria outlined in this Section 3.e. at any point after submission, even in cases where it was initially accepted. At the time of registration submission, we may also advise you on whether a prospect is eligible for Cross Sell.
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, we will, at our discretion, accept an order and provision the Subscription Service for the End User in order to complete a Qualified Transaction.
e. Qalyptus Leads. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you offer (each, a “Qalyptus Lead”). We can do the same for other partners of ours, even if it is for the same Qalyptus Lead. You may use the information about the Qalyptus Lead provided only to market and sell your services to them and not for any other purpose (unless the Qalyptus Lead otherwise consents). Immediately upon our or the Qalyptus Lead’s request, you will promptly discontinue all use of and delete the Qalyptus Lead’s information. Qalyptus Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.
f. Engagement with Prospects and End Users. We may engage with a prospect, lead or End User directly (i) to enable our Cross Sell program, (ii) to complete the subscription process, (iii) to fulfill or enforce our obligations under an agreement with such prospect, (iv) to provide support, (v) to conduct our standard marketing and sales activities with prospects; (vi) in connection with the Optional Programs, or (vii) as otherwise permitted by this Agreement.
If and when we do engage, we may choose how to engage with each prospect and may request that you collaborate with us in the engagement. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.
Regardless of the method of purchase and which party is the contracting entity as established by the order, we require each End User to agree to the END USER LICENSE AGREEMENT terms when using our products.
You will take all reasonable steps to ensure that End Users do not use the Qalyptus Products in violation of the END USER LICENSE AGREEMENT terms. If you discover or have reason to believe that any End User is making use of the Qalyptus Products in violation of the END USER LICENSE AGREEMENT terms, then you will immediately notify us in writing.
4. Revenue Share and Payment.
a. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement, fulfilled all eligibility requirements to be a Partner under this Agreement and are in compliance with this Agreement; (ii) provided us with all of your account information, including your bank information; and (iii) submitted to us all the necessary and valid tax documents and the documents have been approved. In order for you to receive the Revenue Share you must have submitted the required documentation set out in this section no later than thirty (30) days after the end of any given fiscal quarter. If we have not received such documentation within this timeframe, we will not process the Revenue Share payment until the next fiscal quarter payment date for applicable Qualified Transactions.
All payments by Qalyptus will be made by bank transfer and it is your responsibility to ensure that you have provided us with the most up-to-date and correct bank information to facilitate the transfer. We 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, Section 4. a., remain outstanding for six (6) months immediately following the close of a Qualified Transaction, or (ii) we have attempted to pay you a Revenue Share for a Qualified Transaction by bank transfer, and the attempt was unsuccessful (as confirmed by bank notice), to no fault of our own; and (iii) we reached out to either the Primary Contact, Billing Contact or Decision Maker Contact on your account (all of which you can update in app) 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 bank transfer described herein, then your 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”). We will have no obligation to pay you Revenue Share associated with a Forfeited Transaction.
Once you comply with all of the requirements in this Section 4 then you will be 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.
b. Revenue Share Payment. We, or one of our Affiliates, will pay the Revenue Share amount due to you within twenty-five (25) days after the end of each fiscal quarter in an amount equal to the Net Revenue we recognize as revenue from Qualified Transactions during such quarter, multiplied by the Revenue Share percentage. We will determine the currency in which we pay the Revenue Share, as well as the applicable conversion rate. The currency in which the Revenue Share is paid in may be different from the currency that applies to the Qualified Transaction. We will not pay more than one Revenue Share or other similar referral fee on any given partner sale (unless we choose to in our discretion). We may withhold the Revenue Share payment until the Revenue Share amount that we owe you is above 100 EUR.
c. Taxes. You are responsible for payment of all taxes applicable to the Revenue Share. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Revenue Share amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
d. Payment Obligations. In the event you placed the order and contracted with us directly for an End User, for payments made by credit card, you will provide us with your valid and updated credit card information or bank account information for the payment of Qalyptus Products fees. You authorize us and our Affiliates to charge your credit card or bank account for all fees payable. You also authorize us and our Affiliates to use a third party to process payments, and consent to the disclosure of your payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice. In the event you placed the order with us for an End User, if you do not pay fees due for an End User’s account within ten (10) days after notice of non-payment from us or our Affiliate, we may suspend the Qalyptus Products while any payment is delinquent and may charge a re-activation fee to reinstate any Qalyptus Products. We may also terminate or suspend the End User’s access to the Qalyptus Products and/or to initiate direct communication with the End User. Notwithstanding the expiration or earlier termination of this Agreement, you remain obligated to pay all fees due for our provision of the Qalyptus Products to End Users in connection with an order placed with us by you for an End User. If you placed the order with us for an End User and/or contracted with us on their behalf, you will have sole responsibility for invoicing and collecting fees for the Qalyptus Products from the End User. Your obligation to pay fees to us is not conditioned upon your receipt of payment from the End User.
5. Training and Support
a. Training and Support. We will make available to you, without charge, various webinars and other resources made available as part of our Program. We will also make available to you a Partner Toolset, accessible through your Qalyptus portal. We may change or discontinue any or all parts of the Partner Toolset, and any other Program benefits or offerings at any time without notice.
b. End User Training and Support. We will provide user training purchased by an End User as set forth in a mutually agreed upon order between the End User and Qalyptus. We may communicate directly with any End User about use of the Qalyptus Products and any support issues experienced.
c. Qalyptus Partner License. If we make a Qalyptus license available to you, then you will use the Qalyptus license solely for your own education, demonstration and evaluation purposes. We reserve the right to suspend or discontinue providing you with Qalyptus licenses at any time without prior notice to you.
6. Optional Partner Programs
We may from time to time offer you optional tools, beta testing programs or partner promotions (the “Optional Programs”). If you choose to use any Optional Programs, you grant us all rights and permissions to take all actions reasonably necessary to effectuate the purpose of the Optional Programs. If the Optional Programs include our making certain promotions available to our partners, you will: (i) market and promote the promotion only to your registered and valid prospects, (ii) only market and promote the promotion individually within a distinct sales process, and not engage in any form of mass marketing of the promotion, and (iii) will follow the all the other terms and criteria applicable to that specific promotion as we designate.
We may discontinue all or a portion of any Optional Programs at any time.
Additional terms may apply to your participation in Optional Programs. We will make any additional terms available to you for your review at the time of the offer to participate in such Optional Programs.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Participant Marks”) in connection with the Program and this Agreement.
We retain all ownership rights in Qalyptus Trademarks. During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section and the incorporated guidelines. You must: (i) only use the images of our trademarks that we make available to you as part of your participation in this Program, without altering them in any way; (ii) only use our trademarks in connection with the Program and this Agreement; (iii) immediately comply if we request that you discontinue use.
You must not use any of our trademarks: (a) in a misleading or disparaging way; (b) outside the scope of the Program or this Agreement; (c) in a way that implies we endorse, sponsor or approve of your services or products; or (d) in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
8. Proprietary Rights
Qalyptus’s Proprietary Rights. No license to any software is granted by this Agreement. The Qalyptus Products are protected by intellectual property laws. The Qalyptus Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Qalyptus Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Qalyptus Content, or the Qalyptus Products in whole or in part, by any means, except as expressly authorized in writing by us. Qalyptus, the Qalyptus logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers and partners to comment on the Qalyptus Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Qalyptus Products, without payment to you.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Qalyptus customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, 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 Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents.
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
10. Opt Out and Unsubscribing
11. Term and Termination
a. Term. This Agreement will apply for as long as you participate in the Program and fulfill all the participation requirements under the Program, until terminated.
b. Termination Without Cause. Both you and we may terminate this Agreement on thirty (30) days written notice to the other party.
c. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
d. Termination for Cause. We may terminate this Agreement and/or suspend your or the End User’s access to the Qalyptus Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) automatically, within thirty (30) of you failing to meet the Program requirements applicable to you in your capacity as the Partner; (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, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Customer Terms of Service or applicable local, state, national, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us, including if you default on your payment obligations to us or our Affiliate, or (vi) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
e. Effects of Expiration/Termination. Expiration or termination of this Agreement for any reason does not terminate your Subscription Service or any Subscription Service you may have purchased on an End User’s behalf. Your purchase and use of the Subscription Services is governed by the END USER LICENSE AGREEMENT. Otherwise, expiration of this Agreement, and termination of this Agreement: (i) without cause by us, (ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you any earned Revenue Share, so long as the related payment by the End User is recognized by us within thirty (30) days after the date of such termination or expiration.
Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all Qalyptus badges and references to this Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.
12. Partner Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Participant Marks; (iv) you will not use our Partner program to purchase Qalyptus products for yourself.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Program, (b) our use of the prospect or lead data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of or participation in the Optional Programs, (e) your use of Qalyptus licenses for Partners, or (f) our use of the Participant Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
14. Disclaimers; Limitations of Liability
a- Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE QALYPTUS PRODUCTS, QALYPTUS CONTENT, THE PARTNER PROGRAM OR THE PARTNER TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE PARTNER TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE QALYPTUS PRODUCTS AND PARTNER TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE QALYPTUS PRODUCTS AND THE PARTNERTOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TOTHE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d- Test Portal. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE TEST PORTAL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE TEST PORTAL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any public job posting or public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
a. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be posted at https://www.qalyptus.com/partners/partner-program-agreement (or other designated URL) and we will let you know through an in-app notification in your portal or by email. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Applicable Law. This Agreement shall be governed by the laws of France, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the courts located in Lyon.
c. Force Majeure. Neither party will be responsible for failure or delay of performance 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.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
f. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of France and any other relevant local export laws and regulations may apply to the Qalyptus Products. You will not directly or indirectly export, re-export, or transfer the Qalyptus Products to prohibited countries or individuals or permit use of the Qalyptus Products by prohibited countries or individuals.
g. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
- To Scotfy SAS: Scotfy SAS, 33 Rue de la république, 69005 Lyon, France. Attention: General Counsel
- To you: your address as provided in our Partner account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
i- Entire Agreement. This Agreement is the entire agreement between us for the Partner Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Qalyptus Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Qalyptus Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
j- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l- Program Policies Page. We may change the Program Policies from time to time. Your participation in the Partner Program is subject to the Program Policies, which are incorporated herein by reference
m- No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Qalyptus Products, our trademarks, or any other property or right of ours.
n- Sales by Qalyptus. This Agreement shall in no way limit our right to sell the Qalyptus Products, directly or indirectly, to any current or prospective customers.
o- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
p- Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.