- RESPONSIBILITIES OF PARTNER
The Current Commerce Partner will use its best efforts to (a) promote and market Current Commerce, and (b) identify for Current Commerce prospective Leads. In no event shall Current Commerce Partner engage in any marketing or promotional activity related to Current Commerce in any area, location, territory or jurisdiction without first consulting their partner manager. Current Commerce Partner shall bear all costs and expenses for such activities unless otherwise determined by Current Commerce, in its sole discretion.
All Creative will be solely provided by Current Commerce alone except where agreed to by Current Commerce in writing in advance. Current Commerce will provide Current Commerce Partner with copies of or access to Creative. The Creative shall be accessible from Current Commerce Partner Program website.
1.3. Use of Creative.
Current Commerce Partner may display Creative on the Websites solely for the purpose of marketing and promoting Current Commerce brands promoted by Current Commerce and by Current Commerce Related Entities during the term of this Agreement, or until such earlier time as Current Commerce may, upon reasonable prior notice, instruct Current Commerce Partner to cease displaying the Creative. Current Commerce Partner may not alter, amend, adapt or translate the Creative without Current Commerce’s prior written consent. Nothing contained in any Creative shall in any way be deemed a representation or warranty of Current Commerce or any of Current Commerce Related Entity.
1.4. E-Mail Internet Marketing.
In no event shall a Current Commerce Partner engage in any e-mail marketing or promotion with respect to Current Commerce and/or any Current Commerce Related Entity unless expressly agreed to by Current Commerce. In the event that Current Commerce Partner has an Opt-in List, Current Commerce Partner may make a written request to Current Commerce to send e-mails regarding the offering of Current Commerce and Current Commerce Related Entities to the individuals on the Opt-in List. In the event Current Commerce approves such request, Current Commerce Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to e-mail marketing and “spamming”. Without limiting the generality of the foregoing, Current Commerce Partner shall (a) not send any e-mail regarding Current Commerce and/or Current Commerce Related Entities to any individual or entity that has not agreed to receive information from the sender and (b) always include “unsubscribe” information within the e-mail regarding Current Commerce, Current Commerce Related Entities and/or the Current Commerce platform.
1.5. Unauthorized & Prohibited Marketing Activities.
In addition to the restrictions of Section 1.4 above, a Current Commerce Partner shall not (a) engage in any fax, broadcast or telemarketing and any other offline marketing methods with respect to Current Commerce, Current Commerce Related Entities and/or Current Commerce; (b) use Malware and/or Spyware techniques or use any other aggressive advertising or marketing methods in any of its dealings relating to Current Commerce, Current Commerce Related Entities and/or Current Commerce; (c) make any false, misleading or disparaging representations or statements with respect to Current Commerce, Current Commerce Related Entities or Current Commerce; (d) misrepresent the Current Commerce Partner’s affiliation with Current Commerce; or (e) engage in any other practices which may affect adversely the credibility or reputation of Current Commerce, Current Commerce Related Entities or Current Commerce, including but not limited to, using any Website in any manner, or having any content on any Website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party.
1.6. Prohibited Marketing Activities by a Partner.
A Current Commerce Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use Current Commerce or ‘Current Commerce’ like trademarks and/or variations and misspellings thereof.
1.7. Compliance with Laws.
In addition to, and without limiting the provisions of this Agreement, Current Commerce Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.
- FEES & PAYMENTS.
Current Commerce Partner shall be entitled to receive the Fees as set forth in their “Partnership Payout Doc” provided by Current Commerce. The Fees shall be due on a periodic basis in accordance with the date of sign up to the Partner Program. All payments are subject to risk analysis considerations and Anti-Money Laundering procedures. Current Commerce reserves the right to demand and receive information about any Lead and to assess the competency of such Lead for payments. Current Commerce reserves the right to modify the Fee structure and/or the payment terms at any time upon reasonable advance notice to Current Commerce Partner. Current Commerce shall not be responsible to pay any commissions for a Lead created or owned in whole or in part by a Current Commerce Partner.
Current Commerce may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Current Commerce Partner. Fraudulent or other unacceptable behaviour as defined by Current Commerce can result in termination of partner/customer relationship or termination of partner account entirely without notice to, or recourse for, the Current Commerce Partner. Current Commerce Partner, can terminate this Agreement at any time, with or without cause, effective immediately upon notice to Current Commerce.
3.2. Consequences of Termination.
Upon expiration or termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information); (b) Current Commerce Partner shall immediately cease displaying any Creative on any Website or otherwise; and (c) all rights granted to Current Commerce Partner hereunder will immediately cease.
- PROPRIETARY RIGHTS.
4.1. Proprietary Rights of Current Commerce.
As between Current Commerce Partner and Current Commerce, the Creative, all demographic and other information relating to Leads, Prospective partners and partners, the Platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Current Commerce or otherwise related to Current Commerce, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Current Commerce Property”) shall be and remain the sole and exclusive property of Current Commerce. To the extent, if any, that ownership of any Current Commerce Property does not automatically vest in Current Commerce by virtue of this Agreement, or otherwise, Current Commerce Partner hereby transfers and assigns to Current Commerce, upon the creation thereof, all rights, title and interest Current Commerce Partner may have in and to such Current Commerce Property, including the right to sue and recover for past, present and future violations thereof.
4.2. Current Commerce Trademarks.
During the term of this Agreement, Current Commerce hereby grants to Current Commerce Partner a limited, revocable, non-exclusive and non-transferable license to display the Current Commerce trademarks, solely as necessary to perform Current Commerce Partner’s obligations under this Agreement. Current Commerce Partner acknowledges and agrees that: (a) it will use the Current Commerce trademark only as permitted hereunder; (b) it will use the Current Commerce trademark in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Current Commerce; (c) the Current Commerce trademark are and shall remain the sole property of Current Commerce; (d) nothing in this Agreement shall confer in Current Commerce Partner any right of ownership in the Current Commerce trademark and all use thereof by Current Commerce Partner shall inure to the benefit of Current Commerce; and (e) Current Commerce Partner shall not, now or in the future, contest the validity of any Current Commerce trademarks or use any term or mark confusingly similar to any Current Commerce Trademark.
Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement. Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information; (ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement; or (iii) is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party without breaching any provision of this Agreement.
- DISCLAIMER OF WARRANTY.
CURRENT COMMERCE MAKES NO WARRANTIES HEREUNDER, AND CURRENT COMMERCE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CURRENT COMMERCE FURTHER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT THE PLATFORMS DO NOT INFRINGE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY IN ANY JURISDICTION, INCLUDING, BUT NOT LIMITED TO, THE TERRITORY. CURRENT COMMERCE PARTNER UNDERSTANDS AND AGREES THAT THE PLATFORMS MAY NOT SATISFY ALL OF THE LEADS’ REQUIREMENTS AND MAY NOT BE UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY AND INDEMNIFICATION.
7.1. Limitation of Liability.
CURRENT COMMERCE SHALL HAVE NO LIABILITY WITH RESPECT TO THE PLATFORMS OR ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF CURRENT COMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, CURRENT COMMERCE LIABILITY TO CURRENT COMMERCE PARTNER UNDER THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE AMOUNTS PAID TO PARTNER BY CURRENT COMMERCE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
7.2 Current Commerce Partner Indemnification.
Current Commerce Partner agrees to indemnify, defend and hold harmless Current Commerce and any Current Commerce Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) Current Commerce Partner ‘s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Current Commerce Partner’s gross negligence or willful misconduct; or ( c) any warranty, condition, representation, indemnity or guarantee relating to Current Commerce and Current Commerce Related Entities granted by Current Commerce Partner to any Lead, Prospective partner or other third party.
- NON-EXCLUSIVE REMEDIES.
In the event (a) Current Commerce Partner markets or promotes Current Commerce and/or any Current Commerce Related Entity that promotes the Current Commerce platform to any person or entity outside of the Territory or (b) of any breach or threatened breach of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Current Commerce under this Agreement and under applicable law, Current Commerce shall have the right to (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) immediately terminate this Agreement and Current Commerce Partner ’s engagement hereunder, (iii) receive a prompt refund of all amounts paid to Current Commerce Partner hereunder and (iv) be indemnified for any losses, damages or liability incurred by Current Commerce in connection with such violation, in accordance with the provisions of Section 8 above.
- INDEPENDENT CONTRACTORS
The Parties to this Agreement are 1099 independent contractors as recognized by the US government and are subject to tax and legal implications under this classification. Neither Party is an agent, representative or Related Entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
10. PARTNERSHIP TYPES
Partners are defined as “Affiliate” and “Sales” Partners. They are defined by the manner in which they refer a customer to Current Commerce, therefore a Partner can be considered both an “Affiliate” or “Sales” Partner if they have referred customers in both manners as outlined below.
10.1 “Affiliate” Referrals
Affiliate referrals are those in which the Current Commerce Partner has promoted the Current Commerce brand or service to an audience in hopes of driving that audience to Current Commerce’s website or other lead generation asset. Current Commerce’s affiliate system tracks these referrals for 60 days to give referral credit to the affiliate. Current Commerce affiliate tracking is not guaranteed 100% accurate and defensible to error or issue. Current Commerce representatives will also make a best effort to determine lead sources from inbound phone calls in which the affiliate system does not track.
10.2 “Sales” Referral
Sales referrals are those in which a customer is introduced to Current Commerce through an email or phone call initiated by the Current Commerce Partner. Customers that are purchasing services via the Current Commerce Partner in which Current Commerce is acting more formally as a service provider partner are also considered “Sales” referrals.
10.3 Sales Partner Status
In order to be considered as an active “Sales Partner” you must have provided a “Sales” referral within the last 180 calendar days. Partner accounts that have not provided a “Sales” referral in the last 180 calendar days will be considered “inactive”. Inactive accounts will not be eligible for additional commissions made by previous “Sales” referrals on any new purchases that are initiated by Current Commerce and closed during the inactive period. Purchases that are initiated by the Current Commerce Partner should be treated as a new “Sales” referral.
Existing customer commissions that were originally referred via an “Affiliate” referral are not subject to “sales” partner status and are held to their own eligibility window noted below.
10.4 Affiliate Referral Commission Eligibility
Affiliate Referrals are only considered eligible if they meet the following three criterion i) They were identified as a referral using the Current Commerce referral management system or by a Current Commerce representative over the phone or in person ii) Current Commerce has not had any contact over email with the referral in the last 180 calendar days. iii) They are not currently considered a referral of any type from another partner.
Partners are eligible for commission on any additional services initiated and closed by the Current Commerce team from affiliate referrals sold for up to 365 calendar days after the first payment made to Current Commerce by the customer.
- ENTIRE AGREEMENT
This Agreement, including all Exhibits hereto, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof as set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
- APPLICABLE LAWS
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Georgia. Each Party agrees that any legal action, proceeding, controversy or claim between the Parties arising out of or relating to this Agreement may be brought and prosecuted only in a court of law in the State of Georgia and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such court and waives any objection it might have based upon improper venue or inconvenient forum.