WHEREAS, Ortto has created the Ortto Platform to enable merchants to launch and operate professional online stores using the Services;
WHEREAS, Ortto has created a Partner Program to enable Partners to refer customers to Ortto in exchange for commissions and other benefits provided by Ortto from time to time; and
WHEREAS, Partner desires to participate in the Partner Program to market and promote the Services and refer merchants to Ortto, on the terms and conditions set forth below.
NOW, THEREFORE, Ortto and the entity identified in Partner’s registration on the Partner Portal (“Partner”) agree to the following terms for Partner’s participation in the Partner Program:
“Affiliate” means with respect to a party, an entity which controls, is controlled by, or is under common control with such party. For purposes of this definition, the term “control” means: (a) beneficial ownership of at least 50% of the voting securities of a corporation or other business organization with voting securities (or such lesser percentage which is the maximum allowance by a foreign corporation in a particular jurisdiction), (b) a 50% or greater interest in the net assets or profits of a partnership or other business organization without voting securities, or (c) the ability to direct the affairs of any such entity.
“Ortto” means AutopilotHQ, Inc.
“Ortto Platform” means the SaaS-based marketing automation and customer data platform created by Ortto and all intellectual property contained therein.
“Ortto Site” means the website located at www.ortto.com and related Ortto websites and pages.
“Commissions” means the compensation that Ortto provides to Partner for a Referred Customer, based on the Partner Tier.
“Credentials” means the usernames, passwords, and other authentication credentials used by Partner to access its Partner Program account.
“Intellectual Property” or IPR means all present and future rights anywhere in the world in or to any patent, copyright, database rights, registered design or other design right, utility model, Trademark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.
Partner Program means Ortto’s then current partner program, describing among other things, Partner benefits and commissions.
“Partner Portal” means that part of the Ortto Site used by Ortto to manage participation in the Partner Program.
“Partner Tier” means the then-current Partner Program level for which Partner meets all listed criteria, as more particularly described in the Program Guide.
“Program Guide” means the then-current Partner Program Guide located at https://ortto.com/partners/ that details, among other things, the enrollment and participation requirements of the Partner Program, tiers of participation, benefits at each tier, revenue share, fees, and marketing and sales responsibilities.
“Prospect” means a prospective customer that Partner believes in good faith is interested in purchasing Services and who Partner registers on the Partner Portal, as further described in the Program Guide.
“Referred Customer” means a Prospect that: (a) is accepted by Ortto, and (b) purchases Services directly from Ortto within 6 months of Ortto’s written acceptance.
“Services” means the products and services made available through the Ortto Platform that enable merchants to launch and operate professional online stores.
“Services Agreement” means an agreement directly between Ortto and the Referred Merchant setting forth the terms related to the Referred Merchant’s purchase, receipt, and use of Ortto Services.
“Trademarks” means those Ortto trademarks, marks, trade names, service marks, logos, marketing messages and other proprietary words, symbols and branding that are identified in the Program Guide as being available for use by Partner in connection with the Partner Program.
2. PROGRAM PARTICIPATION & COMMISSIONS
Participation. Partner’s participation in the Partner Program is subject to the terms and conditions of this Agreement, as well as those contained in the Program Guide (which are incorporated herein by this reference).
Registration. In order to participate in the Partner Program, Partner must first register with, and be accepted by, Ortto. Partner warrants that all information submitted at the time of registering is true, complete and accurate and will update such information through the Partner Portal to ensure such information is and remains current throughout the Term. When registering, Partner will designate a primary contact person who will serve as Partner’s primary business contact for this Agreement (“Primary Contact”). Partner may change its Primary Contact in the Partner Portal.
Credentials. Upon acceptance into the Partner Program, and for the Term, Ortto will establish and maintain a unique Partner Program account for Partner within the Partner Portal and will provide Partner with Credentials for such account. Partner will securely store all Credentials, will not share Credentials with any third party. Partner accepts, and will be responsible for all activities carried out using such Credentials. Partner will promptly notify Ortto if its Credentials have been compromised.
Marketing. Ortto authorizes Partner, during the Term, to promote and market the Services and refer Prospects to Ortto on a non-exclusive basis. Partner will actively market and promote the Services to Prospects. Ortto will provide Partner with marketing support in connection with marketing the Services to Prospects, as identified in the Program Guide. Any marketing activities undertaken by either party will be at their sole expense.
Commissions. The structure, calculation, eligibility, payment, and other terms and conditions related to the Commissions available under the Partner Program are set forth in the Program Guide, including commission adjustment credits in the event of a refund by Ortto to Referred Customer or adjustments to the Referred Customer’s plan, and the periods in which commissions accrue. All commissions are payable in accordance with this Agreement. Ortto may determine the commission due to Partner in each case in its absolute discretion. Ortto’s determination is final.
Payments. For such time as the Partner remains in the Partner Program, all commissions, which are payable as described in the Program Guide, Ortto will make best efforts to pay the commission to the Partner within 10 business days of the end of each month based on the total amount of realized revenue derived from the Partner’s referred paid customers during that month. For annual subscriptions, the commission for each year is paid within 10 business days of the end of the month in which payment of the annual fee is paid by the customer. within thirty (30) days of validation by Ortto of realized revenue forming the basis of the commission in accordance with the Partner Program. The Partner will provide PayPal account details to Ortto to receive such payments. Ortto has satisfied its payment obligation if it pays into the account provided by the Partner. Payments may be made electronically.
VAT or GST. Any consideration to be paid or provided for supply made under or in connection with this Agreement, unless specified otherwise, does not exclude an amount on account of VAT GST or consumption taxes.
Changes. Ortto reserves the right, at any time, and in its discretion, to change, modify, add to, or remove portions of the Agreement or Program Guide (which may include, without limitation, changes to the structure and calculation of Commissions and the benefits offered in connection with the Partner Program), and to discontinue all or any part of the Partner Program (collectively “Changes”). Ortto will notify Partner of any substantive Changes through the Partner Portal. Partner’s continued participation in the Partner Program following notice of the Changes will mean that Partner accepts and agrees to the Changes. Such Changes will be applied on a prospective basis, beginning on the date notice of the Changes is provided through the Partner Portal. Partner is responsible for checking the Partner Portal on a regular basis.
3. PROSPECT REGISTRATION
Prospect Registration. To register a Prospect, Partner must first submit a registration request through the Partner Portal identifying the Prospect, and Partner must receive a registration confirmation from Ortto. Ortto will apply reasonable efforts to accept or reject Partner registration requests via email to the Primary Contact within three (3) business days. Ortto may reject a registration request if the Prospect is, in Ortto’s sole judgement: (a) the subject of a then-active direct sales effort by Ortto or another Ortto partner, (b) already registered, (c) the issuer of a public request for proposal, (d) not a desirable customer for credit or legal reasons, (e) unable or unwilling to comply with Ortto’s acceptable use policies, or (f) unacceptable to Ortto for any other reason. Ortto’s determinations in respect of the Partner Program are final.
Services Agreement. Partner is not a party to, and will not have any rights in connection with, Service Agreements. Ortto may modify, terminate, or refuse to enter into a Services Agreement with any Prospect at its sole and complete discretion.
No Representations. Partner’s rights to represent Ortto are limited to those described in this Agreement only. Partner will not make any representations or warranties concerning the quality, performance, or other characteristics of the Services, other than those which are consistent in all respects with, and do not expand the scope of, those representations and warranties Partner is authorized to make pursuant to the Program Guide. Aside from the foregoing, Partner has no authority to represent Ortto.
4. TRADEMARKS AND INTELLECTUAL PROPERTY
Limited Trademark License. Ortto Trademarks may be made available to Partner for promotion of the Services only and for no other purpose, provided Partner meets the criteria set forth in the Program Guide. If Partner meets such criteria, Ortto grants to Partner, during the Term, a non-exclusive, non-transferable, non-assignable, revocable, limited, royalty-free license to use the applicable Trademarks solely in connection with the Partner Program. Partner will comply with Ortto’s guidelines for the use of the Trademarks as set forth in the Program Guide and will reasonably cooperate with Ortto in facilitating Ortto’s monitoring of such use. Ortto is the sole owner of the Trademarks, and Partner will not acquire any right, title or interest in the Trademarks as a result of Partner’s use of the Trademarks. Partner will not (a) adopt, use, register, or attempt to register any name, trademark, domain name or other designation that includes all or any part of a Trademark or any term that is confusingly or substantially similar, (b) alter, animate or distort the Trademarks nor combine them with any other symbols, words, images or design elements (including, without limitation, those of Partner), or (c) challenge or assist others to challenge the Trademarks or the registration thereof. Partner understands and agrees that any and all goodwill associated with Partner’s use of the Trademarks will inure to the benefit of Ortto vest in and be assigned to Ortto. Upon termination or expiration of this Agreement, or Partner’s failure to continue to meet the use criteria, the foregoing license will automatically terminate, and Partner will cease to use the Trademarks. Ortto will have the right to immediately suspend or terminate Partner’s use of the Trademarks if Partner’s usage is improper or inconsistent with the terms of this Agreement or Program Guide, Partner is otherwise in breach of this Agreement or Program Guide, or Partner fails to meet the applicable criteria at any time during the Term or for any other reason. Upon termination or expiration of this Agreement, Partner remains liable to pay to Ortto any amount of commission in respect of which an adjustment applies in accordance with the Program Guide, which amounts shall be payable in full by Partner to Ortto’s nominated bank account within thirty (30) days of written demand from Ortto without setoff or counterclaim.
Intellectual Property. For the avoidance of doubt, as between the parties, Ortto owns, and will continue to own, all Intellectual Property Rights, title and interest in and to the Ortto Platform, Ortto Site, Partner Portal, Services, Trademarks, and any and all Ortto materials provided or made available to Partner under or in connection with the Partner Program, including all accompanying worldwide Intellectual Property rights. Partner receives no rights in the foregoing. Ortto reserves all rights not expressly granted to Partner under this Agreement.
Advertising and Publicity. Partner will not issue any press releases or media statements or make any public announcements with respect to this Agreement and Partner’s relationship with Ortto without Ortto’s prior written express consent or as otherwise described and authorized in the Program Guide. Ortto will request Partner’s permission if Ortto plans to use Partner’s name or corporate logos or identity in advertisements or promotions relating to the Partner Program. Partner will not unreasonably withhold or delay Partner’s permission. If Ortto does not receive Partner’s response within 30 days, then Partner will be deemed to have granted Partner’s permission. Notwithstanding the foregoing, Partner consents to Ortto’s use of Partner’s name in public lists of Ortto’s partners.
5. TERM AND TERMINATION
Term. This Agreement commences on the Effective Date and will continue in effect for a period of one year (the “Initial Term”). This Agreement will renew automatically for successive one-year periods (each a “Renewal Term”) unless either party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the conclusion of the then-current Initial or Renewal Term. The Initial Term, together with all Renewal Terms, comprise the “Term”).
Termination by Ortto. Ortto may terminate this Agreement for any of the following reasons: (a) at any time in Ortto’s sole discretion on 30 days prior written notice, (b) for Partner’s breach of this Agreement and failure to cure such breach within 30 days of Ortto’s written notice of such breach, or (c) immediately upon written notice for Partner’s breach of Section 4 (Trademarks and Intellectual Property), Section 10 (Covenants of Partner), or Section 11 (Miscellaneous, Compliance with Laws).
Termination by Partner. Partner may terminate this Agreement (a) at any time upon 30 days prior written notice, or (b) for Ortto’s breach of this Agreement and failure to cure such breach within 30 days of Partner’s written notice of such breach.
Effect of Termination. Upon termination of this Agreement, each party will promptly return to the other party in such format as reasonably requested by the rec, or destroy at the disclosing party’s written direction, all materials and any Confidential Information that has been supplied to it by the other party. The parties understand and agree that the receiving party may have computer systems that automatically create back-up records, and such back-up records may contain Confidential Information. In such case, the receiving party may retain the Confidential Information, as contained in the back-up record, for the period it normally archives backed-up records, and all relevant provisions of this Agreement will continue to apply to such Confidential Information until it is destroyed or returned. Neither party will be liable to the other for any costs, expenses, or damages resulting from termination of this Agreement for convenience. Partner’s right, if any, to receive Commissions post-termination will be as set forth in the Program Guide. The rights and obligations of the parties contained in Section 4 (Trademarks and Intellectual Property, Intellectual Property), Section 5 (Term and Termination, Effect of Termination), Section 5 (Term and Termination, Non-Exclusive Remedy), Section 6 (Representations and Warranties, Disclaimers), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality), Section 10 (Covenants of Partner, No Referred Customer Targeting) (for the duration stated therein), and Section 11 (Miscellanous, Governing Law), and those portions of the Program Guide to the extent required to carry out the rights and obligations set forth in this Agreement, will survive the termination of this Agreement.
Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination of this Agreement by either party will be a non-exclusive remedy and will be without prejudice to any other right or remedy available to such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
Mutual Representations. Each party represents and warrants to the other party that: (a) it has the right to enter into this Agreement and to perform its obligations hereunder, (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with, or constitute a material breach or default of, any organizational document, agreement, or other writing to which it is a party, and (c) it has all licenses, permissions and agreements necessary or appropriate to perform its obligations under this Agreement.
Partner Representations. Partner represents and warrants to Ortto that: (a) all information Partner provides in connection with the Partner Program and this Agreement, including the information on the Partner Portal, is true, correct, and complete, and Partner will promptly update such information with respect to any applicable changes, (b) Partner has not been and is not currently the subject of any investigation or legal proceeding of any kind in relation to spamming or the violation of any consumer protection or deceptive trade practices laws or regulations, and (c) it will comply with and remain in compliance with the anti-corruption, export control, and import compliance requirements set forth in the Compliance Supplement attached hereto as Appendix A (“Compliance Supplement”).
Disclaimers. PARTNER’S EFFORT AND RESULTING PERFORMANCE IN THE PARTNER PROGRAM ARE COMPLETELY UNDER PARTNER’S CONTROL. ORTTO DOES NOT GUARANTEE PARTNER’S SATISFACTION WITH THE PARTNER PROGRAM OR FAVORABLE RESULTS. EXCEPT FOR LOSS AND DAMAGE WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW (a) THE ORTTO PLATFORM, THE ORTTO SITE, THE SERVICES, THE PARTNER PROGRAM, THE PARTNER PORTAL, THE TRADEMARKS, AND ANY ORTTO MATERIALS PROVIDED BY ORTTO TO PARTNER ARE PROVIDED “AS IS,” AND ARE PROVIDED WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND (b) ORTTO DISCLAIMS ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES AND SUPPLIERS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY. THIS LIMITATION INCLUDES, BUT IS NOT LIMITED TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TIMELINESS, OR ANY IMPLIED WARRANTY OR CONDITIONS ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ORTTO MAY FROM TIME TO TIME ARRANGE FOR THIRD- PARTY PRODUCTS AND SERVICES TO BE MADE AVAILABLE TO ITS PARTNERS ON AN OPTIONAL BASIS UNDER OR IN CONNECTION WITH THE PARTNER PROGRAM. ORTTO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING ANY THIRD-PARTY PRODUCTS OR SERVICES. THIS LIMITED WARRANTY GIVES SPECIFIC LEGAL RIGHTS. THE PARTIES MAY HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
Ortto Indemnity. Ortto will, at its own expense, indemnify, defend and hold harmless Partner and its Affiliates, and its and their officers, directors, employees, agents, and contractors (“Partner Indemnitees”) from and against all third-party claims, actions, liabilities, damages, costs or expenses, including attorneys’ fees and costs, awarded against Partner Indemnitees, or agreed upon by Ortto in settlement, to the extent arising from: (a) any action or omission of Ortto constituting willful misconduct or fraud, (b) any failure by Ortto to comply with applicable laws or industry regulations, or (c) a claim that the Ortto Trademarks infringe such third party’s rights.
Partner Indemnity. Partner will, at its own expense, indemnify, defend and hold harmless Ortto and its Affiliates, and its and their officers, directors, employees, agents, and contractors (“Ortto Indemnitees”) from and against all third party claims, actions, liabilities, damages, costs or expenses, including reasonable attorneys’ fees and costs, awarded against Ortto Indemnitees, or agreed upon by Partner in settlement, to the extent arising from or related to: (a) any action or omission of Partner constituting willful misconduct or fraud, (b) any failure by Partner to comply with applicable laws or industry regulations, (c) breach by Partner of Section 10 (Covenants of Partner, Partner Conduct), or (d) breach by Partner or Relevant Persons of the Compliance Supplement.
Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the third-party claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, all assistance reasonably necessary for the defense and settlement of the claim. The failure to provide timely notice or assistance will only relieve the indemnifying party of its obligations if, and only to the extent, such failure materially and adversely prejudices the ability of the indemnifying party to defend such third-party claim. The indemnifying party will have control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of a claim without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnifying party settle any claim without the written consent of the indemnified party (which consent will not be unreasonably withheld or delayed). The indemnified party may engage counsel of its choice at its own expense.
8. LIMITATION OF LIABILITY
Limitations. SUBJECT TO SECTION 8 (LIMITATION OF LIABILITY, LIMITATIONS EXCLUSIONS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (a) ANY LOST OR PROSPECTIVE PROFITS OR SAVINGS OR REVENUE, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER SUCH DAMAGES ARE ALLEGED UNDER STATUTE IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY (IN EACH CASE INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (b) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE COMMISSIONS PAID OR PAYABLE BY ORTTO TO PARTNER DURING THE INITIAL OR RENEWAL TERM DURING WHICH THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
Limitations Exclusion. The limitations on liability set forth in Section 8 (Limitation of Liability, Limitations) will not apply: (a) to a party’s breach of its confidentiality obligations, (b) to a party’s indemnification obligations, or (c) to limit a party’s liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by negligence.
Each party agrees that it will hold in confidence, and will not use or disclose (except as expressly allowed herein), all “Confidential Information” of the other party. For purposes of this agreement, Confidential Information will include all business, technical, and financial information one party obtains from the other, including without limitation (a) all information which is obtained from the other party and which is marked “confidential” or “proprietary” and/or which is of confidential nature, (b) the source code, object code, and algorithms, contained in the software and technology used by either party to provide its services and/or products, and (c) any lists of a party's customers or data related thereto (excluding Prospects). However, neither party will be obligated under this Section with respect to information: (i) that is or has become generally available or known to the public through no fault of the recipient, (ii) that is developed independently by the recipient without reference to the other party's Confidential Information, (iii) that was rightfully received by the recipient without obligation of confidentiality from a third party, or (iv) that was in the recipient’s possession prior to its disclosure by the other party, as evidence by the recipient's written records. A party may disclose the Confidential Information of the other party if required by law, provided that the disclosing party gives the owner of the Confidential Information prompt written notice of the request for disclosure, gives the owner the opportunity to obtain a protective order or other remedy, and discloses only that portion of the Confidential Information which, upon the reasonable advice of legal counsel, it is legally compelled to disclose. Each party may disclose the terms and conditions of this Agreement, on a confidential basis, to its legal or financial advisors, and in connection with any financing transaction or due diligence inquiry. Disclosure of Confidential Information in accordance with this Agreement shall be on a strict ‘need to know’ basis.
10. COVENANTS OF PARTNER
No Referred Customer Targeting. During the Term of this Agreement and for a period of one year after termination, Partner will not engage in any activity, either alone or in connection with other parties, with the intent of offering Referred Customers services which are a substitute for the Services. The foregoing will not: (a) prohibit or restrict Partner from soliciting or offering services similar to or competitive with the Services to any third parties through either internet, print or other types of general advertising (provided such advertising is not targeted at Referred Customers), (b) prohibit or restrict Partner from soliciting a Referred Customer for services other than the Services, or (c) prohibit or restrict a Referred Customer from independently switching to services which are a substitute for the Services.
No Employee Solicitation. During the Term of this Agreement and for a period of one year after termination, Partner will not solicit or encourage, directly or indirectly, any employee of Ortto to terminate his or her employment with Ortto or otherwise interfere with the employment relationship between Ortto and such employee. Notwithstanding anything to the contrary in this Section 10 (Covenants of Partner, No Employee Solicitation), nothing will prohibit or restrict Partner from engaging, directly or otherwise, in generalized searches for employees by use of advertisements in any medium or to engage firms to conduct such searches, so long as such search firms do not target or focus on Ortto or its employees.
Partner Conduct. Partner will: (a) not conduct its business in a manner that would reflect unfavorably on Ortto, (b) not engage in any deceptive, misleading or unethical practices, (c) not engage in any practice that might be detrimental to Ortto, including but not limited to disparagement of Ortto or its products and services or any activity which would have a negative impact on the good name and reputation of Ortto, (d) not make false or misleading representations regarding Ortto or its products and services, (e) not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material (although Partner is not responsible for any unaltered publication or employment of materials provided to Partner by Ortto) or other unauthorised Partner communication affecting Ortto, and (f) not make any representations, warranties or guarantees to Prospects, Referred Merchants, or the trade generally with respect to Ortto, the Services, or the Partner Program which are inconsistent with those contained in the marketing literature provided by Ortto. Further, Partner will comply with the Code of Conduct set forth in the Program Guide. This provision will survive the termination of this Agreement for a period of one year.
Basis of Bargain. The Partner acknowledges that the restrictions set forth in this Section 10 (Covenants of Partner) are reasonable and necessary to protect Ortto’s goodwill and other business interests, and Partner’s compliance therewith is fundamental to Ortto’s willingness to allow Partner to participate in the Partner Program.
Injunctive Relief. Partner acknowledges that any breach by it of its confidentiality obligations or its covenants would cause Ortto immediate and irreparable harm for which there is no adequate remedy at law, and that Ortto will therefore be entitled to obtain immediate injunctive relief (without the necessity of proving actual damages or posting a bond) in addition to any other remedies which may be available.
Notices. Ortto may provide notices to Partner via the Partner Portal or via a communication method specified in the Program Guide, and such notices will be deemed given when posted. All other notices under this Agreement will be in writing, and will be deemed given when personally delivered, when sent by confirmed fax, or three business days (five business days for international addresses) after being sent by prepaid certified or registered mail, or one business day (two business days for international addresses) after being sent by overnight or express courier to Ortto’s address set forth below (or such other address as Ortto last provided to Partner pursuant to this Section), and to the Partner Primary Contact and address provided by Partner on the Partner Portal (or such other Partner Primary Contact and address as updated by Partner on the Partner Portal):
1390 Market Street, Suite 200, San Francisco CA 94102
Status. Each party will be and act as an independent contractor and not as partner, joint venturer, agent, or employee of the other. In keeping with industry usage, this Agreement colloquially refers to the terms "Partner" and "Partner Program"; nonetheless, these terms are used without any intent to denote a legal partnership. The parties are merely referring to their independent contractor status in a lay usage of "partner." Nothing contained in this Agreement shall be construed as creating an exclusive relationship between Partner and Ortto. Except as otherwise expressly set forth herein or in the Program Guide, each party will bear its own costs and expenses of its performance under this Agreement.
Assignment. Partner will not have any right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, without the prior express written consent of Ortto, (and any such attempt will be void), which consent may be withheld in Ortto’s sole discretion. A change of control of Partner will be deemed an assignment for purposes of this Section. Ortto may freely assign or transfer this Agreement without Partner’s consent, and Partner will execute any agreement perfecting such assignment or transfer, including consenting to a novation where requested by Ortto. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights unless in a writing signed by the waiving party, and such waiver will not constitute a waiver of any future obligation to comply with such provision.
Force Majeure. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. Each Party will seek to mitigate the effects of Force Majeure, and communicate both the Force Majeure event(s) and the efforts to mitigate.
Compliance with Laws. Each party will comply with all applicable federal, state, provincial, and local laws, rules, and regulations in performing its obligations under this Agreement, including, without limitation, all applicable export control laws and regulations. Partner is required to establish and maintain a corporate policy which communicates internally the need for compliance with applicable anti-bribery and corruption law, sets out good practices that Partner staff should follow, and that rigorously enforces any breach of such policy or the law.
Severability. In the event that any provision of this Agreement is determined to be invalid or unenforceable by a body of competent jurisdiction, that provision will be limited or severed only as necessary to eliminate such invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law provisions thereof and the parties hereby submit to exclusive jurisdiction and venue in the United States Federal District Courts, or any of the state courts, located in Northern District of California. Each party hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions and further waives any claim that such action is brought in an improper or inconvenient forum. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY, FROM WHATEVER SOURCE ARISING, IN CONNECTION WITH ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Construction. Headings herein are for convenience of reference only and will in no way affect interpretation of the Agreement. No provision of this Agreement will inure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party. Each of the individuals executing this Agreement on behalf of a party individually represents and warrants that he or she has been authorized to do so and has the power to bind the party for whom they are signing.
Entire Agreement. This Agreement, the Program Guide, and all other documents referenced herein or therein, comprise the complete agreement between the parties relating to the subject matter of this Agreement and supersedes all proposals, oral or written, any letters of intent, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. Other than as set forth in Section 2 (Program Participation & Commissions, Changes), (i) no changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties, and (ii) only an officer of Ortto is authorized to modify this Agreement or to make any warranty, representation or promise on behalf of Ortto. In the event of any conflict between the terms and conditions of the Program Guide and the terms and conditions of this Agreement, the terms and conditions of the Program Guide will govern and control. The parties hereby agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement.
Termination of Existing Partner Agreement. This Agreement supersedes any existing agreements, whether written or oral, between Partner and Ortto in which Ortto has agreed to pay Partner a commission or referral fee, or other benefits in exchange for Partner referrals (“Prior Agreements”), and Partner hereby agrees that any such Prior Agreements are terminated effective as of the Effective Date of this Agreement. Partner referrals occurring under any such Prior Agreements will become subject to the terms of this Agreement on the Effective Date of this Agreement. By execution of this Agreement, Partner hereby waives any right to receive commissions or referral fees pursuant to any Prior Agreements for Referred Customers accruing after the Effective Date of this Agreement and waives any rights to notice set forth in any such Prior Agreements.
“Applicable Laws” means the FCPA, the U.S. Travel Act, the U.S. Domestic Bribery Statute contained in 18 U.S.C. §201, the Money Laundering Control Act (1986), the Uniting and Strengthening America by Providing Appropriate Tools to Restrict, Intercept, and Obstruct Terrorism Act of 2001 (the USA PATRIOT Act), the U.S. Export Administration Regulations (15 C.F.R. §§730 et seq.), U.S. sanctions contained in 31 C.F.R. Parts 500-599, the UK Bribery Act 2010, the UK Proceeds of Crime Act 2002, and any other anti- corruption, anti-bribery, anti-kickback, anti-fraud, anti-money laundering, anti-terrorist financing, anti- narcotics, anti-boycott, export control, sanctions, embargo, import control, customs, tax, insider trading, insurance, banking, false claims, anti-racketeering, or other law, regulation, decree, government or executive order, or judicial or administrative decision or determination worldwide, to the extent applicable.
“FCPA” means the U.S. Foreign Corrupt Practice Act of 1977, as amended.
“Knowing” means consistent with the FCPA that with respect to a conduct, circumstance, or result, a person (i) is aware that such person is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; (ii) has a firm belief that such circumstance exists or that such result is substantially certain to occur; (iii) is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist; or (iv) consciously disregarded, was willfully blind, or was deliberately ignorant of such conduct, circumstance, or result.
“Politically Exposed Person” means (i) an official, director, officer, employee, agent or representative of any government, military, state-owned or affiliated entity or organization (including, but not limited to, a sovereign wealth fund), or any department, agency, corporate entity, instrumentality, or political subdivision of any government or military; (ii) any person or commercial entity acting in an official capacity for or on behalf of any government, military, or state-affiliated entity; (iii) any candidate for political office, any political party, or any official, employee, or agent of a political party; (iv) any officer, employee, agent or representative of any public international organization such as the United Nations or the World Bank; or (v) any relative of the foregoing persons.
“Relevant Persons” means a party’s direct or indirect owners, directors, officers, employees, representatives, brokers, consultants, agents, subresellers, subdistributors, suppliers, or other business partners (if any).
2. Legal Compliance. Partner represents, warrants, and covenants to Ortto the following with respect to Partner’s relationship with Ortto under this Agreement or otherwise:
Applicable Laws. Partner has complied with and will continue to comply with, and will not cause Ortto or its affiliates to be in violation of Applicable Laws. Partner will not use the Partner Program, or any Services available through the Partner Program, to violate Applicable Laws.
Anti-Corruption Compliance. Partner has not and shall not, with a corrupt, illegal, or improper intention, directly or indirectly offer, promise, authorize, pay, give, solicit or accept any money, favor, gift, gift card, hospitality, entertainment, travel benefit, job/internship, scholarship, loan, property, sponsorship, donation, salary, commission, fee, discount, financial or other advantage, bribe, kickback, or anything else of value to or from a Politically Exposed Person or any other individual or entity, whether in the public or private sector, (i) for purposes of obtaining, retaining, or directing business, contracts, sales, purchase orders, change orders, licenses, permits, approvals, tax assessments, inspection results, decisions, or any other improper benefit, (ii) to induce the improper performance of a relevant function or activity, (iii) as a reward for the improper performance of a relevant function or activity, (iv) with the knowledge or belief that the acceptance of the financial or other advantage or thing of value would itself constitute an improper performance of a relevant function or activity, or (v) while Knowing that all or a portion of that money or thing of value has been or will be offered, promised, paid, or provided to any Politically Exposed Person for an improper purpose.
PEP Status. Neither Partner, nor any of Partner’s Relevant Persons is currently a Politically Exposed Person or an agent or partner of a Politically Exposed Person. No Politically Exposed Person is associated with, or presently owns an interest in, whether direct or indirect, Partner or has any legal or beneficial interest in any agreement, payment, commission, rebate, discount, or markup involving the business of Ortto. If Partner or a Relevant Person becomes a Politically Exposed Person, or if a Politically Exposed Person obtains a legal or beneficial interest as set forth above, Partner shall notify Ortto immediately so Ortto may, and hereby reserves the right to, take whatever precautions and actions that may be appropriate to assure compliance with Applicable Laws, including, but not limited to, suspending or terminating this Agreement with Partner.
Sanctions. Partner has confirmed and shall continue to ensure that none of Partner or its Relevant Persons (i) is a national, resident, agent, or representative of Iran, Cuba, North Korea, Syria, or the Crimea Region of Ukraine; (ii) appears on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (collectively, “Sanctions Lists”); (iii) is an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on a Sanctions List; or (iv) is otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization.
Export/Sanctions Licenses. Partner shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary.
Anti-Money Laundering Compliance. Partner understands and acknowledges that Ortto prohibits all of its counter parties from engaging in money laundering and/or terrorist financing in relation to Ortto’s business. Partner has not and shall not (i) conceal or disguise the existence, illegal origins, and/or illegal application of criminally derived income so that such income appears to have legitimate origins or constitute legitimate assets and disclose any transaction suspected to be in breach of anti-money laundering laws where required to do so; (ii) use or deal with, or pay Ortto from, funds or proceeds derived from illegal activities such as corruption, fraud, embezzlement, drug trafficking, arms smuggling, prostitution, organized crime, or terrorism; or (iii) invest in, lend money to, or otherwise finance terrorist, narcotics, or other criminal organizations or activities.
Due Diligence. All of the due diligence materials and information that Partner has provided to Ortto regarding Partner and its Relevant Persons, including, but not limited to, all certifications and responses to due diligence questionnaires, are accurate and complete (collectively, “Due Diligence Information”). Partner will notify Ortto immediately if Partner becomes aware of any information that would result in a material change to Due Diligence Information already submitted to Ortto.
Information Requests. Partner shall respond to Ortto’s requests for information, to the extent reasonable and related to Ortto’s efforts to ensure compliance with Applicable Laws.
Notification. Partner shall immediately notify Ortto if Partner has any information or suspicion that there may be a violation of Applicable Laws in connection with this Agreement.
Cooperation. Partner shall reasonably cooperate with Ortto in regard to (i) addressing any matter, dispute or controversy related to this Agreement of which Partner may have knowledge; (ii) ensuring compliance with sanctions, embargoes, and other Applicable Laws in relation to Partner’s performance under this Agreement; and (iii) reviewing and remediating actual or potential violations of sanctions or other Applicable Laws, including, but not limited to, suspending or terminating the supply of products or services to persons that appear on a Sanctions List or are otherwise the target of sanctions and other similar restrictions. These obligations shall continue after the expiration or termination of this Agreement.
Certification. During the term of this Agreement, Partner shall, upon Ortto’s reasonable request, certify in writing from time to time its compliance with the representations, warranties, and covenants contained in this Compliance Supplement.
Controls/Compliance Program. Partner shall maintain, implement, and observe proper policies, procedures, and internal controls to ensure that (i) Partner and its Relevant Persons comply with Applicable Laws as well as the representations, warranties, and covenants contained in this Compliance Supplement; (ii) all expenditures incurred by Partner and/or its Relevant Persons in relation to Ortto’s business are accurately and completely recorded in Partner’s books and records; and (iii) Partner and/or its Relevant Persons do not create or use off-the-books accounts to make, receive, or hold payments in relation to Ortto’s business. Upon Ortto’s request, Partner shall provide Ortto with proof of its policies, procedures, and controls as set forth above.
Relevant Person Compliance. Partner shall cause its Relevant Persons to comply with all of the representations, warranties, and covenants contained in this Compliance Supplement with respect to the business or operations of Ortto. Partner understands and acknowledges that it shall be responsible for any violation of those terms by its Relevant Persons.
Ortto Associate Guide. Partner shall review and adhere to the Ortto Company Associate Guide currently located at https://ortto.com/partners/.
Indemnity. Partner shall indemnify and hold harmless Ortto for any damages, fines, penalties, disgorgement amounts, and expenses (including reasonable attorneys’ fees) incurred by Ortto in relation to any claim, suit, audit, investigation, settlement, enforcement action, prosecution, subpoena, or other legal proceeding associated with a violation of the foregoing representations, warranties, and covenants by Partner or any of its Relevant Persons. This indemnity obligation will survive the termination or expiration of this Agreement.
Material Breach. Partner understands and acknowledges that any violation of the foregoing representations, warranties, and covenants by Partner or any of its Relevant Persons shall constitute a material breach of this Agreement and shall entitle Ortto to (i) suspend or terminate this Agreement in its sole discretion and without any consequences to Ortto and (ii) seek all legal and equitable remedies.