Legal.

PLEASE READ THIS AGENCY PARTNER PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the Partner) and us (Aelieve). 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. These terms are so important though that we cannot have you participate in our Agency Partner Program unless you agree to them. By participating in our Agency Partner Program, you are agreeing to these terms.

We periodically update these terms and we will let you know when we do via an in-app notification in your portal.

1. Definitions

“Agency Partner Program” means our partner program as described in this Agreement.

“Active Partner” means that you have (i) an active Self-Purchase Portal, or (ii) one or more active Marketing Product subscriptions listed in your Aelieve Partner account for which you have received ‘sold’ credit.

“Agreement” means this Agency Partner Program Agreement and all materials referred or linked to in here.  If you are keeping track, the Agency Partner Program Agreement used to just be called the Partner Program Agreement.

“Capacity Limit” means the aggregate number of prospects that you are permitted to have registered at any given time according to the Program Policies.

“Customer Terms of Service” means those terms and conditions located at http://legal.aelieve.com/terms-of-service, as modified from time to time.

“End User” means the authorized actual user of the Aelieve Products or the party on whose behalf you use the Aelieve Products.

“End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the Aelieve Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the Aelieve Products.

“Aelieve Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.

“Aelieve Products” means both the Subscription Service and Other Products.

“Inactive Partner” means that you do not meet the criteria of an Active Partner (defined above.) 

“List Price” means the standard pricing for the Subscription Service as listed at https://aelieve.com/plans//. 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 Aelieve, 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 (as detailed below); and, for the purposes of this Agreement, Other Products include any legacy sales products, implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“Partner Transactions” means those transactions that are eligible for a Revenue Share pursuant to the ‘Partner Transactions’ section of this Agreement.

“Program Policies” means the policies applicable to partners which we have published at https://aelieve.com/partners.

“Revenue Share” means an amount equal to 20% of Net Revenue paid to us by an End User or Partner for a Partner Transaction.

“Self-Purchase Portal” means a subscription to Aelieve’s Marketing Product that was purchased by Partner, along with partner training.

“Subscription Service” means our web-based inbound marketing, sales and services software that is subscribed to, and developed, operated, and maintained by us, accessible via https://aelieve.com or another designated URL, and add-on products to our marketing, sales and services software. For the purposes of this Agreement, the Subscription Service does not include legacy sales and marketing products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“We”, “us”, “our”, and “Aelieve” means Aelieve, Inc.

“You” and “Partner” means the party, other than Aelieve, entering into this Agreement and participating in the Agency Partner Program.

2. Non-Exclusivity

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. Partner 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 Aelieve Products to your prospects and customers, and (ii) to provide End Users access to use the Aelieve 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, including the Program Policies, which are incorporated herein by reference. The Program Policies may include requirements that Partner must complete in order to qualify for a certain partner tier and may also require that Partner purchase certain products or services to participate in the Agency Partner Program.

You will respect the limits that apply to your use the Aelieve products as specified at https://aelieve.com/plans//service-limits (the “Service Limits”). We may update or change these Service Limits by updating https://aelieve.com/plans//service-limits, so we encourage you to review this page periodically.  

If you use our Application Programming Interfaces (APIs), developer tools, or associated software, you will comply with our API Terms at http://legal.aelieve.com/api-terms, which are incorporated herein by reference.

If you use the Aelieve Directory (as defined in the Aelieve Directory Terms of Use), you agree to comply with the Aelieve Directory Terms of Use available at http://legal.aelieve.com/directory-tou.  If you use the Aelieve Community (as defined in the Aelieve Community Terms of Use), you agree to comply with the Aelieve Community Terms of Use available at http://legal.aelieve.com/community-tou.  

c. Agency Partner Program Limits. Your Capacity Limit depends on your partner tier status and will be as set forth in the Program Policies.  Each accepted registration will expire twelve (12) months from the date the prospect was registered. If you are actively pursuing a prospect and the registration is expired, then you may re-register the prospect. An accepted registration may be considered expired prior to the conclusion of any twelve (12) month period if you and we mutually agree to the early expiration of the accepted registration.  We will pay you a Revenue Share for as long as the End User maintains a subscription to the Subscription Service, provided that you remain eligible to receive a Revenue Share pursuant to the terms of this Agreement.

d. Eligibility. To be eligible for a Revenue Share, a prospect must be registered, accepted and valid in accordance with the ‘Submission, Acceptance and Validity’ or the ‘Shared Leads’ 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 Aelieve Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States 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) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you, or (iv) the End User participates in the Agency Partner Program. In competitive situations with other partners, we may elect 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 might also determine that you are not eligible for a Revenue Share if you are no longer actively engaged with the End User. If we request, you will provide validation that the End User is engaged with you (for example, by providing a copy of your retainer agreement with the End User if we so request). We may discontinue Revenue Share payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.

e. Submission, Acceptance and Validity. 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 Partner 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, and (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. Notwithstanding the foregoing, we may choose not to accept a prospect in our reasonable discretion. If a prospect does not purchase the Subscription Service before its registration expires, you will need to complete the registration process again in order to re-qualify for a Revenue Share for that prospect. We will, at our discretion, accept an order and provision the Subscription Service for the End User. 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.

f. Aelieve 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 “Aelieve Lead”). We can do the same for other partners of ours, even if it is for the same Aelieve Lead. You may use the information about the Aelieve Lead provided only to market and sell your services to them and not for any other purpose (unless the Aelieve Lead otherwise consents.) Immediately upon our or the Aelieve Lead’s request, you will promptly discontinue all use of and delete the Aelieve Lead’s information. Aelieve Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

g. Shared Leads. If we decide to participate in the same sales process as you and this results in the sale of the Subscription Service to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, (iii) being expired, or (iv) exceeding the registered capacity limits or other applicable limits, (each, a “Shared Lead”) and you have an Active Engagement (defined below) with such Shared Lead, then we may consider that Shared Lead a registered, accepted and valid prospect for the purposes of the ‘Eligibility’ section above. An “Active Engagement” means that you have a fully executed written agreement with the Shared Lead under which you are retained to provide marketing services that (i) either pre-dates the time at which the sale of the Subscription Service is closed, or is signed contemporaneously with the close of the sale of the Subscription Service, and (ii) extends at least ninety (90) days beyond the close of the sale of the Subscription Service.

h. Engagement with Prospects. If a prospect is not a Aelieve Lead or a Shared Lead but is otherwise valid, we will not engage with that prospect except: (i) to complete the subscription process, (ii) to fulfill or enforce our obligations under an agreement with such prospect, (iii) to provide support, (iv) to conduct our standard marketing and sales activities with prospects that have provided their information to Aelieve, for example, by converting on a landing page of ours or by otherwise subscribing to or requesting any of our marketing materials or a product demonstration, (v) in connection with the Optional Partner Programs (for example, the Agency Prospecting Program), or (vi) as otherwise permitted by this Agreement.  When we do engage, we may choose how and whether to engage with each prospect. We may elect to contact the prospects directly, whether or not such contact is by us directly or in conjunction with you.  Upon our request, you will provide us with the name and contact information of the End User, 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.

If we request, you will facilitate our participation on calls with you and various End User(s). We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Agency Partner Program.

In a resulting transaction, (i) the End User will contract directly with us for provision of the Aelieve Products, or (ii) you will place order(s) for the Aelieve Products with us, specifying the terms of the Aelieve Products ordered and providing information about the End User as we may request. In the case of (ii), you may sell the Aelieve Products to End Users at a price determined solely by you and you will ensure that your agreement with the End User contains those provisions set forth in the our Customer Terms of Service.  If you purchase on behalf of an End User, you agree to be responsible for the order placed and to guarantee payment of all fees.  We may also require each End User to agree to the Customer Terms of Service.

If you purchase a subscription for an End User, such subscription may be used only for the End User for which it was originally purchased, and it may not be repurposed for or reassigned to an alternate End User without our prior written consent.

You will take all reasonable steps to ensure that End Users do not use the Aelieve Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the Aelieve Products in violation of the Customer Terms of Service, 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 (generally completed through the partner tools tab in your portal); (ii) completed all information in our account information form (which can be downloaded here); (iii) submitted to us the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Partners, or Form W-8BEN or W-8BEN-E(instructions here) for non-U.S. based Partners); and (iv) returned the forms required by (ii) and (iii) above by email to varcommissions@aelieve.stagesite.dev.

Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 4(a)(i-iv) remain outstanding for six (6) months immediately following the close of a Partner Transaction, then your right to receive Revenue Share arising from any and all Partner Transactions 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 section 4(a)(i-iv), then you will be eligible to receive Revenue Share on Partner Transactions, as long as these Partner 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 forty-five (45) days after the end of each fiscal quarter in an amount equal to the Net Revenue we recognize as revenue from Partner Transactions during such quarter, times the Revenue Share percentage. For example, pre-payment in full by an End User for an annual commitment will be recognized by us as revenue quarterly on a pro-rata basis for the length of time the Subscription Service was provided during each quarter during the annual term, and you will receive the Revenue Share on that same quarterly pro-rata basis. 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 Partner 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) and we may apportion a Revenue Share if more than one of our partners has contributed to the close of a sale.

If we update this Agreement to include additional products for which you are eligible to earn Revenue Share, the obligation to pay this additional Revenue Share amount will apply starting on the first day of the month when the additional product was included in the Agreement.  This means you may earn Revenue Share on our Service Hub Product, starting on May 1, 2018.

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. Partner Payment Obligations. In the event you placed the order with us for an End User, for payments made by credit card, you will provide us with valid and updated credit card information or bank account information. 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 fifteen (15) days after notice of non-payment from us or our affiliate, (i) the unpaid fees will incur a late fee equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law, and (ii) we may suspend the Aelieve Products while any payment is delinquent. We may also terminate or suspend the End User’s access to the Aelieve 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 Aelieve 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, you will have sole responsibility for invoicing and collecting fees for the Aelieve 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. Partner Training and Support. We will make available to you, without charge, the webinars and other resources at https://aelieve.com/partners. We will also make available to you a Partner Toolset, accessible through your Aelieve portal. You will encourage your sales representatives and other relevant personnel to participate in our online end-user training and the ‘Inbound Marketing Certification’ program, as well as any training we may offer in new features and upgrades. You may be eligible to receive certain technical support offerings as described in the Program Policies. Such technical support program offerings are provided under our technical support policies in effect at the time the support is provided. We may also choose to make benefits or offerings available dependent on the applicable partner tier and status. We may change or discontinue any or all parts of the Partner Toolset, and any other Agency Partner 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.  We may to communicate directly with any End User about use of the Aelieve Products and any support issues experienced.

In the event you placed the order with us for an End User or standard on-boarding is not included in a Partner Transaction, you will be responsible for all End User questions and requests for additional support or training for the Aelieve Products. In such an event, you may consult with us with regards to providing support to End Users, but we will not provide direct support to End Users unless we determine that it is necessary. 

c. Test Portal.  If we make a Aelieve Test Portal available to you, then you will use the Test Portal for solely for your education, demonstration and evaluation purposes only, and you are not permitted to use it for any other purpose.  You will not lease, distribute, license, sell or otherwise commercially exploit the Test Portal. The Customer Terms of Service apply to your use of the Test Portal.  As indicated in the Customer Terms of Service, you will comply with our Acceptable Use Policy at http://legal.aelieve.com/acceptable-use with respect to your use of the Test Portal.  We reserve the right to suspend, modify, or discontinue any or all part of the Test Portal at any time without prior notice to you.  In the event of a conflict between the terms that apply to the Test Portal as specified in this Agreement and the Customer Terms of Service, the terms of this Agreement shall control.

6. Optional Partner Programs

We may from time to time offer you tools such as the Agency Prospecting Program (APP) or Partner Promotions (the “Optional Partner Programs”).. If you choose to use any Optional Partner Programs, you grant us all rights and permissions to take all actions reasonably necessary to effectuate the purpose of the Optional Partner Programs (for example, auto-registering your prospects with our CRM system and contacting your registered prospects to promote our services).

If the Optional Partner 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 Partner Programs at any time.

7. Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Agency Partner Program and this Agreement. 

During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section.  You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Agency Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use.  You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

8. Proprietary Rights

a. Aelieve’s Proprietary Rights.  No license to any software is granted by this Agreement. The Aelieve Products are protected by intellectual property laws. The Aelieve Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Aelieve Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Aelieve Content, or the Aelieve Products in whole or in part, by any means, except as expressly authorized in writing by us. Aelieve, the Sprocket Design, the Aelieve 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 Aelieve 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 Aelieve Products, without payment to you.

b. End User’s Proprietary Rights. As between you and End User, End User retains the right to access and use the End User portal associated with the Aelieve Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If we deem it to be necessary based on the relationship status between you and the End User or the particular situation, we may communicate directly with the End User and/or may port ownership of the portal associated with the Aelieve Products to the End User.

9. Confidentiality  

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) Aelieve 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

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to Aelieve Leads and Shared Leads.  For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

11. Term and Termination

a. Term. This Agreement will apply for as long as you participate in the Agency Partner Program, until terminated.

b. Termination Without Cause.  Both you and we may terminate this Agreement on sixty (60) days written notice to the other party.

c. Termination of Inactive Partners.  If you are an Inactive Partner, then we may terminate this Agreement on thirty (30) days written notice to you.  If, within twenty-one (21) days from the date of such notice, you present us with a plan that will result in you becoming an Active Partner, we will consider this plan in good faith.  We may then choose to notify you in writing that we withdraw our notice of termination, in which case the Agreement will not terminate.

d. Termination for Cause.  We may terminate this Agreement and/or suspend your or the End User’s access to the Aelieve 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) 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, federal, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us (if you have one), 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 of this Agreement, and termination of this Agreement without cause by us or by you with cause, shall not affect our obligation to pay you a 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. We will not pay you fees on End User payments recognized by us after thirty (30) days after the date of such termination or expiration.  Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Revenue Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination.  Except as expressly set forth in this section, you are not eligible to receive a Revenue Share after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete all Aelieve Leads and Shared Leads if we provided them to you and you do not otherwise have consent from the applicable Aelieve Lead or Shared Lead to continue use of their data and information. Upon termination or expiration, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. 

Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all Aelieve badges and Agency Partner Program tier information and references 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 Agency Partner 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 Partner Marks.

13. Indemnification

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 Agency Partner Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of Optional Partner Programs, (e) your use of the Test Portal, or (f) our use of the Partner 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 AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE AELIEVE PRODUCTS, AELIEVE CONTENT, THE AGENCY PARTNER PROGRAM, THE OPTIONAL PARTNER PROGRAMS OR THE TEST PORTAL  FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE TEST PORTAL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE AELIEVE PRODUCTS, OPTIONAL PARTNER PROGRAMS , AND TEST PORTAL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE AELIEVE PRODUCTS,  THE OPTIONAL PARTNER PROGRAMS AND THE TEST PORTAL  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 TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED PARTNER TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

d. Test Portal and Optional Partner Programs. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE TEST PORTAL AND THE OPTIONAL PARTNER PROGRAMS THAT YOU USE.

15. Non-Solicitation

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 newspaper or other 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.

16. General

a. Amendment; No Waiver. We may update and change any part or all of this Agreement. If we update or change this Agreement, the updated Agreement will be posted at http://legal.aelieve.com/agency-partner-program-agreement and we will let you know through the Notification app in your portal. 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 do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. 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 the Commonwealth of Massachusetts, 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 state and federal courts in Boston, Massachusetts.

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 the United States and any other relevant local export laws and regulations may apply to the Aelieve Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.  You will not directly or indirectly export, re-export, or transfer the Aelieve Products to prohibited countries or individuals or permit use of the Aelieve Products by prohibited countries or individuals.

g. Data Processing. To the extent that any Personal Data is processed in connection with the Agency Partner Program the terms set forth in Exhibit A, which are hereby incorporated by reference, shall apply. 

h. 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.

i. 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 Aelieve, Inc.: Aelieve, Inc., 25 First Street, 2nd Floor, Cambridge, MA 02141, U.S.A. Attention: General Counsel

To you: your address as provided in our partner account information for you.

We may give electronic notices by general notice via the partner portal and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center in the partner portal. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

j. Entire Agreement. This Agreement is the entire agreement between us for Agency Partner Program and supersedes all other proposals and agreements (including all prior versions of the Aelieve Agency Partner Program Agreement, if any), 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 Aelieve Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Aelieve 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.

k. 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.

l. 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.

m. Program Policies.  We may change the Program Policies from time to time by updating our website. Your participation in the Agency Partner Program is subject to the Program Policies, which are incorporated herein by reference.

n. 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 Aelieve Products, our trademarks, or any other property or right of ours.

o. Sales by Aelieve. This Agreement shall in no way limit our right to sell the Aelieve Products, directly or indirectly, to any current or prospective customers.

p. 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.

q. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Revenue Share and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.

Exhibit A 

Aelieve – GDPR Data Processing Addendum (Partners)

This Data Processing Addendum (“Addendum“) sets out the terms that apply as between Aelieve and Partner when processing EEA personal data in connection with the Agency Partner Program.  This Addendum forms part of the Agency Partner Program Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Agency Partner Program Agreement (the “Agreement“) unless otherwise defined in this Addendum.  

1. Definitions: (a) “controller,” “processor,” “data subject,” and “processing” (and “process“) shall have the meanings given to them in Applicable Data Protection Law; (b) “Applicable Data Protection Law” means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law (in each case, as may be amended, superseded or replaced from time to time); (c) “EU Data Protection Law” means: (i) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR“); and (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) “Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.
2. Purposes of processing.  The parties acknowledge that in connection with the Partner Program, each party may provide or make available to the other party Personal Data.  Each party shall process such data: (i) for the purposes described the Agreement; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
3. Relationship of the parties. Each party will process the copy of the Personal Data in its possession or control as an independent controller (not as a joint controller with the other party). For the avoidance of doubt and without prejudice to the foregoing, Aelieve shall be an independent controller of any Personal Data that it receives or shares with Partner in connection with the Partner Program.
4. Compliance with law. Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data.  Neither party shall be responsible for the other party’s compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair and transparent, and shall make available to data subjects a privacy statement that fulfils the requirements of Applicable Data Protection Law.
5. International transfers.  Where Applicable Data Protection Law in the European Economic Area (“EEA“), and/or its member states, United Kingdom and/or Switzerland (collectively for the purposes of this Addendum, the “EU‘), applies to the Personal Data (“EU Personal Data“), neither party shall process any EU Personal Data (nor permit any EU Personal Data to be processed) in a territory outside of the EU  unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent Partner transfers EU Personal Data to Aelieve and Aelieve is located in a territory outside the EU that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law),  Aelieve agrees to abide by and process such EU Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915 (as amended, superseded or updated from time to time) (“Model Clauses“), which are incorporated by reference in, and form an integral part of, this Addendum. Aelieve agrees that it is a “data importer” and Partner is the “data exporter” under the Model Clauses (notwithstanding that Aelieve may be an entity located outside of the EEA).
6. Security:  Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorised disclosure or access (a “Security Incident“) and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of EU Data Protection Law/Applicable Data Protection Law.