Partner Program Agreement
Last updated February 12th, 2021.
IMPORTANT – THIS IS A BINDING LEGAL AGREEMENT. IF YOU DO NOT AGREE TO THIS PARTNER AGREEMENT, YOU MAY NOT SUBMIT AN APPLICATION TO PARTICIPATE IN THE PARTNER PROGRAM. BY SUBMITTING AN APPLICATION TO PARTICIPATE IN THE PARTNER PROGRAM, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS PARTNER AGREEMENT.
This Partner Program Agreement (“Partner Agreement”) is entered into between AddSearch Oy, a Finnish company doing business under the trade name “AddSearch” (“AddSearch”) and the individual or entity designated as the “Partner” on the Partner Program Application Form (“Application”) completed in connection with this Partner Agreement (“Partner”). This Partner Agreement is effective only upon AddSearch’s written acceptance of Partner’s Application (such date of acceptance is referred to as the “Effective Date”).
WHEREAS, AddSearch is in the business of developing and selling search solution subscriptions, as described in more detail at https://www.addsearch.com (the “AddSearch Services”). AddSearch Services means both the AddSearch Service and Plan as described on AddSearch Terms and Conditions at https://www.addsearch.com/terms/. This excludes potential consulting services and other one-off services AddSearch may provide from time to time;
WHEREAS, AddSearch desires to market the AddSearch Services to third party customers (“Customers“) and has established a partner network of organisations for the sales of AddSearch Services to Customers (the “AddSearch Partner Program”); and
WHEREAS, Partner desires to participate in the AddSearch Partner Program, in accordance with the terms and conditions of this Partner Agreement.
In consideration of the mutual agreements and covenants herein contained, the parties hereto agree as follows:
- PARTNER SERVICES AND COOPERATION
As of the Effective Date (only upon written approval of Partner’s Application), Partner is granted a non-exclusive, non-transferable and revocable right to promote, market and sell the AddSearch Services to potential Customers (the “Partner Services”), in accordance with the terms and conditions of this Partner Agreement. For clarity, the Partner Services may include referrals of Customers to AddSearch as well as resale of AddSearch Services by Partner. For clarity, the Partner shall, however, have no authority to make customer contracts on behalf of AddSearch. Partner agrees to perform the Partner Services in accordance with the following and subject to such other written rules and guidelines as AddSearch may establish for the Partner Program and publish on the AddSearch website from time to time:
(a) Partner shall receive access to Partner Management Platform (“Platform”) where Partner manages all the Partner’s Customers. AddSearch system provides Partner with a Site Key code (“Site Key”) that Partner inputs to the Platform in order to register the Customer to be associated with the Partner.
Partner will not utilize any paid advertising mediums, including pay-per-click, network display banners, or comparison shopping engines, without submitting a written marketing plan to AddSearch and obtaining AddSearch’s prior written approval. Without a prior written approval from AddSearch, Partner will not be allowed to bid on any iteration of AddSearch or AddSearch Services related keywords for the purposes of generating a Commission.
Partner agrees to provide keyword lists, ads, advertising cookies, and any other data to AddSearch upon request and to make any modifications requested in a timely manner.
(b) Any materials used in connection with the Partner Services shall be approved by AddSearch, and no marketing, advertising or promotional materials other than those approved by AddSearch or provided by AddSearch may be used by Partner to perform Partner Services under this Partner Agreement without the prior written consent of AddSearch. Use of the AddSearch logo or brand must be in line with the AddSearch Brand Guidelines document.
(c) Partner shall not make any promises or representations or give any warranties, guarantees or indemnities in respect of the AddSearch Services, except as such are contained in the then-current AddSearch Terms and Conditions or such other customer agreement as may be agreed-upon by AddSearch related to the AddSearch Services (a “Customer Agreement”) or as otherwise expressly authorized by AddSearch in writing. For clarity, the AddSearch Services may be provided for the use of the Customers solely in accordance with the Customer Agreement as informed by AddSearch. This applies irrespective of whether the Partner solely refers the Customers to AddSearch or acts as the reseller of the AddSearch Services. The Partner shall not make any claims with respect to the AddSearch Services’ performance or the warranty related to the AddSearch Services different from those communicated in writing by AddSearch. When Partner acts as a reseller of the AddSearch Services, the Partner shall be responsible for ensuring that the Customers are bound by the Customer Agreement with AddSearch.
(d) Partner shall perform the Partner Services in a manner that will reflect favorably on the AddSearch Services and on the good name and reputation of AddSearch, and shall not alone or with others participate in any illegal, deceptive, misleading, or unethical practices, including but not limited to disparagement of the AddSearch Services or AddSearch. Partner further agrees to refrain from performing Partner Services using bulk email messages (also known as “spam”). Partner’s failure to abide by all applicable laws relating to email communications, in any manner, shall be deemed a material breach of this Partner Agreement by Partner and will result in the forfeiture of any and all rights Partner may have to any Commission (as that term is defined below) and the termination of this Partner Agreement.
(e) A Commission will not be payable for any activity occurring before a Partner Program Application is formally accepted. Any previously referred or pending plans, subscriptions or transactions will be ineligible for a Commission.
(f) Partner is solely responsible for and agrees to comply with all applicable laws, regulations, and guidelines concerning advertising, marketing and sales in all and any countries and regions where Partner has operations or other activities.
(g) The parties hereto acknowledge that, under this Partner Agreement, both parties process personal data on their own behalf as data controllers. Both parties shall be liable for their own compliance with applicable data protection laws. Each party shall ensure that data subjects may exercise their rights under applicable data protection laws with regard to such party’s data processing activities. In case the parties process personal data on behalf of each other as processors, the parties agree to enter into a data processing agreement required under applicable laws. For clarity, Partner agrees to comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Partner resides, including without limitation, the General Data Protection Regulation 2016/679 (the “GDPR”), California Consumer Privacy Act (CCPA), and other relevant data protection laws and regulations applicable from time to time.
(h) Where Partner acts as a reseller of the AddSearch Services, Partner agrees to immediately notify AddSearch of any breach of the Customer Agreement by Customer. Also, Partner shall give AddSearch prompt notice of every complaint made by a Customer to Partner concerning the AddSearch Services.
(i) Nothing contained in this Partner Agreement shall prevent, limit, or restrict any party’s right to restructure or otherwise organize its business activities in whatever manner it deems appropriate. No exclusivity is granted under this Partner Agreement and the parties are entitled to co-operate with third parties. This Partner Agreement shall not prevent or restrict the parties’ business activities independently, unless otherwise so agreed in this Partner Agreement.
(j) Where Partner acts as the reseller of the AddSearch Services, Partner will in its sole discretion establish the fees it charges from Customers for the AddSearch Services. The Partner shall bear all risk of non-payment by Customers, and is solely responsible for its own costs and expenses incurred during the performance of its obligations set out herein.
(k) Where Partner acts as the reseller of the AddSearch Services, Partner will, at its own cost, maintain a customer service personnel sufficient to meet the training and customer service needs of Customers in accordance with the policies and guidelines provided by AddSearch to Partner from time to time. Partner will be responsible for performing, in a manner consistent with good industry practice and AddSearch policies, customer service, support and training services to its Customers. Moreover, Partner shall, at its own cost, be responsible for the introduction of the AddSearch Services to each Customer’s operations.
(l) Where Partner acts as the reseller of the AddSearch Services, AddSearch shall, at AddSearch’s list prices, provide its then-current standard technical support to Partner in relation to the use of the AddSearch Services. Such technical support shall be made available in accordance with and shall be subject to AddSearch then-current technical support terms and conditions and price lists.
(m) To the extent the Partner has been granted any access to the AddSearch Services by AddSearch, the Partner shall comply with all use restrictions set out in Customer Agreement in force from time to time.
(n) Neither party hereto shall issue any press release or make any other written public statement with respect to this Partner Agreement without the prior email or written consent of the other. However, during the term of this Partner Agreement, Partner may identify itself as a partner/reseller of AddSearch and AddSearch may identify Partner (and utilize Partner’s logo in connection therewith) as an authorized AddSearch partner/reseller.
(o) The parties hereto shall co-operate to their mutual benefit, with the aim to carry out the agreed objectives and shall keep each other informed of all essential matters relating to the cooperation hereunder. Each party will furnish to the other such cooperation and assistance as may be reasonably required hereunder; provided, however, that the parties shall be deemed to be independent contractors, and the employees of one shall not be deemed to be the employees of the other.
(a) In consideration of Partner’s performance of Partner Services hereunder, AddSearch agrees to pay Partner a commission (“Commission”) in accordance with AddSearch’s current Partner commission schedule, available at https://www.addsearch.com/partners/ or otherwise provided by AddSearch in writing, with respect to each Customer that is referred to AddSearch by Partner (a “Referred Customer”). For purposes of this Partner Agreement, a Customer will be considered a Referred Customer only if:
(1) the Customer has made directly a revenue generating subscription to AddSearch Services and accepts the then-current AddSearch Customer Agreement and the Customer’s Site Key is registered on the Platform prior to respective subscription payments as instructed by AddSearch from time to time, also to recognise Partner’s association with the Customer Agreement; or
(2) the Partner creates a revenue generating subscription to AddSearch Services on behalf of a Customer of the Partner and such Partner enters into a Customer Agreement with AddSearch and Partner has saved the Site Key to Platform prior to respective subscription payments as instructed by AddSearch from time to time, also to recognise Partner’s association with the Customer Agreement. Partner may remain on the account as the account owner or the administrator.
(b) Partner agrees and acknowledges that AddSearch’s obligation to pay Partner is contingent upon AddSearch receiving correct payment from the Referred Customer or Partner in accordance with the Customer Agreement. Commission shall be calculated as a percentage amount from net revenue generated from subscription fee, any renewal fees, and any upgrade or downgrade fees that are actually paid to AddSearch by Referred Customer or by Partner for the Referred Customer for the AddSearch Services during the term of this Partner Agreement. Net revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds not due to a contract breach by AddSearch, and (ii) shall exclude any implementation, customization, training, consulting or other professional services, or fees for third-party products or services. The Referred Customer’s account with AddSearch must be in good standing at the time of payout or any Commission will be forfeited. Additionally, if any Referred Customer account is determined to be fake or fraudulent by AddSearch in its sole discretion, the Commission will be forfeited. The Commission shall be Partner’s sole compensation under this Partner Agreement and Partner shall have no right to receive any additional commission, license fee, expense reimbursement or other payment or compensation in connection with this Partner Agreement. Partner’s right to receive Commission is subject to and limited by the termination rights under Section 4.
(c) Partner shall not transfer any subscriptions, payments or transactions to another account for the purpose of generating a Commission.
(d) The Commission will be paid by the Platform quarterly unless instructed differently by AddSearch or the third party Platform provider. Partner shall be able to monitor the Commission amounts on the Platform. Partner is responsible for providing correct payment information to the Platfom. AddSearch is not liable for payments made to an incorrect bank account due to unclear banking details provided by Partner.
From time to time, at AddSearch discretion, AddSearch may also provide other services and limited sales support to Partner. Such other services for Partner shall be described on https://www.addsearch.com/partners/.
- INDEPENDENT CONTRACTOR
The relationship between the parties hereunder is that of independent contractors. Nothing in this Partner Agreement shall be construed to create an agency, employment, joint venture, or partnership relationship. Neither party shall have the right to incur any liabilities or obligations on behalf of the other party.
- TERM & TERMINATION
The term of this Partner Agreement shall commence as of the Effective Date and shall continue perpetually until and unless terminated pursuant to this Section 4. AddSearch may in its discretion terminate the AddSearch Partner Program or this Partner Agreement at any time by providing a written notice to Partner. Partner may terminate this Partner Agreement at any time by providing written notice to AddSearch and promptly returning all AddSearch products or materials in Partner’s possession (if any). Upon the effective date of termination by either party,
Partner’s performance of Partner Services shall immediately cease and AddSearch shall have no further obligations to Partner under this Partner Agreement. This may include the cancellation of pending or prior earned Commission if AddSearch determines they were generated falsely or fraudulently. Sections 5(a), 6 and 7 shall survive termination of this Partner Agreement.
Upon termination or expiry of this Partner Agreement, (i) all rights and licenses granted to Partner shall terminate immediately and Partner shall immediately discontinue all use of Trademarks and return to AddSearch all materials relating to the AddSearch Services that it may possess, (ii) Partner shall immediately discontinue all sales activities in relation to AddSearch Services and may no longer identify itself as an AddSearch reseller/partner, (iii) Partner shall promptly notify all Referred Customers of termination of this Partner Agreement.
- PROPRIETARY RIGHTS
(a) The parties agree that AddSearch is the sole and exclusive owner of any and all right, title, and interest in, to, or under (i) the AddSearch Services and the Partner Program and all intellectual property rights associated therewith, and (ii) any trademark, trade name, trade dress, design, logo, name or other designation used for or in connection with AddSearch, the AddSearch Services or the Affiliation Program, and any and all variations or modifications to the foregoing that may be approved by AddSearch in its sole discretion (“Trademarks”).
(b) AddSearch grants Partner a non-exclusive, non-transferable, limited right and license during the term of this Partner Agreement to use the Trademarks solely as necessary to perform Partner Services hereunder. Partner shall not assert any claim of ownership of, or any claim to, any goodwill or reputation associated with the Trademarks and shall not take and shall not permit any action or omission in derogation of any of the rights of AddSearch in the Trademarks, either during the term of this Partner Agreement or thereafter.
(c) In the event Partner submits to AddSearch any ideas, materials, or other information (including, without limitation, suggestions for new or improved products or services or changes to the Partner Program) (“Ideas”), such Ideas shall thereafter be the sole and exclusive property of AddSearch and Partner hereby assigns to AddSearch all of Partners rights in and to such Ideas. Partner hereby waives its moral rights in any such Ideas.
- LIMITATION OF LIABILITY
In no event shall AddSearch be liable to Partner or its officers, directors, managers, shareholders, or members for any special, indirect, incidental, or consequential damages, including but not limited to lost or anticipated revenues or profits, arising from any claim relating to this Partner Agreement or the AddSearch Services, whether such claim is based on warranty, contract, tort (including negligence or strict liability) or otherwise, even if an authorized representative of AddSearch is advised of the possibility or likelihood of same.
Partner agrees to defend, indemnify and hold harmless AddSearch, its Partners, and its and their directors, officers, employees, agents and assignees (the “Indemnitee”) and shall pay all losses, damages, fees, expenses or costs (including reasonable attorneys’ fees) incurred by the Indemnitee based upon any claim, demand, suit or proceeding arising out of or resulting from: (i) Partner’s participation in the Partner Program, (ii) any breach of this Partner Agreement by Partner; (iii) any negligent or intentional acts of Partner; or (iv) any violation of laws, regulations or court orders by the Partner. Indemnitee shall have the right to approve Partner’s counsel to defend any such claims, which approval shall not be unreasonably withheld, and to approve any settlement agreement. Indemnitee also shall have the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Partner hereunder.
At any time if AddSearch deems that any part of the AddSearch Services infringes the intellectual property rights of any third party, AddSearch has the right at its own expense to modify/replace the AddSearch Services to eliminate the infringement or procure to Customer or Partner a right to use the AddSearch Services. If this is not reasonably possible, AddSearch may terminate the Customer Agreement. AddSearch shall not be liable for any third-party intellectual property claims towards the Customer or Partner.
This Section 7 contains AddSearch’s entire liability and Partner’s and Customer’s sole and exclusive remedy in case of intellectual property rights infringements.
The parties hereto shall not disclose to any third parties any material or information received from the other party and marked as confidential or which should be understood to be confidential (“Confidential Information”), and shall not use such Confidential Information for any other purposes than those stated in this Partner Agreement. The parties shall limit disclosure of the Confidential Information only to those of its employees, consultants, officers or agents on a need to know basis only, provided that all such persons receiving Confidential Information shall be made aware of its confidential nature and the restrictions and obligations set out herein and shall be under similar restrictions and obligations no less stringent as those set forth herein. Upon termination of this Partner Agreement, the parties will at the other party’s request return (or destroy) any Confidential Information in its possession.
The confidentiality obligation shall, however, not be applied to material and information, (a) which is generally available or otherwise public; or (b) which the party hereto has received from a third party without any obligation of confidentiality as verified by the written records of such receiving party; or (c) which a party hereto has independently developed without using material or information received from the other party as verified by the written records of the party; (d) which a party is obligated to disclose due to applicable mandatory laws, public authority regulations or court orders. In case of disclosure due to (d), the party must promptly inform the other party of such disclosure.
The rights and responsibilities under this Section shall survive the expiry or termination of this Partner Agreement for a period of 5 years after such expiry or termination.
Any notice provided pursuant to this Partner Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if by e-mail, upon confirmation thereof; or (iii) if by next day delivery service, upon such delivery. All notices to AddSearch shall be addressed as follows:
All notices to Partner shall be addressed to the address provided by Partner in its Application, which address shall be updated in writing, as needed, by Partner.
This Partner Agreement may not be modified except by amendment reduced to writing and signed by both AddSearch and Partner. No waiver of this Partner Agreement shall be construed as a continuing waiver or consent to any subsequent breach thereof.
- ENTIRE AGREEMENT
This Partner Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter herein and supersedes all prior discussions between the parties.
- GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION
This Partner Agreement shall be governed by the laws of Finland, excluding its choice of law provisions. Any dispute, controversy or claim arising out of or relating to this Partner Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Finland Chamber of Commerce. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English or other language agreed by the parties hereto. Partner waives any objections to venue or jurisdiction.
If one or more of the provisions in this Partner Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.
Section headings are not to be considered a part of this Partner Agreement and are not intended to be a full and accurate description of the contents hereof.
- FORCE MAJEURE
Both parties hereto shall be excused and shall not be responsible for any failure to comply with the terms of this Partner Agreement due to causes beyond their control or the control of their suppliers, including but not limited to war, insurrection, riot or other civil disobedience, pandemic, quarantine restriction, labour dispute except within either party’s organisation, failure or delay in transportation, accidents, flood, earthquake, fire, storm or other act of God, act of any government or any agency thereof or judicial action.
The Partner may not assign this Partner Agreement without the prior written consent of AddSearch. AddSearch may assign this Partner Agreement to an affiliate or to a third party as part of a sale or transfer of its business operations pertaining to this Partner Agreement.
- ELECTRONIC CONTRACTING.
AddSearch and Partner desire to facilitate certain transactions pursuant to this Partner Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by AddSearch and governed by the laws of Finland.