Partner Terms

The following terms and conditions apply to all members of the Zoey Partner Program (the “Agreement”). By signing this Agreement, Partner hereby agrees to be bound by the terms and conditions set out herein.

1. DEFINITIONS 

1.1 “Affiliate” shall mean, with respect to Zoey, any other entity who, directly or indirectly, controls, is controlled by, or is under common control with Zoey.

1.2 “Branded Material(s)” shall mean any marketing and/or promotional materials relating to Zoey and/or Zoey brands that (a) are promoted by Zoey and Zoey Related Entities as Zoey deems necessary or appropriate and/or (b) are developed or created by Partner with the written consent of Zoey in accordance with Section 2.3 below.

1.3 “Cause” shall mean (a) the commission by or allegation against a Party of criminal activity which constitutes a felony under applicable law or the entry of a plea of guilty or no contest with respect thereto by such Party; (b) the commission by or allegation against a Party of fraudulent activity or gross negligence under applicable law; (c) the material breach by a Party of any of its material obligations under this Agreement; (d) the commission by a Party of any act that directly conflicts with the interests of the other Party or causes or is reasonably likely to cause material harm to the other Party or its reputation; (e) the filing by a Party of a voluntary petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect; (f) the seeking by a Party of the appointment of a custodian, receiver, trustee (or other similar official) of such Party or all or any substantial portion of such Party’s assets, or the making by such Party of any assignment for the benefit of creditors or taking of any action in furtherance of any of the foregoing; or (g) an involuntary petition filed, or any proceeding or case commenced, against a Party (unless such proceeding or case is dismissed or discharged within 30 days of the filing or commencement thereof) under any bankruptcy, reorganization, arrangement, insolvency, adjustment of debt, liquidation or moratorium statute now or hereafter in effect.

1.4 “Confidential Information” shall include, but shall not be limited to, any and all information associated with the other Party’s business and not publicly known, including the contents of this Agreement, specific trading information, technical processes and formulas, source codes, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information of Zoey shall include, without limitation: (a) onboarding documents that Zoey uses to train Partner employees on the Platform; (b) Branded Materials (e.g., use cases, case studies and one-pagers) that show Partner employees how to sell Zoey to prospective customers; (c) previews of upcoming Zoey features; (d) the Zoey roadmap and strategic plan; and (e) Zoey’s performance record.

1.5 “Malware and Spyware” relates to the use of pop-up banners that hide banners that are displayed on a website, the placement of icons beside keywords found in text that if clicked will take the visitor to another website, and other similar practices.

1.6 “Names and Trademarks” refers to any names and/or trademarks or any other protected marks associated with the Platform or Service and Zoey Inc.

1.7 “Opt-in List” shall mean the list of emails where the individuals on the list have expressly elected to receive e-mails from Partner.

1.8 “Partner” shall mean an entity that has agreed to the terms of the Partner Program herein to work with Zoey to promote the Service by referring clients to Zoey.

1.9 “The Platform or Service” refers to the Zoey software platform available via the Zoey website (currently www.zoey.com) and any associated websites including info.zoey.com and any other replacement or substitute websites.

1.10 “Prospective Partners” refers to any other marketing organizations and/or website owners and/or operators that may be potential partners of Zoey.

1.11 “Qualified Referral” is a prospective customer that meets all of the following criteria:

– Is introduced to Zoey by Partner via written notice (email to Partner’s designated Zoey contact) that includes the prospect’s company name, contact name, email, and a brief description of the opportunity

– Has not previously engaged with Zoey’s sales team or submitted a demo request on zoey.com within the prior twelve (12) months

– Is not already an active Zoey customer

– Is not an account owned or operated by Partner

– Enters into a paid Zoey subscription within six (6) months of the referral date

1.12 “Referral Registration” — Partner registers each referral by sending an email to their designated Zoey contact. Zoey will confirm receipt and referral status within five (5) business days. A referral is attributed to Partner only upon written confirmation from Zoey.

1.13 “Related Entity(ies)” shall mean any entity that, directly or indirectly, controls, is controlled by, or is under common control with, Zoey; 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.

1.14 “Revenue” shall mean, with respect to any Qualified Referral, all fees actually received by Zoey from such referral under the applicable monthly or yearly agreement, net of any taxes, credit card fees, charge backs, discounts, refunds, exchanges, promotions, coupons, waivers, failed charges and other customary offsets. Revenue shall only include fees relating to the provision of the Platform to the referral and shall exclude all fees relating to any ancillary service provided by Zoey.

1.15 “Websites” refers to any Zoey account associated with websites that are managed by Partner that currently have or will have a marketing arrangement with Zoey.

 

2. RESPONSIBILITIES OF THE PARTNER

2.1 Activities. Partner will use its best efforts to (a) promote and market Zoey and (b) identify for Zoey prospective Qualified Referrals. Should Zoey assign Partner a territory, in no event shall Partner engage in any marketing or promotional activity related to Zoey in any area, location, territory or jurisdiction outside of such territory as defined by Zoey from time to time. Partner shall bear all costs and expenses for such activities unless Zoey, in its sole discretion, approves in writing in advance the incurrence of such costs and expenses.

2.2 Branded Materials. All Branded Materials will be solely provided by Zoey alone except where agreed to by Zoey in writing in advance. Zoey will provide Partner with copies of or access to Branded Materials. The Branded Materials shall be accessible from the Zoey Partner Program website (once such website is developed) and/or via email from Zoey directly to Partner. The Branded Materials are provided “as is” and without warranty (express or implied) of any kind.

2.3 Use of Branded Materials. Partner may display Branded Materials on the Websites solely for the purpose of marketing and promoting Zoey brands promoted by Zoey and by Zoey Related Entities during the term of this Agreement, or until such earlier time as Zoey may, upon reasonable prior notice, instruct Partner to cease displaying the Branded Materials. Partner may not alter, amend, adapt, edit or translate the Branded Materials without Zoey’s prior written consent. Nothing contained in any Branded Materials shall in any way be deemed a representation or warranty of Zoey or of any Zoey Related Entity. The Branded Materials shall at all times be the sole and exclusive property of Zoey and no rights of ownership shall at any time vest with Partner even in such instances where the partner has been authorized by Zoey to make changes or modifications to the Branded Materials or create or develop new ones.

2.4 E-Mail Internet Marketing. In no event shall Partner engage in any e-mail marketing or promotion with respect to Zoey and/or any Zoey Related Entity except as expressly set forth in this Agreement. In the event that Partner has an Opt-in List, Partner may make a written request to Zoey to send e-mails regarding the offering of Zoey and Zoey Related Entities to the individuals on the Opt-in List. In the event Zoey approves such request in its sole discretion, Partner shall comply with all applicable laws, rules, regulations and directives, including, without limitation, those relating to e-mail marketing and “spamming”. Without limiting the generality of the foregoing, Partner shall (a) not send any e-mail regarding Zoey and/or Zoey Related Entities to any individual or entity that has not requested such information and (b) always include “unsubscribe” information at the top and bottom of any e-mail regarding Zoey, Zoey Related Entities and/or the Platform.

2.5 Unauthorized and Prohibited Marketing Activities. In addition to the restrictions of Section 2.4 above, Partner shall not:

– Engage in any fax, broadcast or telemarketing and any other offline marketing methods with respect to Zoey, Zoey Related Entities and/or the Platform

– Use Malware and/or Spyware techniques or use any other aggressive advertising or marketing methods in any of its dealings relating to Zoey, Zoey Related Entities and/or the Platform

– Make any false, misleading or disparaging representations or statements with respect to Zoey, Zoey Related Entities or the Platform

– Misrepresent Partner’s affiliation with Zoey (Partner is not an agent or employee of Zoey)

– Engage in any other practices which may affect adversely the credibility or reputation of Zoey, Zoey Related Entities or the Platform, including, without limitation, using any Website in any manner, or having any content on any Website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party

2.6 Prohibited Marketing Activities by Partner. Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords) or domain names that use Zoey or Zoey’s trademarks and/or variations and misspellings thereof.

2.7 Zoey Trademarks. During the term of this Agreement, Zoey hereby grants to Partner a limited, revocable, non-exclusive and non-transferable license to display the Zoey trademarks, solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use the Zoey trademark only as permitted hereunder; (b) it will use the Zoey trademark in a lawful manner and in strict compliance with all formats, guidelines, standards and other requirements prescribed by Zoey; (c) the Zoey trademark is and shall remain the sole property of Zoey; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Zoey trademark and all use thereof by Partner shall inure to the benefit of Zoey; and (e) Partner shall not, now or in the future, contest the validity of any Zoey trademark or use any term or mark confusingly similar to any Zoey trademark.

2.8 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 applicable laws, rules and regulations.

2.9 Partner Duty to Inform. Partner shall promptly inform Zoey of any information known to Partner related to any Qualified Referrals or prospective partners that could reasonably lead to a claim, demand or liability of or against Zoey and/or the Zoey Related Entities by any third party.

 

3. PARTNER COMMERCIAL TERMS

3.1 Commission Structure. Partner earns a one-time commission for each Qualified Referral that becomes a paying Zoey customer, calculated as follows:

  Plus or Pro Plan: 1 month of MRR

  Enterprise Plan:  1.5 months of MRR

“MRR” means the referred customer’s monthly recurring revenue at the time of their first paid invoice.

3.2 Payment Terms. Commission payments are made ninety (90) days after the referred customer pays their first invoice. Zoey will remit payment via check or electronic transfer within fifteen (15) business days of the commission becoming due.

Partner is responsible for providing Zoey with accurate payment information, including any required tax documentation (e.g., W-9). Zoey is not obligated to process payment until this documentation is received. If Partner fails to provide such information and/or documentation within thirty (30) days of Zoey’s request, Partner will be deemed to have waived its right to receive the commission payment.

All payments are subject to risk analysis considerations and Anti-Money Laundering procedures. Zoey reserves the right to demand and receive information about any Qualified Referral and to assess the competency of such referral for payments.

3.3 Exclusions. No commission is earned on:

– Referrals that were already in Zoey’s active sales pipeline at the time of introduction

– Customers referred by Partner who cancel or receive a full refund before the commission payment date

– Self-referrals (accounts owned or operated by Partner)

– Any referred customer whose first invoice has not been paid

 

4. ZOEY RESPONSIBILITIES

Zoey shall:

– Confirm or decline referral attribution within five (5) business days of receiving a referral registration

– Notify Partner when a referred customer signs a paid agreement

– Pay commissions in accordance with Section 3

– Provide Partner with reasonable access to Zoey demo materials and product information to support referral efforts

5. TERMINATION

5.1 Termination. Zoey may terminate this Agreement at any time without Cause, effective immediately upon notice to Partner. Zoey may terminate this Agreement at any time with Cause, effective immediately without notice to, or recourse for, Partner.

Partner can terminate this Agreement at any time, with or without Cause, effective immediately upon notice to Zoey.

Zoey’s obligation to pay Partner its commission under Section 3 shall terminate effective immediately if Zoey terminates this Agreement with Cause.

Zoey’s obligation to pay Partner commissions under Section 3 shall survive the termination of this Agreement if either Party terminates this Agreement without Cause, provided the Qualified Referral was registered and confirmed prior to the termination date and results in a paid subscription within six (6) months of the original referral date; otherwise, such obligation shall terminate effective on the date of termination.

5.2 Consequences of Termination. Upon expiration or termination of this Agreement: (a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Branded Materials and all Confidential Information); (b) Partner shall immediately cease displaying any Branded Materials on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease.

6. PROPRIETARY RIGHTS

6.1 Proprietary Rights of Zoey. As between Partner and Zoey, the Branded Materials, all demographic and other information relating to Qualified Referrals, prospective partners and Partners, the Platform and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Zoey or otherwise related to Zoey, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Zoey Property”) shall be and remain the sole and exclusive property of Zoey. To the extent, if any, that ownership of any Zoey Property does not automatically vest in Zoey by virtue of this Agreement or otherwise, Partner hereby transfers and assigns to Zoey, upon the creation thereof, all rights, title and interest Partner may have in and to such Zoey Property, including the right to sue and recover for past, present and future violations thereof.

7. CONFIDENTIALITY

Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement.

Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information; (ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement and compelling documentary evidence of such development exists; or (iii) is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party and such source is not breaching any provision of any agreement it may have with Zoey or any third party.

8. DISCLAIMER OF WARRANTY

Zoey makes no warranties whatsoever hereunder, and Zoey hereby expressly disclaims all warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Zoey further disclaims all representations and warranties, express or implied, that the Platform does not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction, including, but not limited to, any territory that Zoey might assign to Partner. Partner understands and agrees that the Platform may not satisfy all of the referred customers’ requirements and may not be uninterrupted or error-free.

9. LIMITATION OF LIABILITY AND INDEMNIFICATION

9.1 Limitation of Liability. Zoey shall have no liability with respect to the Platform or its obligations under this Agreement or otherwise for any indirect, consequential, exemplary, special, incidental or punitive damages even if Zoey has been advised of the possibility of such damages. In any event, Zoey’s liability to Partner under this Agreement for any reason will be limited to the amounts paid to Partner by Zoey during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.

9.2 Partner Indemnification. Partner agrees to indemnify, defend and hold harmless Zoey and any Zoey Related Entities and the directors, officers, employees, subcontractors and agents thereof (collectively, the “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) Partner’s breach of any provision, representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or willful misconduct; or (c) any warranty, condition, representation, indemnity or guarantee relating to Zoey and Zoey Related Entities granted by Partner to any Qualified Referral, Prospective Partner or other third party.

9.3 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 Section 9.2; provided, however, that any failure of the Indemnified Party to provide prompt written notice shall excuse Partner only to the extent that it is prejudiced thereby. 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 any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which consent shall not be unreasonably withheld.

10. NON-EXCLUSIVE REMEDIES

In the event (a) Partner markets or promotes Zoey and/or any Zoey Related Entity that promotes the Platform to any person or entity outside of any territory (if any) assigned by Zoey to Partner or (b) of any breach or threatened breach of any provision of Sections 2, 6 and/or 7 above, in addition to all other rights and remedies available to Zoey under this Agreement and under applicable law, Zoey shall have the right to (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) immediately terminate this Agreement and Partner’s engagement hereunder, (iii) receive a prompt refund of all amounts paid to Partner hereunder and (iv) be indemnified for any losses, damages or liability incurred by Zoey in connection with such violation, in accordance with the provisions of Section 9 above.

11. GENERAL PROVISIONS

11.1 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God, war, insurrection, terrorist activity, power failure or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.

11.2 Relationship Between the Parties. Although this Agreement refers to one of the Parties as a “Partner,” the Parties are not members of an association, partnership or joint venture in the legal sense. The Parties are independent contractors, and neither has a fiduciary duty to the other. Neither Party is an agent of the other Party. Neither Party may represent to any person that it has the power to bind the other Party on any contract or agreement or take any action reasonably likely to lead the public to believe it is the agent or representative of the other Party. This Agreement is non-exclusive. Either Party may provide services of the type described herein to any person, including a competitor of the other Party. Neither Party agrees to provide the other with any type of exclusivity in any market segment or geographic region.

11.3 Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally or by e-mail to the Party to which the same is directed; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid.

11.4 No Waiver. The failure of 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.

11.5 Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes any and all prior and contemporaneous agreements, written or oral, of the Parties with respect to the subject matter hereof. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision 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.

11.6 Assignment. 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, assigns and legal representatives. Zoey may assign this Agreement and its rights and obligations hereunder to (i) any of its Affiliates, or (ii) an acquirer of all of its assets, or (iii) any successor of Zoey by merger or consolidation, without the consent of 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 Zoey’s prior written consent, to be given or withheld in Zoey’s sole discretion. Any purported assignment or transfer by Partner without such prior written consent from Zoey shall be null and void, ab initio.

11.7 Applicable Laws. This Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law rules thereof.

11.8 Jurisdiction and Venue; Equitable Remedies. The Parties hereby expressly agree that if, under any circumstances, any dispute or controversy arising out of or relating to or in any way connected with this Agreement shall be the subject of any court action at law or in equity, such action shall be filed exclusively in (a) the United States District Court for the Southern District of New York or, if such court is not available because of jurisdictional reasons, (b) the Supreme Court of New York, New York County. Each Party agrees not to commence any action, suit or other proceeding arising from, relating to, or in connection with this Agreement except in such a court and each Party irrevocably and unconditionally consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, and hereby grants jurisdiction to such courts and to any appellate courts having jurisdiction over appeals from such courts or review of such proceedings.

Because the breach of the provisions of this Section 11.8 would cause irreparable harm and significant injury to the Parties, which would be difficult to ascertain and which may not be compensable by damages alone, each Party agrees that the other Party will have the right to enforce the provisions of this Section 11.8 by injunction, specific performance or other equitable relief in addition to any and all other remedies available to such Party without showing or proving any actual damage to such Party.

11.9 Survival. Sections 1, 5.2 and 7 through 11 shall survive the expiration or termination of this Agreement.

11.10 Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, a court may reform such provision to the extent necessary and in such a manner as to effect the original intention of the Parties; all remaining provisions shall continue in full force and effect.

11.11 Amendment and Modification. Zoey reserves the right to cancel, amend or modify this Agreement in its entirety, including Partner Commercial Terms, upon thirty (30) days’ notice to Partner.

11.12 Federal Trade Commission Considerations. The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with Zoey, Partner receives compensation for the referrals it makes to Zoey. This may establish a “material connection” according to FTC rules, which creates an obligation on the part of Partner to provide disclosure to its consumers.

Full compliance with these guidelines requires that information be provided by Partner to its consumers clearly and conspicuously, outlining that Partner is being compensated for referring clients to Zoey. For further information, Partner may refer to the statement released by the FTC regarding these guidelines.