PLEASE READ THIS PARTNER PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the Partner) and us (LEANSTACK). 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 Partner Program unless you agree to them. By participating in our Partner Program, you are agreeing to these terms.
We periodically update these terms and we will let you know when we do via email and in-app notification.
“Partner Program” means our partner program as described in this Agreement.
“Active Partner” means that you have an active partner plan subscription.
“Customer Terms of Service” means those terms and conditions located at http://ask.leanstack.com/leanstack-terms-and-policies/terms/customer-terms-of-service, as modified from time to time.
“End User” means the authorized actual user of the LEANSTACK Products or the party on whose behalf you use the LEANSTACK Products.
"End User Data" means all information that End User, or you acting on End User’s behalf, submits or collects via the LEANSTACK 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 LEANSTACK Products.
"LEANSTACK Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“LEANSTACK 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 http://leanstack.com/pricing/. 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 LEANSTACK, 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 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.
“Revenue Share” means an amount equal to 20% of Net Revenue paid to us by an End User or Partner for a Partner Transaction.
“Partner Portal” means a subscription to LEANSTACK Platform that was purchased by Partner, along with partner training.
“Subscription Service” means our web-based innovation management software that is subscribed to, and developed, operated, and maintained by us, accessible via https://leanstack.com. For the purposes of this Agreement, the Subscription Service does not include any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
"We", "us", “our”, and “LEANSTACK” means LEANSTACK, Inc.
“You” and “Partner” means the party, other than LEANSTACK, entering into this Agreement and participating in the Partner Program.
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 LEANSTACK Products to your prospects and customers, and (ii) to provide End Users access to use the LEANSTACK 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 Partner Program.
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) share your paypal account or other preferred payment method; (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 email@example.com.
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 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.
c. Taxes. You are responsible for payment of all taxes applicable to the Revenue Share. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
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.
6. Proprietary Rights
a. LEANSTACK's Proprietary Rights. No license to any software is granted by this Agreement. The LEANSTACK Products are protected by intellectual property laws. The LEANSTACK Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the LEANSTACK Products. LEANSTACK, the LEANSTACK logo, 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 LEANSTACK 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 LEANSTACK 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 LEANSTACK 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 LEANSTACK Products to the End User.
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) LEANSTACK 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.
8. Term and Termination
a. Term. This Agreement will apply for as long as you participate in the 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 LEANSTACK 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 immediately discontinue all use of our trademark, and will remove all LEANSTACK badges and 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.
9. 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 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.
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 Partner Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, or (d) 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.
11. 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 LEANSTACK PRODUCTS, LEANSTACK 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 LEANSTACK 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 LEANSTACK 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.
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://ask.leanstack.com/leanstack-terms-and-policies/partner-program-agreement and we will let you know via email. 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 Texas, 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 Austin, Texas.
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 LEANSTACK 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 LEANSTACK Products to prohibited countries or individuals or permit use of the LEANSTACK Products by prohibited countries or individuals.
g. 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.
h. 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 LEANSTACK, Inc.: LEANSTACK, Inc., 5409 Montview Street, Austin, TX 78756, 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.
i. 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 LEANSTACK 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 LEANSTACK Products or dependent on any oral or written public comments made by us regarding future functionality or features of the LEANSTACK 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.
j. 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.
k. 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.
l. Program Policies. We may change the Program Policies from time to time by updating our website. Your participation in the Partner Program is subject to the Program Policies, which are incorporated herein by reference.
m. 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 LEANSTACK Products, our trademarks, or any other property or right of ours.
n. Sales by LEANSTACK. This Agreement shall in no way limit our right to sell the LEANSTACK Products, directly or indirectly, to any current or prospective customers.
o. 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.
p. 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’.