By signing up for Pageloud’s Partner Program, you are agreeing to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you (“Partner” or “you”) and PageCloud Inc. (“Pagecloud” or the “Company” or “we”) (collectively “Parties”). This agreement contains the terms and conditions that apply to Partner’s participation in the Pagecloud Partner Program (the “Program” or “Partner Program”).
Pagecloud reserves the right to update and change the Partner Program Terms and Conditions by posting updates and changes on the Pagecloud website (https://pagecloud.com/partners/terms) the “Pagecloud Site”. If significant changes are made, we will provide reasonable notice by email. It is your responsibility to check the Terms from time to time for any update or changes that may impact you, and you agree that Pagecloud has no liability arising from your failure to do so.
You must read, agree, and accept all the Terms and Conditions contained within this Agreement in order to become a Pagecloud Partner. The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
By accepting the Partner Program Agreement, you agree to be a Partner in the Pagecloud Partner Program and certify that (a) you have read this Agreement and understand all contents therein, (b) you agree to be bound by all terms and conditions within this Agreement, including without limitation, all documents, policies, and procedures incorporated herein by reference and any possible future amendment thereof or additions thereto, and (c) you have no conflict or other restriction in entering or performing this agreement or any part thereof, including receipt of all the applicable approvals required under the applicable law for the performance of this Agreement by you.
“Partner Ads” - Anchor text, banners, button links, text links, or other graphic devices that Pagecloud makes available to Partner and that is used for linking from the Partner Site to Pagecloud Site.
“Partner Agent” - any employee, agent, subcontractor, or representative of Partner.
“Partner Application” - the application submitted by a Partner to participate in the Program, as contained in the PageCloud Site.
“Partner Fees” - the approved and undisputed amount due and payable one time only to a Partner in accordance with the Partner Fees Plan.
“Partner Fees Plan” - a Partner compensation plan where Partner shall be paid for Validated Transactions made by Referred Customers referred by Partner pursuant to the Pagecloud Partner Program Agreement, in accordance with the Fees and/or any special instructions described in Section 4 of that agreement.
“Partner Site” - websites owned, controlled, or used by Partner, on which the Partner will place its links to PageCloud Site.
“Affiliation Term” or “Term” - the term of the activity of a Partner as a participant in the Program commencing upon approval of Partner’s participation and ending according to the provisions under Section 17 below.
“Partner Transaction” or “Transaction” - a purchase made by a Referred User (referred to PageCloud through Partner’s Tracking Codes) of a PageCloud Subscription.
“Confidential Information” - Certain information disclosed to Partner as a result of Partner’s participation in the Program, which information PageCloud does in its sole discretion consider to be confidential. Examples are given in Section 19 herein without limitation.
“Content Restrictions” - Partner activities or site content that is deemed to be unsuitable for participation in the Program. Examples are given in Section 2(c) herein without limitation.
“Cookies” - a packet of data sent by an Internet server to a browser, which is returned by the browser each time it subsequently accesses the same server, used to identify the user or track their access to the server.
“Downtime” - time during which the service is inactive, rendering aspects or entirety of the Program to be unavailable for use.
“Emails” - messages or communications by electronic means.
“Feedback” - has the meaning as described in Section 16 of this Agreement.
“Fraud Traffic” - any deposits or traffic generated at the Partner Site(s) and/or via the Partner’s activity through illegal means or in bad faith or with the intent to defraud the Company, regardless of whether or not it actually causes harm to the Company. Fraud Traffic includes but is not limited to spam, false advertising, deposits generated by stolen credit cards, collusion, manipulation of the service, system, bonuses, or promotions, offers to share the Partner Fees, directly or indirectly with Users, self-referrals, and any other unauthorized use of any third-party accounts, copyrights, or trademarks.
“Governmental Authority” - any (a) multinational, federal, provincial, territorial, state, municipal, local, self-governed or other governmental or public department, central bank, court, commission, board, arbitrator, tribunal, bureau or agency, domestic or foreign,
(b) subdivision or authority of any of the above, or (c) quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under, or for the account of, any of the above.
“Intellectual Property Rights” - copyrights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill, and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of Canada or any other state, country, or jurisdiction.
“Indemnified Parties” - PageCloud and all PageCloud Related Entities and the directors, officers, employees, subcontractors, and agents thereof which Partner agrees to indemnify, defend, and hold harmless in accordance with the terms of this Agreement.
“Laws” - applicable laws (including common law), statutes, by-laws, rules, regulations, orders, ordinances, protocols, codes, guidelines, treaties, policies, notices, directions, decrees and judicial, arbitral, administrative, ministerial or departmental judgments, awards or requirements of any Governmental Authority.
“License” - the non-exclusive, non-transferable, limited authorization granted to Partner by PageCloud to use the PageCloud Trademarks contained in the Ads provided to Partner by PageCloud for the sole purpose of this Agreement.
“Opt-In List” - a list of emails possessed by Partner where the individuals on the list have expressly elected to receive emails from Partner.
“Opt-Out Request” - Written request made by an email recipient to receive no further communications from Partner.
“Pagecloud Creative” - any marketing and/or promotional materials relating to PageCloud including by not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images, and the PageCloud Trademarks.
“Pagecloud Site” - https://www.pagecloud.com and/or any other website as may be added to the Company, in its sole and absolute discretion, from time to time.
“Pagecloud Subscription” - the agreement to the exchange of the use of PageCloud’s software for a periodic fee on an annual or monthly basis.
“Pagecloud Trademarks” - trademarks, logos, other distinctive brand features, and trade names of PageCloud Inc., whether registered or unregistered, including but not limited to the word mark “PageCloud” and the PageCloud logo.
“Pagecloud Related Entities” - any entity that directly or indirectly controls, is controlled by, or is under common control with PageCloud; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
“Partner Program” - a program whereby official PageCloud partners create websites on the PageCloud platform and sell the sites to their own customers for a profit and potentially receive an inducement payment from PageCloud.
“Partnerstack Service” - A third party service that tracks tracking code behavior, reports on Partner performance and handles Partner payouts of Validated Transactions.
“Payment Period” - Monthly period used as a measurement of time within which to calculate Validated Transactions and amounts payable to Partner.
“Payment Period Report” - Payment reporting is available on an ongoing basis through the Partnerstack Service for the purpose of communicating to Partner the amount which is payable to them for their Validated Transactions made during that Payment Period.
“Referred Customer” - a user who purchased a PageCloud Subscription through the Partner’s Tracking Code from the Partner Site, email, or other communications.
“Referred User” - a user who visited the PageCloud Site via the Partner’s tracking Code from the Partner Site, email, or other communications, with or without signing up for a free PageCloud trial.
“SPAM” has the meaning given to it in Section 9(g) of this Agreement.
“Special Sale Terms” - such special discounts or other special benefits which PageCloud may determine to apply to certain Subscription purchases.
“Sponsored Link” - a link offered, created, or displayed for a fee (whether on a “cost-per-click” basis, commission, or any other commercial arrangement) by any internet search engine, portal, sponsored advertising service, or other search or other referral service which uses search terms or keywords to identify, draw attention to, or direct internet traffic to an internet site.
“Terminated Partner” - a Partner whose participation in the Program has been discontinued due to inactivity, material breach of this Agreement, or otherwise stated in agreement.
“Trademark Guidelines” - formal direction given to Partner by PageCloud around permissions and limitations regarding the use of PageCloud Creative on their Partner Site or otherwise.
“Validated Transaction” - Partner Transactions that have become eligible to accrue Partner Fees based on the fact that one of the following criteria has been met, subject to the provisions of Section 5 of this Agreement: (a) a Referred Customer has purchased an annual subscription and valid payment has been received, or (b) a Referred Customer has purchased a monthly subscription a valid payments have been received.
2 Joining the Program
- To begin enrollment, the Partner shall submit a complete Partner Program Application via the Partnerstack Service linked from the Pagecloud Site. Partner must provide full, true, and accurate information on the Partner Program application. Pagecloud will evaluate the Partners application in good faith and will notify the candidate of their acceptance or rejection via the Partnerstack Service within thirty (30) business days. Unless a Partner received clear written notice from Pagecloud confirming their participation in the Program, Partner shall not be deemed to be part of the Program.
- Pagecloud may reject any Partner application if Pagecloud determines, in Pagecloud’s sole discretion, that the Partner or Partners activities are unsuitable for the Program for any reason. If Pagecloud accepts a Partner application and thereafter the Partner Site or activity is determined, in Pagecloud’s sole discretion, to be unsuitable for the Program, Pagecloud may terminate the Partners’s participation in the Program at any time.
- Unsuitable Partner Site(s) or activities may include, but are not limited to, sites or activities related to illegal, offensive, abusing, infringing content, or which incorporate images or content that is, in any way, unlawful, harmful, misleading, threatening, defamatory, obscene, harassing, or racially, ethically, or otherwise objectionable, including without limitation, sites or activities that promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities; or incorporate any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights of any third party (collectively, “Content Restrictions”).
3 Tracking Codes
- To permit accurate tracking, reporting, and Partner Fee accrual, Pagecloud will provide Partner with a Tracking Code through the Partnerstack Platform. Partner must ensure that each of the links between its Partner Site and Pagecloud Site properly utilizes the Tracking Codes provided to Partner via the Partnerstack Platform.
- Partner is not authorized to alter, modify, or change any of the Tracking Codes besides what is allowed via the Partnerstack Service. Partner will only earn payments in accordance with the terms described in Section 4 of the Pagecloud Partner Program Agreement. Pagecloud will not be held liable to the Partner with respect to any failure by Partner to use such Tracking Codes. Pagecloud will not be responsible for errors which may occur in the tracking of transactions if the Partner has made or caused any such modification to the Tracking Code. For the avoidance of doubt, Partner will use the Tracking Code only for the purposes of the Program. Any other use of the Tracking Code will be considered void and, subject to Pagecloud’s sole discretion, shall be deemed as breaching this Agreement and will not entitle Partner to any Partner Fee which is based on such unauthorized use.
4 Partner Fees
- For every new Pagecloud Subscription purchased by a Referred User through Partner’s Tracking Code, and subject to the compliance of the Partner with the provisions of this Agreement, Partner shall be entitled to receive Partner Fees amounting to 20% of the Net Subscription Fees charged the Referred Customer. For the purposes of this agreement “Net” shall mean the aggregate amount of Subscription Fees actually received by Pagecloud from the Customer, less any refunds to any such Referred Customer for the Subscription cancellation and any applicable taxes.
- Notwithstanding the foregoing, in the event that any Referred User purchases a new Pagecloud Subscription through the Partner’s Tracking Code, and such purchase is subject to Special Sale Terms, the Partner Fees payable to Partner (if any) shall be subject to and reduced in accordance with the discount or other special benefits applicable to the Subscription under the Special Sale Terms.
- Partner Fees are payable to a Partner on all valid purchases of a Pagecloud Subscription made by a respective Referred User.
5 Partner Fee Payment and Reporting
- Partner Fees are subject to review by Pagecloud and will be calculated and made by the 15th day of the month following the Validated Transactions made by the Referred Customer.
- Transactions will not be deemed to be Validated Transactions, and will not be eligible to accrue Partner Fees, unless and until one of the following criteria have been met:
(i) a Referred Customer has purchased an annual Subscription and valid payment has been received, or;
(ii) a Referred Customer has purchased a monthly Subscription and valid payments have been received.
If a Referred Customer cancels their monthly subscription before the end of the payment period the transaction will not be deemed a Valid Transaction, and no Partner Fees shall be paid to the Partner for that Referred Customer for that period.
- All payments of the Partner Fees will be due and payable in United States Dollars only, except as otherwise determined by Pagecloud in its sole discretion. Payment will be made through the Partnerstack Platform via the the Partnerstack Platforms supported method of Partner Payouts.
- In the event of any activity deemed suspicious by Pagecloud at its sole determination, Pagecloud may delay payment of the Partner Fees to Partner for up to one hundred eighty (180) days to verify the relevant transactions, and in the event that Pagecloud determines the activity to constitute Fraud Traffic, it shall recalculate and/or withhold the Partner Fees accordingly and in its sole discretion. In the event that Pagecloud reasonably determines that Partner is involved, directly or indirectly, in any fraudulent, deceptive, manipulative, misleading, or otherwise illegal activity connected to Pagecloud, including without limitation to the Pagecloud Site, Tracking Codes and/or Users, Pagecloud shall have the right, in addition to any other right or remedy available to it under this Agreement or applicable law, to render the Tracking Codes assigned to such Partner inoperative and immediately block Partner access to the Program, with no compensation to Partner and no liability whatsoever to Pagecloud. Partner hereby irrevocably waives any claim or demand whatsoever against Pagecloud, its directors, officers, shareholders, or employees in respect of such action taken by Pagecloud.
- Partner is responsible for the payment of all taxes applicable to the conduct of Partner’s business. The payment to the Partner shall be subject to any withholding tax obligations applicable by law. It is agreed that the Partner Fees are inclusive of any and all taxes applicable by any law including VAT.
- In the event of a discrepancy between the dollar amount that Pagecloud reports to be payable to Partner for a particular Payment Period and the amount Partner believes that they are owed for Validated Transactions which occurred during that Payment Period, Partner has until the end of the Payment Period in which the Report was issued to dispute the payment amount. Once a dispute has been issued, Pagecloud will investigate the claim and will determine in its sole discretion whether Partner’s claim of mispayment is warranted. If Pagecloud determines Partner’s claim of mispayment to be valid, the amount accounting for the disparity will be added to the Payment Period in which the dispute was resolved. The failure of Partner to inform Pagecloud of any payment dispute by the end of the Payment Period will be construed as Partner’s acceptance of Pagecloud’s determination of Partner Fees due for that Payment Period and constitutes a waiver of Partner’s rights to dispute the payment.
6 PageCloud Transactions Processing Services Policies and Pricing
- PageCloud will process Transactions placed by Users who used the Tracking Codes from the Partner Site to PageCloud Site.
- PageCloud reserves the right to reject Transactions that do not comply with any reasonable requirements that PageCloud may periodically establish.
- PageCloud will be responsible for all aspects of processing and fulfillment of Transactions.
- PageCloud will track purchases generated by Users referred through the Partner Site. To permit accurate tracking, reporting, and Partner Fees accrual, the Partner shall ensure that Tracking Codes are properly formatted. PageCloud will not be responsible for improperly formatted Tracking Codes.
- PageCloud may change the pricing, policies, and operating procedures at any time consistent with applicable laws. For example, PageCloud will determine the prices to be charged for services in accordance with PageCloud’s own pricing policies. In the event that such changes affect items that Partner already has presented on the Partner Site, the Ads, or any other information provided by Partner to third parties in respect with this Agreement and its participation in the Program, Partner must track such changes and reflect them in the Partner Site or in any other relevant marketing material.
7 Ads and Use of PageCloud Marks
- PageCloud hereby grants to Partner a non-exclusive, non-transferable, limited license to use the PageCloud Trademarks contained in the Ads provided to Partner by PageCloud for the sole purpose of this Agreement (the “License”). PageCloud will provide Partner with the necessary information to allow Partner to make appropriate Ads from the Partner site to the PageCloud Site. Partner may not use any of the PageCloud Trademarks in any manner other than as contained in the Ads. Furthermore, Partner may not modify any of the Ads in any way, whatsoever. The License shall expire upon the expiration or termination of the Affiliation Term.
- Partner shall display the Ads subject to requirements as PageCloud may from time to time impose and provide to Partner, including PageCloud Trademark Guidelines. Partner may not use the Ads and the PageCloud Trademarks contained therewith in a manner that, in PageCloud’s sole discretion, is disparaging or otherwise portrays PageCloud in a negative light. Partner shall have no other right, title, or interest in or to the Ads and PageCloud Trademarks contained therewith other than as specified in the limited license granted herein.
- Partner will be solely responsible for the content and manner of its marketing activities, subject to Partner’s compliance with the terms of this Section. All marketing activities must be professional, proper, and lawful under applicable rules or laws.
- PageCloud may at any time, without prior notice, require the Partner to remove or modify Ads, or dynamically replace the PageCloud Creative or text with creative or text suitable to PageCloud in PageCloud’s sole discretion.
- As between Partner and PageCloud, PageCloud shall own all right, title, and interest, including all intellectual property rights, in and to the PageCloud Site, the Program, and the PageCloud Trademarks.
- Partner shall not use any PageCloud Trademark including but not limited to the PageCloud logo or variations of the word “PageCloud” in Partner’s business name, logo, products, or services unless granted express written permission by PageCloud in advance of such use.
8 Marketing Activities
- Partner shall bear all costs and expenses related to Partner’s marketing or promotion of PageCloud in any area, location, territory, or jurisdiction, unless otherwise determined by PageCloud in its sole discretion.
- In no event shall Partner engage in any PageCloud-related marketing activities except as expressly set forth in this Agreement.
- In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-In List”), Partner may make a written request to PageCloud to send emails regarding the offering of PageCloud to the individuals on the Opt-In List, and PageCloud may, in its sole discretion, allow Partner to send such emails.
- Partner shall comply with all applicable laws, rules, regulations, and directives, including but not limited to those relating to email marketing and “spamming”.
- If Partner sends, or causes to be sent, any messages or communications by electronic means, including but not limited to email and instant messages (“Emails”) in connection, directly or indirectly, with this Agreement and/or the Program, then Partner agrees, acknowledges, represents, and warrants that all such emails shall be in full compliance with all Laws that are applicable to the Partner and Partner Site in the jurisdictions in which they operate.
- Partner agrees to not utilize SPAM in promoting PageCloud. PageCloud maintains a zero-tolerance policy towards the sending of SPAM, including, but not limited to, unsolicited commercial emails. This action may result in the immediate suspension or termination of Partner Agreement with a cancellation of and possible forfeiture of any pending Fees. Partner will also be in violation of this Agreement and subject to legal action and be held liable for any financial loss incurred by PageCloud.
- SPAM is defined as including, but not limited to, the following:
- Sending, initiating, or procuring the sending of an email to any person who has either not explicitly requested to receive such messages (or has explicitly requested to receive no further emails) specifically from Partner, including without limitation for the purposes of sending unsolicited bulk email, executing any “mass mailings” or “email blasts”, or for the purpose of spamming any public forum, including without limitation, any blog, message board, classified listings, auction sites, newsgroups, or similar service.
- Employing any false, deceptive, or misleading information regarding Partner’s identity, or regarding the intent, subject, or origin of the message or failing to include accurate information regarding Partner identity, and the intent, subject, and origin of the email.
- Exploiting documented or undocumented security holes on any client or server machine.
- Failing to:
- include clear, valid, or conspicuously displayed “From” and “Subject” lines in the email;
- include a functioning return address (or hyperlink) in the email that enables the recipient to submit a request to receive no further messages from the Partner (“Opt-Out Request”) for no less than thirty (30) days from the date the email was sent; or
- honor any Opt-Out Request within ten (10) days of receipt of such Opt- Out Request by Partner.
- Obtaining email addresses via automated means or sending any email to any address which was obtained via automated means, including via the automated combination of names, letters, or numbers, dictionary attacks, or the use of spyware, viruses, or other means of bypassing system security or invading customer privacy.
- Employing any fraudulent, deceptive, false, or misleading information in connection with the emails.
- Sending any commercial marketing email or promotion to, or collecting any personally identifiable information from, any person who is under eighteen (18) years of age.
9 Partner shall not:
- send any email regarding PageCloud to any individual or entity that has not requested such information;
- fail to include Partner’s contact information and “unsubscribe” information at the bottom and top of any email regarding PageCloud;
- imply that such emails are being sent on behalf of PageCloud;
- engage in any fax, print, broadcast, telemarketing, or any other offline marketing methods with respect to PageCloud;
- use malware, spyware, or any other aggressive advertising or marketing methods in any of its dealings relating to PageCloud;
- make any false, misleading, or disparaging representations or statements with respect to PageCloud;
- copy, resemble, or mirror the look and feel of PageCloud’s website, PageCloud Trademarks or Services, or otherwise misrepresent Partner’s association with PageCloud; or
- engage in any other practices which may adversely affect the credibility or reputation of PageCloud, including but not limited to sending email communications or using any Website in any manner, or having any content on any Website that:
- uses aggressive or low-quality marketing, including marketing services that are unrelated to PageCloud;
- promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, and/or any illegal or objectionable activities; or
- violates any intellectual property or other proprietary rights of any third-party.
10 Compliance with Laws
In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all Laws.
11 Partner Duty to Inform
Partner shall promptly inform PageCloud of any information known to Partner that could reasonably lead to a claim, demand, or liability of or against PageCloud by any third party.
12 Prohibition on Sponsored Link
- Partner shall not use, procure, bid on, or otherwise arrange for a Sponsored Link which uses or includes any of the PageCloud Trademarks.
- Partner shall not register, procure, or use any internet domain name that includes any of the PageCloud Trademarks or any variations thereof.
13 General Provisions, Responsibilities of the Partner, Representations, and Warranties
- You hereby warrant and represent that you are over the age of eighteen (18), and in all respects are qualified and competent to enter into this Agreement as an Partner, whether on your own behalf or on behalf of your employer.
- Partner will provide accurate and complete details regarding their identity and personal details such as bank account, wiring instructions, address, or other required information.
- Partner will be solely responsible for the development, operation, and maintenance of the Partner Site and Partner’s activities and for all materials related thereto. Partner will indemnify and hold PageCloud harmless from all claims, damages, and expenses incurred by PageCloud due to any third-party claim relating to the development, operation, maintenance, manner, and contents of the Partner Site or activities.
- Partner acknowledges that PageCloud will use the email address provided by Partner as the primary method for communication.
- If you sign up for the Partner Program on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for assuring that its employees, agents, and subcontractors comply with this Agreement.
- In the event that any entity (including any employee, agent, subcontractor, or representative of Partner (each, an “Partner Agent”) participates in the Program or otherwise acts on behalf of Partner with respect thereto, Partner shall ensure that such Partner Agent fully complies with the terms of this Agreement, and Partner shall be fully liable for any act or omission of such Partner Agent.
- Partner hereby represents and warrants to PageCloud that materials posted on their Partner Site do not violate or infringe upon the rights of any third-party, and that materials posted on their Partner Site are not libelous or otherwise illegal nor may cause Partner to violate any of its representations or obligations under this Agreement. PageCloud disclaims all liability for all such matters.
- As a condition to Partner’s participation in the Program, Partner hereby represents and warrants that during the Term of this Agreement, Partner will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgements, decisions, or other requirements of any governmental authority as applicable to Partner, whether those laws are now in effect or later come into effect during the Term of this Agreement.
- Partner acknowledges and agrees that PageCloud may amend these Terms and Conditions at any time. Notice for any significant changes to the PageCloud Partner Terms will be provided by email, to Partner’s address as provided to PageCloud and will be considered sufficient notice to Partner of a modification to the Terms. Modifications may include, but are not limited to, changes in the scope of available Partner Fees, payment procedures and schedules, and Partner Program rules.
- Partner’s continued participation in the PageCloud Partner Program after the amended Terms and Conditions are posted to PageCloud’s Site constitutes Partner’s agreement to, and acceptance of, the amended Terms. If Partner does not agree to any changes to the Terms and Conditions, Partner must terminate the Terms by discontinuing its participation in the PageCloud Partner Program.
- Other than the limited license to use the PageCloud Trademarks pursuant to this Agreement, Partner shall not use the PageCloud Trademarks (meaning any names and/or trademarks or any other protected branding associated with PageCloud services) and/or variates or misspellings thereof in PageCloud’s business name, logo, branding, advertising, social media, or domain name (including without limitation top-level domains and page URLs).
- Partner shall not purchase or register search engine of pay-per-click keywords (such as Google AdWords), trademarks, or domain names that use the PageCloud Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the PageCloud Trademarks.
- Partner is required to immediately inform PageCloud in writing if Partner is already participating or is looking to participate in other programs offered by PageCloud, including but not limited to the PageCloud Partner Program. In such case, PageCloud, in its sole discretion, may choose to appoint Partner to be either its Partner or Partner Program, but in any event not both, unless confirmed otherwise in writing by PageCloud. In case PageCloud has any doubt that Partner participates in two or more different programs without PageCloud’s prior written approval, PageCloud may terminate the Agreement immediately and any unpaid or earned (whether from one or all the programs) will be void and cancelled, all at PageCloud’s sole discretion. Notwithstanding the foregoing, PageCloud will be entitled to claim back all Fees paid to Partner who participated in two or more different programs without PageCloud’s prior written approval.
- This Agreement has been duly and validly executed and delivered by Partner (by acceptance of its terms) and constitutes Partner’s legal, valid, and binding obligation, enforceable against Partner in accordance with the terms contained herein.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by Partner in connection with the execution, delivery, and performance of this Agreement or the taking by Partner of any other action hereunder.
- To the best of Partner’s knowledge, there is no pending threatened claim, action, or proceeding against Partner, or any Partner thereof, with respect to the execution, delivery, or consummation of this Agreement, or with respect to any intellectual property infringement, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- Partner understandings that PageCloud may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with the Partner Site.
- PageCloud has the right, in PageCloud’s sole discretion, to monitor Partner Site at any time and from time to time to determine if the Partner is in compliance with the terms of this Agreement. Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by PageCloud.
14 Relationship of Parties
- PageCloud and Partner are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
- Partner will have no authority to make or accept any offers or representations on PageCloud’s behalf. Partner will not make any statement, whether on their Partner Site or otherwise, that reasonably would contradict anything in this Agreement.
If Partner provides any feedback (including identifying potential errors and/or improvements) to PageCloud concerning the Partner Program, PageCloud Creative, or any aspects of the Service (“Feedback”), Partner hereby assigns to PageCloud all right, title, and interest in and to the Feedback, and PageCloud is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment, or restriction, including to improve the Partner Program, PageCloud Creative, and/or the Service and to create other products and services. PageCloud will treat any Feedback as non- confidential and nonproprietary. Partner will not submit any Feedback that it considers confidential or proprietary.
16 Affiliation Term and Termination
- The term of Partner’s participation in the Program shall commence upon PageCloud’s acceptance of the Partner Application and shall end upon provision of the termination notice by either party in accordance with the provisions of this Agreement (the “Affiliation Term”).
- Either party may terminate Affiliation Term at any time, with or without cause, by giving the other party ten (10) business days prior written notice of termination.
- In the event of a material breach of this Agreement by Partner, PageCloud may, at its sole and absolute discretion, terminate the Affiliation Term immediately, without prior notification, and the Partner will not be entitled to receive any unpaid Partner Fees, which accrued prior to such termination.
- Any provisions that by their express terms do, or by their nature should, survive termination of Affiliation Term, shall continue to be in force despite the termination of the Affiliation Term.
- Upon termination of this Agreement for any reason:
- Partner shall remove all Tracking Codes, Ads, and other Program-related content from Partner Site or any other communication means used by Partner within 10 business days;
- Partner will immediately cease use of, and remove from Partner Site, all links to PageCloud Site and all of PageCloud Trademarks, and all other materials provided by or on behalf of PageCloud pursuant hereto or in connection with the Program;
- Each party shall return to the other party, or destroy (and provide certification of such destruction), all property of the other party in its possession or control (including all PageCloud Creative and Confidential Information);
- Partner shall immediately cease displaying any PageCloud Creative and/or any PageCloud Trademarks on any Website or otherwise; and
- All rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to to receive any payments of Fees hereunder, unless otherwise determined by PageCloud in its sole discretion.
- PageCloud makes no express or implied warranties or representations with respect to this Agreement, the Program, and the information to be delivered pursuant hereto, including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, trade usage, or fitness for a particular purpose.
- PageCloud makes no representation as to any of the information found on PageCloud’s Site. The materials on PageCloud’s Site and for the Partnerd Sites are provided “as is” without any express or implied warranty of any kind. PageCloud does not warrant the accuracy or completeness of the information, text graphics, links, or other items contained on the PageCloud Site. Any of the information offered on PageCloud’s Site may change at any time without notice.
- Should the materials or services provided prove defective and/or cause any damage to equipment or any loss or inconvenience to the Partner or anyone claiming through the Partner, the Partner assumes the entire cost and responsibility for them.
- Partner will indemnify and hold harmless PageCloud, its subsidiaries, officers, employees, agents, and third-parties from and against any claims, liabilities, losses, costs, damages, or expenses (including attorney’s fees) arising, directly or indirectly, in connection with Partner’s operations or website or out of any disputes between Partner and any other party relating to this Agreement or the participation in the Program the Sites, or to services provided by PageCloud.
PageCloud may disclose to Partner certain information as a result of Partner’s participation in the Program, which information we consider to be confidential (herein referred to as “Confidential Information”). For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to :
- Any modifications to the terms and provisions of the Program made specifically for the Partner or Partner Site and not generally available to other Partners of the Program;
- Price guidelines, future service releases, trade secrets, know-how, inventions, processes, programs, schematics, data, pricing and discount schedules, customer lists, financial information, and sales and marketing plans relating to PageCloud or PageCloud’s services.
- Confidential Information shall also include any information that PageCloud designates as confidential during the term of this Agreement. Confidential Information shall not include information which is:
- Previously known to the other party without obligation of confidence or without breach of this Agreement;
- Publicly disclosed (other than to the Partner) either prior or subsequent to the Partner’s receipt of such information; or
- Required to be disclosed by the other party by law or by the order of a court or similar judicial or administrative body.
- Partner shall at all times, both during the Term and at all times thereafter, keep and hold such Confidential Information in the strictest confidence, and shall not use such Confidential Information for any purpose other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without PageCloud’s prior written consent.
19 Limitations of Liability and Indemnification
- Under no circumstances shall PageCloud, its subsidiaries, officers, directors, employees, or suppliers be held liable for any direct or indirect damages and/or losses to the Partner, user and/or other third-party that may arise due to Downtime and/or availability of PageCloud Site or the Program. Moreover, PageCloud, its subsidiaries, officers, directors, employees, or suppliers shall not be held liable for any losses of any kind that may result due to downtime in the Program and/or any other third-party’s downtime.
- Notwithstanding anything to the contrary contained in this Agreement, PageCloud, its subsidiaries, officers, directors, employees, or suppliers will not be liable to Partner with respect to any subject matter of this Agreement under any contract, negligence, tort, strict liability, or other legal or equitable theory for any indirect, incidental, consequential, special, punitive, or exemplary damages (including, without limitation, loss of goodwill or actual or anticipated revenue, profits, or lost business), even if PageCloud, its subsidiaries, officers, directors, employees, or suppliers have been advised of the possibility of such damages.
- Partner agrees to indemnify, defend, and hold harmless PageCloud and all PageCloud Related Entities and the directors, officers, employees, subcontractors, and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of:
- Partner’s breach of any representation, warranty, obligation, or covenant under this Agreement;
- Partner’s gross negligence or willful misconduct;
- Any warranty, condition, representation, indemnity, or guarantee relating to PageCloud and PageCloud Related Entities granted by Partner to any third- party;
- Partner’s breach of any term of this Agreement;
- Any third-party claim that Partner’s products, services, site, or any content therein infringes the intellectual property or other rights of a third-party; and
- The performance, nonperformance, or improper performance of the Partner’s products, services, site, or referrals.
20 Notice of Indemnification
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim, the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
21 Non-Exclusive Remedies
In the event of any breach or threatened breach by Partner of any provision of the Partner’s responsibilities, PageCloud’s intellectual property or other proprietary rights, or confidentiality, in addition to all other rights and remedies available to PageCloud under this Agreement and under applicable law, PageCloud shall have the right to:
- Immediately enjoin all such activity, without the necessity of showing damages or posting bond or such security;
- Immediately terminate this Agreement and Partner’s engagement hereunder; and
- Be indemnified for any losses, damages, or liability incurred by PageCloud in connection with such violation, in accordance with the provisions of this Agreement.
All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns, and legal representatives. PageCloud shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without PageCloud’s Prior written consent, to be given or withheld in PageCloud’s sole discretion.
23 Entire Agreement
This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced herein, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition, or other provisions that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
24 No Waiver
The failure by either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
25 Applicable Laws
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with this Agreement that cannot be amicably resolved.
By signing the “PageCloud Partner Program Agreement”, Partner hereby fully agrees with all terms and provisions of the PageCloud Partner Terms and Conditions, including all documents linked to herein.
- PageCloud reserves the right to update and change the Partner Program Terms and Conditions by posting updates and changes on the PageCloud website (https://www.pagecloud.com/Partners/terms) the “PageCloud Site”. If significant changes are made, we will provide reasonable notice by email. It is your responsibility to check the Terms and Conditions from time to time for any update or changes that may impact you, and you agree that PageCloud has no liability arising from your failure to do so. Notice for any changes to the PageCloud Partner Agreement will be provided by email, to Partner’s address as provided to PageCloud and will be considered sufficient notice to Partner of a modification to the terms of the Agreement. Modifications may include, but are not limited to, changes in the scope of available Partner Fees, payment procedures and schedules, and Partner Program rules.
- Notwithstanding the foregoing, the Partner Fees Plan may be altered, modified, or changed by PageCloud, from time to time, in its sole and absolute discretion, provided that PageCloud will notify Partner of such change of the Partner Fees Plan. Partner Fees earned prior to such change will be paid according to the conditions in effect prior to such changes. Partner Fees earned after such change is in effect will be paid according to the new conditions of the amended Partner Fees Plan’s effective date at which the payment has been made.
- If any modification of the Partner Agreement or Partner Terms and Conditions are unacceptable to Partner, it is the Partners sole recourse shall be to terminate the Agreement. Partner’s continued participation in the Program following posting of a change notice or a new agreement will constitute binding acceptance of such change.
28 Independent Investigation
- PageCloud encourages Partner to consult with legal and/or financial and/or tax and/or accounting advisors prior to entering the Program.
- Partner acknowledges and agrees that nothing herein and no statement by PageCloud or any of its employees or other person associated with PageCloud has prevented Partner in any way from seeking such advice before entering into this Agreement.
- Partner has independently evaluated the desirability of participating in the Program and Partner is not relying on any representations or statements other than as set forth in this Agreement.
- Partner has read this Agreement carefully and understands it, has been given the opportunity to consult with counsel, and accepts the obligations which it imposes upon Partner without reservation. Partner has also taken into account the limitation of liability and warranty disclaimer provisions of this Agreement prior to accepting this Agreement. No promises or representations have been made to Partner to induce Partner to accept this Agreement. Partner agrees to these terms voluntarily and freely.