This Partner Program Agreement (the “Agreement”) is entered into effective on the date of your Registration, and between you and Agiled.
A. Agiled licenses a proprietary software application and related services to assist Agiled Partners in acquisition and retention of customers for the Agiled Web Application & related services.
B. Agiled desires to retain the services of Partner, and Partner desires to perform such services, to solicit customers for the Agiled Web Application throughout the world as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Appointment of Agiled Partner. Agiled Appoints Partner as its non exclusive Agiled Partner to solicit orders from potential customers for the Agiled Web Application throughout the world. Any customer originated, procured or introduced by Partner shall be deemed a Customer for which Partner shall be entitled to Commission. In the case that the customer came in through a Partner link, the cookie expiration is set at 60 days. Agiled retains the right to Appoint other Agiled Partners to attract customers for Agiled Web Application. In consideration of Partner’s efforts, Agiled shall pay Partner a Commission in accordance with Section 4, below.
2. Duties of Partner. Partner accepts the Appointment as Agiled’s Agiled Partner for Agiled Web Application and shall at all times use best efforts to promote and develop the sales of the Agiled Web Application to Customers. Partner shall comply with all applicable laws, ordinances, rules and regulations of any federal, state, county or municipal authorities in performing the services contemplated by this Agreement. Partner will bear all costs and expenses associated with its/his/her sales efforts under this Agreement. Partner shall complete such training as required by Agiled from time to time. Partner shall contact and confer with each Customer not less than every thirty (30) days in order to receive compensation pursuant to this Agreement.
3. Customer Inquiries; Order and Collection Procedures.
(a) Agiled and Partner shall cooperate in maximizing sales to Customers and share all correspondence and documentation between Agiled and Customers, as reasonably requested by Partner.
(b) Agiled will respond to all requests for Agiled Web Application directly to the Customers. Agiled is responsible to account for all Agiled Web Application provided to Customers and collect amounts directly from Customers.
- In consideration of the services rendered by Partner, Agiled shall pay a Commission to Partner based upon the following:
- Monthly Subscription Fees: Partner shall receive 30% recurring commission of the customers subscription amount for the customer subscription lifetime. Payouts will then end when the Customer cancels subscription or stops paying for the subscription. Partner will only get a commission on months that are paid & not refunded during the 30 day refund period.
- Yearly Subscription Fees: Partner shall receive 30% yearly recurring commission of subscription amount if the customer chooses a yearly subscription when upgrading from a Free Trial. If the referred customer cancels their subscription at any time during this first year, then Agiled reserves the right to reduce the balance owed to the Partner to compensate if any partial refund is granted to the Customer.
- No Commission shall be payable on taxes, shipping, refunds or chargebacks.
- Partner earns a Commission pursuant to Section 4(a) upon the receipt of payment resulting from Agiled’s subscription payment arrangement with the customer. Commissions earned during a month will be payable by Agiled to Partner on or before the 30th of the month following the month in which payment is received by Agiled from Agiled. If Partner receives a Commission on a customer account that has subsequent chargebacks, refunds, credits or discounts, then Agiled may deduct the Commission from Partner’s subsequent Commission check for any prior overpayment. If a Commission payment would be less than Fifty Dollars ($50.00), then no check shall be issued until the amount of payment exceeds Fifty Dollars ($50.00).
5. Sales Policy. Agiled shall determine all prices and terms of sales and Agiled has the right to accept or decline Customers. Agiled, in its sole discretion, has the right to change all prices and terms for sales upon notice to Agiled. Agiled shall promptly notify Partner of any changes instituted by Agiled. Partner shall not, without Agiled’s prior written approval, alter, enlarge, or limit orders, make representations or guarantees concerning the Agiled Web Application or accept the return of, or make any allowance for, the Agiled Web Application. Partner shall abide by both Agiled and Agiled’s policies and communicate the policies to Customers. Partner shall assist Agiled in obtaining information that the Agiled credit department may request from time to time relative to the credit standing of a Customer. Partner acknowledges that subsequent to acceptance of a customer, Agiled may decline to continue sales of Agiled Web Application to a Customer at its reasonable discretion.
6. Indemnification. Partner agrees to indemnify and hold Agiled harmless against and to pay all losses, costs, damages, or expenses, including attorneys’ fees, that Agiled sustains on account of or arising from any willful breach of the terms of this Agreement by Partner.
7. Customer Complaints. Agiled and Partner will immediately notify the other party of any Customer complaint that Agiled or Partner, as the case may be, receives and advise the other party of the nature of the complaint so that the parties may respond to Customer.
8. Relationship of Agiled and Partner. Partner is an independent contractor and nothing contained in this Agreement shall be construed to (a) constitute Partner as a partner, joint venturer, employee, or agent of Agiled or (b) allow either party to create or assume any obligation or bind the other party in any respect, except as explicitly provided in this Agreement. Partner is not authorized to make any representation, contract or commitment on behalf of Agiled unless specifically requested or authorized in writing to do so by an officer of Agiled. Partner will not be entitled to any of the benefits which Agiled may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. The manner and means by which Partner chooses to render the Services are in Partner’s sole discretion and control. In rendering the Services, Partner agrees to provide its own equipment, tools and other materials at Partner’s own expense. Partner is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of fees under this Agreement. Partner is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing the Services under this Agreement. No part of Partner’s compensation will be subject to withholding by Agiled for the payment of any social security, federal, state or any other employee payroll taxes. Agiled will regularly report amounts paid to Partner by filing Form 1099-MISC with the Internal Revenue Service as required by law.
9. Non-solicitation. Each of Agiled and Partner covenant to, and agree with, the other party that, for a period of two (2) years following the Term (as defined in Section 11(a), neither Agiled nor Partner will solicit, induce or attempt to induce, any employee of the other party to terminate such relationship with the other party. Notwithstanding the foregoing, if an employee of either party terminates its employment or is terminated, with or without cause, then the other party shall be entitled to hire that employee.
10. New Services.
(a) Agiled agrees to furnish to Partner information concerning the availability of any new Agiled products or services that may be marketable by Partner. All new services, software applications or enhancements to existing software or services shall be included as Agiled Web Application subject to this Agreement.
11. Term; Termination.
(a) Term. This Agreement is effective from the date first above written and shall continue for a period of one (1) year, unless earlier terminated pursuant to Section 11(b). This Agreement shall automatically renew year by year.
(b) Termination. Agiled may terminate this Agreement prior to the end of any Term with thirty (30) days prior written notice to Partner, or, upon a material breach by Partner of this Agreement, at any time during a Term with thirty (30) days notice, provided that Partner may cure any breach within such thirty (30) days in which event the Agreement shall not terminate. Partner may terminate this Agreement prior to the end of any Term with sixty (60) days prior written notice to Agiled, or an earlier date as mutually agreed upon by both parties.
12. Partner shall respect all the trademarks of Agiled.
13. Dispute Resolution. In the event that any controversy or claim relating to any aspect of this Agreement, its breach, or to the relationship created by this Agreement arises (each, the “Dispute”), the parties shall be attempt to resolve the Dispute through personal meetings and/or telephone conferences as needed, at mutually convenient times and places, between negotiators for the parties to attempt to resolve the Dispute. The Parties agree to allot fifteen (15) business days for the negotiators to resolve the Dispute, beginning on the date of delivery of notice by one party to the other party of the desire to negotiate a resolution of the Dispute. If the Dispute is not resolved by negotiators within the allotted time frame, as such period may be extended by mutual agreement, then either party may elect to commence legal action.
14. Proprietary Rights. Partner agrees that Agiled retains proprietary rights in and to all product specifications, designs, engineering details, discoveries, inventions, patents, trade secrets and other proprietary rights relating to the Agiled Web Application. Partner agrees not to use or register for use any name or mark confusingly similar to any trademark of Agiled. Upon termination of this Agreement for any reason, Partner agrees to discontinue use of all Agiled and Agiled trademarks.
15. “Confidential Information” shall mean all information disclosed by Agiled to Partner, or otherwise obtained by Partner in connection with its sales and marketing of the Agiled Web Application, that is not generally known in Agiled’s trade or in the industries served by Agiled, including, without limitation, (a) Agiled’s capitalization structure, and the identity of its investors and creditors, (b) the identity of Agiled’s business partners, clients, distributors and suppliers, and the terms of any agreement Agiled establishes or is negotiating with any of them, (c) Agiled’s business plans, forecasts, financial projections, budgets, actual sales and revenue levels, and unpublished financial statements, (d) Agiled’s prices, proposal content and business costs, (e) concepts, ideas, designs and plans related to Agiled’s development, marketing, sales and production of products and services, whether discontinued, current or future, (f) Agiled’s trade secrets, drawings, inventions and know-how, (g) Agiled’s plans for research, development, and new service offerings or products, and (h) all information regarding the names, skills and compensation of employees, contractors and agents of Agiled and any of such information regarding Agiled. Confidential Information shall also include all proprietary and other confidential information that any third party discloses in confidence (or subject to non-disclosure and/or restricted-use covenants) to Agiled or to Partner in the course of Agiled’s business. Further, any information that Agiled discloses to Partner which, if such information had been disclosed by Agiled itself, would be deemed hereunder to be Confidential Information, shall also be deemed to be Confidential Information for purposes hereof.
16. Representations and Warranties of Partner. Partner represents and warrants that Partner has the full right and authority to enter into this Agreement and perform his obligations hereunder.
17. Representations and Warranties of Agiled. Agiled warrants and represents as follows:
17.1 Agiled has all requisite right, power and authority to execute and deliver this Agreement and to perform its obligations under this and such action has been duly authorized by all necessary action of Agiled.
(a) This Agreement has been duly executed and delivered by Agiled and constitutes the legal, valid and binding obligation of Agiled, enforceable against it, as applicable, in accordance with its terms.
(b) The execution and delivery of this Agreement, do not and will not, directly or indirectly, with or without the giving of notice or lapse of time, or both, violate any provision of Agiled’s organizational and constituent documents, or Agiled’s knowledge, contravene, conflict with or result in a violation or breach of any of the terms or requirements of, or give any governmental agency the right to revoke, withdraw, suspend, cancel, terminate or modify, any governmental authorization that is held by Agiled or that otherwise relates to the Agiled Web Application;
18. Confidential Information. Partner agrees to hold the Confidential Information in strict confidence and not to directly or indirectly disclose such Confidential Information to any third party except with the prior written authorization of Agiled and, then, solely for the benefit of Agiled in connection with Agiled’s business and in a manner consistent with Agiled’s business practices and policies. Partner also agrees not to use any of the Confidential Information for any purpose other than sales and marketing of the Agiled Web Application. Partner’s obligations set forth in this Section 18 shall not apply with respect to any portion of the Confidential Information that Partner can prove (through documentation or other objective evidence): (a) was in Partner’s possession before execution of this Agreement, provided that the source of such information, to the knowledge of Partner after due inquiry, was not bound by an obligation of confidentiality with respect to such information; or (b) is or becomes generally available to the public through no fault of, or without violation of any duty of confidentiality of Partner; or (c) is received by Partner from a third party without, to the knowledge of Partner after due inquiry, violation of a duty of confidentiality. In addition, Partner may disclose Agiled’s Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, provided that (i) Partner has given notice to Agiled of such order or requirement, and (ii) Agiled has been afforded a reasonable opportunity to prevent or limit such disclosure. All Confidential Information furnished to Partner by Agiled is the sole and exclusive property of Agiled or, as applicable, its subsidiaries, affiliates, suppliers or customers. Partner agrees that, upon request by Agiled, Partner will promptly deliver to Agiled the original and any copies of such Confidential Information in its possession or under its control.
19. No Conflict of Interest. During the Term of this Agreement, Partner will not accept work, enter into a contract, or accept an obligation from any third party, that is inconsistent or incompatible with Partner’s obligations, or the scope of the Services rendered for Agiled, under this Agreement. Partner warrants that there exists no other contract or duty on its part that is inconsistent with this Agreement. Partner agrees to indemnify Agiled from any and all loss or liability incurred by reason of the alleged breach by Partner of any agreement with any third party.
20. Noninterference with Business. Partner agrees that during the Term, and for a period of 24 months immediately thereafter, Partner shall not solicit or induce any of Agiled’s suppliers, vendors or other third party providers to terminate any contractual or other relationship with Agiled or materially reduce the volume of Agiled Web Application they purchase from Agiled through Agiled of Agiled. Partner agrees that during the Term, and for a period of one year immediately thereafter, Partner shall not interfere with the business of Agiled by soliciting or inducing any of Agiled’s employees or independent contractors to terminate or breach an employment, contractual or other relationship with Agiled.
(a) Authorization. Each party represents to the other party that such party has the full power and authority to enter into and perform this Agreement in accordance with its terms. All necessary action has been taken to authorize the execution, delivery and performance of this Agreement by such party. The individuals executing this Agreement on behalf of such party are authorized to do so and, upon their execution hereof, this Agreement will be binding upon and enforceable against such party in accordance with its terms.
(b) Entire Agreement. This Agreement is the final, complete and exclusive statement and expression of the agreement between the parties relating to the subject matter of this Agreement. This Agreement supersedes, and cannot be varied, contradicted or supplemented by, evidence of any prior or contemporaneous discussions, correspondence, or oral or written agreements of any kind between the parties.
(c) Assignment; Binding Effect; Amendment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Partner may assign its right, title and interest in and to this Agreement to a wholly owned company at any time and without the consent of Agiled; in the event of such assignment, Partner shall provide Agiled with the name and address of assignee within ten (10) business days of assignment. Except as set forth above, neither Agiled nor Partner may assign this Agreement without the prior written consent of the other party. This Agreement, upon execution and delivery, constitutes a valid and binding agreement of the parties hereto enforceable in accordance with its terms and may be modified or amended only by a written instrument executed by each of the parties. Nothing in this Agreement shall prevent Partner from hiring employees or engaging independent contractors to assist in marketing and selling the Agiled Web Application on Partner’s behalf.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without any reference to the application of any conflicts of laws.
(e) Severability. If any provision of this Agreement conflicts with governing law, the remaining provisions shall remain valid.
(f) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument.
(g) Notices. All notices between the parties shall be in writing and effective when sent by certified mail to the addresses stated in the opening paragraph of this Agreement.
(h) Survival. The rights and obligations contained in Section 4 (I) through(III) (Compensation”) Section 6 (“Representations and Warranties”), Section 16 (Representations and Warranties of Partner) and Section 17 (Representations and Warranties of Agiled) Section 18 (“Confidential Information”) and Section 20 (“Noninterference with Business”) will survive any termination or expiration of this Agreement.