The Channel Partner Program Terms (the “Agreement”) is entered into by and between ZenBusiness Inc., a Delaware public benefit corporation (the “Company”), and you (the “Partner”) (each a “Party” and collectively the “Parties”) and is made and entered into as of the date Partner is approved as a ZenBusiness Channel Partner (the “Effective Date”). Approval to participate in the Channel Partner Program is subject to the absolute discretion of the Company. If approved, the Company shall promote its products and/or services to a segment or all of Partner’s customers (the “Identified Partner Users”). In consideration of the mutual promises contained herein, the parties agree as follows:
1.1. Once approved, Company shall extend a mutually agreeable discounted offer (the “Special Offer”) to all Identified Partner Users based on the then-current list price offered to the general public on the Company website. All features and descriptions, including renewal prices, described therein remaining otherwise unchanged.
1.2. Partner will only disclose and promote the Special Offer to the following set of Identified Partner Users and will use a reasonable degree of care to avoid disclosure of the Special Offer to the general public. In particular, Partner agrees to not publish the Special Offer on public internet pages or include the Special Offer in communications not intended for the Identified Partner Users.
1.3. The Parties will cooperate in good faith to maximize the number of Identified Partner Users that redeem the Special Offer.
1.4. Subject to its Privacy Policy, Partner shall provide a list of the Identified Partner Users to Company with relevant contact details or other identifiable information. Partner represents and warrants that it has all requisite consents and approvals to disclose information related to the Identified Partner Users to the Company.
1.5. Company may revise its general list price and the Special Offer from time to time upon notice to the Partner.
2.1. No representation or warranty of any Party contained in this Agreement, or in any other document, certificate, information, exhibit or report provided by such Party in connection with the negotiation, execution and delivery of this Agreement, or other instrument delivered by such Party hereunder, contains any material misstatement of fact or omits a material fact that would impact a Party’s decision to enter into this Agreement.
2.2. Each Party acknowledges that it is not, by way of entering into this Agreement, a representative of the other Party and that it will not expressly or impliedly represent itself as such.
2.3. Each Party acknowledges that it has no authority to, and will not, bind the other Party by any promise or agreement, or incur any debt, expense, or liability whatever in the other Party’s name or account, or waive any of the provisions of policies administered by the other Party.
2.4. By performing their obligations under this Agreement, the Parties will not violate any law, regulation, rule, order or judgment or cause a breach or default under (with the giving of notice or lapse of time) any agreement or instrument to which they are, separately, a party.
2.5. Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party a non-transferable, non-sub licensable, revocable, limited right to take the following actions for the Term: (a) market the Special Offer subject to the restrictions set forth in Section 1; and (b) use the brand name and other visual assets or marketing collateral provide by the other Party including their logo, trademarks, service marks, photos, visuals, imagery, and trade name (collectively, the “Marks”) solely in connection with the services contemplated hereunder.
3.1. Definition. “Confidential Information” includes, but is not limited to: (a) any information, technical data or know-how, relating to ideas, concepts, equipment, product plans, designs, research, and development; (b) business methods, business plans or opportunities, business strategies, future projects or products, projects or products under consideration, procedures; (c) the terms of this Agreement but not its existence; (d) information related to finances, costs, prices, budgets, vendors, contractors, and employees; and (e) information described above that a Party obtains from a third party and treats as proprietary or confidential information. Confidential Information includes any notes, analyses, compilations, studies, summaries, and other material, however documented, containing or based, in whole or in part, on any information described above. Any document or other material provided by either Party to the other that is labeled “Confidential” is Confidential Information, as defined in this Agreement, although such labeling is not required for a document or other material to be considered Confidential Information under this Agreement. For purposes of this Section 3, “Agents” means a Party’s and its successors and permitted assigns, its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors who have a need to access Confidential Information and who have executed a written agreement binding them to obligations of confidentiality at least as restrictive as the obligations set forth in Section 3 of this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall prohibit a Party from creating services or products similar to, or competitive with, the other Party provided that it does not use the other Party’s Confidential Information in doing so.
3.2. Exceptions. Each Party acknowledges and understands that, except as set forth in this subsection 3.2, any and all Confidential Information of a Party (the “Disclosing Party”) which is disclosed to the other or is otherwise obtained by the other (the “Receiving Party”) in connection with this Agreement is confidential and proprietary. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) is in the public domain or otherwise available to the public, unless it is in the public domain or otherwise available to the public through a breach of this Agreement or a similar confidentiality or non-disclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party only if evidenced by written records kept in the ordinary course of business or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
3.3. Use. Each Party recognizes the importance of the other’s Confidential Information. In particular, each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 3 and elsewhere in this Agreement. Accordingly, each Party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to avoid disclosure or use of the Disclosing Party’s Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance, which shall not be less than the standard of care imposed by applicable laws and regulations relating to the protection of such information and, in the absence of any legally imposed standard of care, the standard shall be that of a reasonable person under the circumstances; (b) the Receiving Party may disclose or provide access to Confidential Information to its Agents who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; and (c) the Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement, including without limitation written instruction to and agreements with Agents who are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement to ensure that such Agents protect the confidentiality of Confidential Information.
3.4. Permitted Disclosure. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will promptly notify the Disclosing Party in writing. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide reasonable assistance to the Disclosing Party regarding such measures, at the Disclosing Party’s cost and expense. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
4.1. This Agreement, together with any addenda hereto, shall continue for twelve (12) months or until terminated by either Party pursuant to this section (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for additional twelve (12)-month terms unless terminated by either Party pursuant to this section (with the Initial Term, the “Term”).
4.2. This Agreement, together with any addenda hereto, shall terminate immediately in an Event of Default (as later defined) which, if curable, is not cured within ten (10) days of prior written notice to the allegedly breaching Party.
4.3. Either Party may terminate this Agreement at any time for any reason, and without penalty, by providing the other Party with sixty (60) days’ advance written notice. During this notice period all remaining terms and conditions of this Agreement shall remain in full force and effect.
5.1. An “Event of Default” shall be deemed to have occurred if any of the following shall have occurred:
5.1.1. A Party breaches one or more provisions of this Agreement; or
5.1.2. A Party is fined, sanctioned, censured, or subjected to legal or administrative proceedings brought by any state or federal regulatory agency or a self-regulatory organization; or
5.1.3. A Party files a petition in bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or a receiver or custodian is appointed for the Party or for a substantial portion of the Party’s assets, and in the case of any of the foregoing which is an involuntary proceeding or is initiated against the Partner, such proceeding is not dismissed within sixty (60) calendar days of the date of the filing thereof; or
5.1.4. Any representation or warranty made by the Party in this Agreement or in any statement or certificate furnished by it to Company pursuant hereto is untrue or misleading in any respect as of the date of the issuance or making thereof.
SECTION 6: General
6.1. Governing Law. The substantive laws of the State of Texas (and not its conflicts of law principles) govern all matters arising out of, or relating to, this Agreement and all of the transactions it contemplates, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Partner hereby irrevocably agrees that the exclusive forum for any suit, action or other proceeding arising out of or in any way related to this Agreement shall be in the state or federal courts in Travis County, Texas, and Partner agrees to the exclusive personal jurisdiction and venue of any court in Travis County, Texas and waives any defense thereto.
6.2. Limitation of Liability. Except as provided herein, in no event will either Party, or its affiliates, independent contractors, employees, partners, licensors, or suppliers be liable to the other Party for any incidental, indirect, punitive, special or consequential damages (including lost profits or lost business opportunity) that the other Party may incur or experience by reason of its having entered into or relied on this Agreement, or arising out of the performance of this Agreement, even if the Party to be charged was advised or knew of the possibility of such damages. The foregoing limitation will apply regardless of the form of the claim(s), in which such liability may be asserted, whether in contract, tort (including negligence) or otherwise.
6.3. Third Party Beneficiaries. The Parties do not intend to create any third-party beneficiaries through any provision herein. No entities other than signatories or the estate of signatories, where applicable, shall have standing to enforce this Agreement.
6.4. Headings. The headings in this Agreement are for convenience only and will not control or affect the meaning or construction of the provisions of this Agreement.
6.5. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one agreement. Photocopies, facsimile, email or other electronic transmissions of PDF files of executed documents and signatures shall be deemed original documents and signatures and shall be fully binding on the Parties to the same extent as original documents with original signatures.
6.6. Amendment; Waiver. The rights and obligations of the Parties under this Agreement may be waived (either generally or in a particular instance, either retroactively or prospectively, and either for a specified period of time or indefinitely) or amended if and only if such waiver or amendment is consented to in writing by each of the Parties hereto. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. The failure to enforce any provision of this Agreement shall not be deemed to be a waiver of such provision.
6.7. Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof is held by a court of law to be in violation of an applicable local, state or federal ordinance, statute, law administrative or judicial decision, public policy or for any other reason, and if such court should declare such provision of this Agreement to be illegal, invalid, unlawful, void, voidable, or unenforceable as written, then such provision shall be given full force and effect to the fullest extent that is legal, valid and enforceable, and the remainder of this Agreement shall be construed as if such illegal, invalid, unlawful, void, voidable or unenforceable provision was not contained herein, and the rights, obligations and interests of the Parties under the remainder of this Agreement shall continue in full force and effect. If any provision is held to be unenforceable, the court making such determination shall have the power to, and shall, modify such provision to the minimum extent necessary to make such provision, as so modified, enforceable, and such provision shall then be applicable in such modified form.
6.8. Notices. All notices, demands, requests, or other communications that may be or are required to be sent by any Party to any other Party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, or transmitted by fax transmission (with confirmation by email) or electronic mail to the Partner at the address provided on the sign up page and to ZenBusiness at: 5511 Parkcrest, Suite 103, Austin, TX 78731 Attn: General Counsel, Email: legal@zenbusiness.com
Each Party may designate by notice in writing a new address to which any communication shall thereafter be so given, served or sent. Each notice, demand, request, or communication that shall be hand delivered, sent, mailed, faxed or e-mailed in the manner described above, or that shall be delivered to a Party shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a facsimile or email) the answer back being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
6.9. Assignment; Rights and Benefits; Subsequent Owners. PARTNER SHALL NOT ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, IN WHOLE OR IN PART, WHETHER BY OPERATION OF LAW OR OTHERWISE, WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY AND ANY SUCH ASSIGNMENT CONTRARY TO THE TERMS HEREOF SHALL BE NULL AND VOID AND OF NO FORCE AND EFFECT. THIS RESTRICTION SHALL NOT LIMIT ASSIGNMENT, SUBJECT TO WRITTEN PRIOR NOTICE TO COMPANY, TO ANY AFFILIATE OF PARTNER OR TO ANY SUCCESSOR OF THE ENTIRE BUSINESS OF PARTNER.
6.10. Electronic Signatures. Any signature (including any electronic symbol, checkbox or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to this transaction, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law.
6.11. Survival. Sections 2.1, 2.2, 2.3, 2.4, 3, and 6 shall survive any expiration or termination of this Agreement.
6.12. Entire Agreement. This Agreement sets forth the entire understanding and agreement of the Parties as to the subject matter of this Agreement and supersedes any and all prior and contemporaneous agreements, understandings, negotiations, and discussions between the Parties, and all such matters are merged into this Agreement.
