“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity (control, for purposes of this definition, meaning (a) direct or indirect ownership or control of more than 50% of the voting interests of the subject entity or (b) control of management or operational decisions by contract).
“Backstage Demo Organization” means the virtual space provided to Referral Partner at SpotMe’s Backstage Content Management System (“Backstage”) for demonstration purpose only.
“Customer Data” means all information processed or stored on computers or other electronic media by End Client or on End Client’s behalf, or provided to SpotMe for such processing or storage, as well as any information derived from such information. Customer Data includes, without limitation: (a) information on paper or other nonelectronic media provided to SpotMe for computer processing or storage, or information formerly on electronic media; (b) information provided to SpotMe by End Client’s customers or other users or by other third parties; and (c) personally identifiable information from such customers, users or other third parties.
“End Client” means an entity purchasing Services for its own use and not for resale, redistribution, remarketing, or any other use.
“Legitimate Prospect” means a contact, tied to a domain and/or business entity, with which Referral Partner has established a demonstrable business relationship and who Referral Partner is actively approaching and is engaging with in a pursuit of a sale.
“Net Revenue” means the initial fee, any renewal fees, and any upgrade or downgrade fees that are actually paid to SpotMe by End Client and for the Subscription Service. Net Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds/credit notes not due to a contract breach by SpotMe, and (ii) shall exclude any one-time software fees, implementation, customization, training, consulting or other Professional Services, or fees for third-party products or services.
“Organization” means a deployment of SpotMe with a defined set of Backstage users. An Organization is the virtual space provided to End Client and includes all End Client’s data, and is separate from all other Organizations.
“Professional Services” means human-based services, including but not limited to implementation of services, introduction and standard training, availability of a program manager/director, an event producer/project manager, and an event coordinator/data analyst.
“Qualified Transaction” means a fully executed written agreement between SpotMe and Referral Partner Lead for sale of the Subscription Service. For avoidance of doubt, an agreement signed between SpotMe and Referral Partner Lead’s affiliate or subsidiary which is registered in a jurisdiction different from Referral Partner Lead’s country of registration and which is not referred by Referral Partner, shall not be considered a Qualified Transaction.
“Referral Partner” means the company identified on page 1 of this Agreement, acting as an intermediary, referring clients to SpotMe and reasonably cooperating with and assisting SpotMe in the sale of its Services directly to End Clients. To qualify as a Referral Partner, the latter shall have signed this Agreement and/or have accepted its terms when registering a prospect at www.spotme.com/partnerprogram
“Referral Partner Lead” means an End Client that is referred by Referral Partner to SpotMe which: (i) has never been contracted by SpotMe; (ii) is not at the time of submission or sixty (60) days prior negotiating an agreement for sale of the Subscription Service with SpotMe directly or through another Referral Partner; and (iii) is a Legitimate Prospect whose contact information was legally obtained.
“Referral Partner Revenue Share” means an amount equal to twenty percent (20%) of Net Revenue recognized in the related fiscal year and paid to SpotMe by a Referral Partner Lead for a Qualified Transaction.
“Service Partner” means a company that provides Professional Services related to the SpotMe Platform to End Clients. In order for the company to qualify as a Service Partner, it shall have at least one employee or contractor who has, as of the Effective Date and subject to the provisions of Section 2.3 below, completed SpotMe’s training program.
“SpotMe” means the company SpotMe Holding SA with registered office at Avenue du Théâtre 1, 4th floor, 1005 Lausanne, Switzerland and including its subsidiaries SpotMe SA with registered office at Avenue du Théâtre 1, 4th floor, 1005 Lausanne, Switzerland, SpotMe Inc. with registered office at 935 W Chestnut St #515, Chicago, IL 60642, USA, SpotMe Pte. Ltd. with registered office at 16 Raffles Quay #33-03, Hong Leong Building, Singapore 048581, Singapore, or SpotMe EOOD, Ulica 17 Henrik Ibsen, 6th floor, 1407 Sofia, Bulgaria.
“SpotMe Platform” means the entire SpotMe solution.
“Subscription Service” means SpotMe’s software-as-a-service offering ordered by End Client under a standalone contract, an order form, or another signed ordering document between SpotMe and End Client.
“Workspace” means a virtual space provided to End Client that includes all the Client’s data related to a specific event. A Workspace belongs to an Organization and is separate from all other Workspaces.
- TRAINING AND SUPPORT
- SpotMe will make available to Referral Partner, without charge, various webinars, sales materials, demo workspaces and other resources made available as part of the Program (collectively, “Referral Partner Toolset”). SpotMe may change or discontinue any or all parts of the Referral Partner Toolset at any time without notice.
- In order for Referral Partner to be given access to Backstage, the latter shall have at least one employee or contractor who has, subject to the provisions of Section 2.3 below, completed SpotMe’s training program. If SpotMe makes a Backstage Demo Organization available to Referral Partner, then Referral Partner will use it solely for its own education, demonstration, and evaluation purposes. Referral Partner is not permitted to lease, distribute, license, sell or otherwise commercially exploit the Backstage Demo Organization or use it for any other purpose. Referral Partner shall not use any Customer Data with the Backstage Demo Organization. Referral Partner shall only use its own data (data and information that Referral Partner specifically owns) or the synthetic data provided to Referral Partner for demonstration purposes by SpotMe. Referral Partner shall not exceed the user limits provided for Referral Partner in the Backstage Demo Organization and will utilize a reasonable number of objects in its use of the Backstage Demo Organization. SpotMe’s Terms of Agreement apply to Referral Partner’s use of the demo account. SpotMe reserves the right to suspend, modify, or discontinue any or all part of the Backstage Demo Organization at any time without prior notice to Referral Partner. In the event of a conflict between the terms that apply to the Backstage Demo Organization as specified in this Agreement and the SpotMe’s Terms of Agreement, the terms of this Agreement shall control.
- Referral Partner and/or Service Partner acknowledge that in order to maintain their Referral Partner or Service Partner status, or when acting solely as a Referral Partner to be given access to Backstage, at least one Referral/Service Partner employee or contractor shall have completed SpotMe’s training program within the last 12 months. Referral Partner shall provide evidence for completed trainings not later than January 15 of each contract year. Failure to provide such evidence may result in termination of this Agreement, pursuant to Section 7.4 below or suspension of Backstage access.
- REGISTRATION OF REFERRAL PARTNER LEADS
- Referral Partner must register each prospect with SpotMe using the Referral Partner Lead Registration Form available on https://spotme.com/partnerprogram prior to the close of a Qualified Transaction. To register a prospect, Referral Partner must provide at least the following information about each prospect: contact first name, contact last name, email, URL and Referral Partner name. If the prospect is accepted by SpotMe as Referral Partner Lead, SpotMe shall provide Referral Partner with a written confirmation via email within 5 business days (“Approval Period”) after the prospect has been officially introduced to a SpotMe representative. Notwithstanding the foregoing, SpotMe may choose not to accept a prospect, in its reasonable discretion. SpotMe may choose to do so within the Approval Period or may deregister and reject a prospect if SpotMe determines a prospect does not meet the criteria outlined in Section 1 at any point after acceptance, even in cases where it was initially accepted. A prospect is not considered a Referral Partner Lead if it is not registered or if it is not accepted.
- Each accepted registration will expire six months (180 days) from the date the Referral Partner Lead was registered. If Referral Partner is actively pursuing a prospect and the registration is expired, then Referral Partner may re-register the Referral Partner Lead manually for another ninety (90) days.
- Once the Referral Partner Lead is ready to purchase, SpotMe will, at its discretion, accept an order for provision of Services to complete a Qualified Transaction. If Referral Partner Lead does not purchase the Subscription Service before its registration expires, Referral Partner will need to complete the registration process again in order to re-qualify for Referral Partner Revenue Share for that Referral Partner Lead.
- Referral Partner certifies that it is providing the Referral Partner Lead’s information, including but not limited to personal identifiable information, to SpotMe in accordance with all applicable laws and regulations.
- REFERRAL PARTNER REVENUE SHARE AND PAYMENT
- In consideration for the services performed, Referral Partner is provided with a lifetime Referral Partner Revenue Share, unless SpotMe terminates this Agreement for cause pursuant to Section 7.4 below.
- SpotMe shall issue a Referral Partner Revenue Share statement to Referral Partner by the subsequent January 15 of the related fiscal year. Referral Partner shall review the statement, raise, and resolve any issues and/or concerns and issue a related invoice to SpotMe reflecting Referral Partner’s bank details not later than January 31 of the related fiscal year.
- Referral Partner acknowledges that Referral Partner Revenue Share will be adjusted for any accounts receivable writes off due to non-payment from End Client. In addition, if any of Reseller’s related invoices are past due at the time of issuance of a Referral Partner Revenue Share statement, no Referral Partner Revenue Share payments will be issued by SpotMe until the full payment by Reseller of all outstanding amounts.
- Payment is due net 30 days following receipt by SpotMe of the related invoice.
- PROPRIETARY RIGHTS
- SpotMe’s Proprietary Rights. No license to any software is granted by this Agreement. SpotMe’s Subscription Service is protected by intellectual property laws, belongs to and is the property of SpotMe or its licensors (if any). SpotMe retains all ownership rights in the Subscription Service. Referral Partner agrees not to copy, rent, lease, sell, distribute, or create derivative works based on the SpotMe content, or the SpotMe’s Subscription Service in whole or in part, by any means, except as expressly authorized in writing by SpotMe.
- Service Partner’s Proprietary Rights. When Referral Partner also acts as a Service Partner, the latter grants SpotMe a worldwide, limited-term license to use at its own discretion Service Partner's corporate brand name and logo to identify Service Partner as a certified partner on SpotMe’s website or in marketing or publicity materials. Subject to the limited license granted herein, SpotMe acquires no right, title or interest from Service Partner to any of Service Partner’s corporate brand name and other related information.
- During the term of this Agreement, each party may have access to confidential information of the other Party that the disclosing party identifies as being confidential or that the receiving party reasonably should know is confidential (“Confidential Information”). Confidential Information of SpotMe includes, without limitation, (i) the source code for any software comprising the Services, (ii) any accompanying documentation, (iii) information proprietary to SpotMe or to any person or entity contracted by SpotMe, which provides services, materials, products, or supplies in connection with the Services (a “Supplier”), (iv) this Agreement and the terms, conditions and pricing contained in this Agreement, and (v) all of SpotMe’s technology involved in providing the Services. Except as required by law, neither party shall in any way use or disclose any Confidential Information of the other party except as specifically contemplated by this Agreement or with the prior written consent of the other party.
- This Agreement imposes no obligation upon a party with respect to the discloser’s Confidential Information which the recipient can establish by legally sufficient evidence: (a) was, prior to receipt from discloser, in the possession of, or rightfully known by, recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement or without a violation of an obligation of confidentiality owed to the discloser; (c) is obtained by the recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; or (d) is independently developed by the recipient without reference to Confidential Information of the discloser.
- Each party understands that the Confidential Information constitutes valuable business assets of the discloser, and the unauthorized disclosure of Confidential Information may irreparably harm the discloser. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the recipient, the discloser shall be entitled to seek injunctive relief and any other remedy available at law or equity.
- TERM AND TERMINATION
- Term. This Agreement will apply for as long as Referral Partner participates in the Program and fulfill all the participation requirements under the Program, until terminated.
- Termination Without Cause. Both Referral Partner and SpotMe may terminate this Agreement on thirty (30) days written notice to the other party.
- Termination for Agreement Changes. If SpotMe updates or replaces the terms of this Agreement, Referral Partner may terminate this Agreement on ten (10) days written notice to SpotMe.
- Termination for Cause. SpotMe may terminate this Agreement and/or suspend End Client’s access to the Subscription Service:
- upon thirty (30) days’ notice to Referral Partner of a material breach if such breach remains uncured at the expiration of such period;
- automatically, within thirty (30) days of Referral Partner failing to meet the Program requirements applicable to Referral Partner in its capacity as Service Partner;
- immediately, if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
- immediately, if End Client violates SpotMe’s Terms of Agreement or applicable local, state, federal, or foreign laws or regulations;
- immediately, if Referral Partner breaches confidentiality obligations under this Agreement or infringes or misappropriates SpotMe’s intellectual property rights; or
- immediately, if SpotMe determines that Referral Partner is acting, or has acted, in a way that has or may negatively reflect on or affect SpotMe, its prospects, or its customers.
- Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by SpotMe, (ii) by Referral Partner according to the ‘Termination for Agreement Changes’ section, shall not affect SpotMe’s obligation to pay Referral Partner any earned Referral Partner Revenue Share.
- Upon termination or expiration, Referral Partner will immediately discontinue all use of SpotMe’s trademark and will remove all SpotMe badges and references to this Program from its website(s) and other collateral.
- REPRESENTATIONS AND WARRANTIES
Referral Partner represents and warrants that: (i) it has all sufficient rights and permissions to provide the prospect data to SpotMe for SpotMe’s use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) Referral Partner’s participation in this Program will not conflict with any of Referral Partner’s existing agreements or arrangements; (iii) Referral Partner owns or has sufficient rights to use and to grant to SpotMe the right to use Referral Partner’s trademarks, service marks and logos; and (iv) Referral Partner and End Client comply with the Sanctions provisions set out in Section 13.6 below.
Referral Partner will indemnify, defend and hold SpotMe harmless, at its own expense, against any third- party claim, suit, action, or proceeding (each, an "Action") brought against SpotMe (and its officers, directors, employees, Referral Partners, service providers, licensors, and affiliates) by a third party not affiliated with SpotMe to the extent that such Action is based upon or arises out of (a) Referral Partner’s participation in the Program, (b) SpotMe’s use of the prospect or lead data provided by Referral Partner, (c) Referral Partner’s noncompliance with or breach of this Agreement, (d) Referral Partner’s use of the Backstage Demo Organization, or (e) SpotMe’s use of Referral Partner’s trademarks, service marks and logos. SpotMe will: notify Referral Partner in writing within thirty (30) days of becoming aware of any such claim; give Referral Partner sole control of the defense or settlement of such a claim; and provide Referral Partner (at Referral Partner’s expense) with any and all information and assistance reasonably requested by Referral Partner to handle the defense or settlement of the claim. Referral Partner shall not accept any settlement that (i) imposes an obligation on SpotMe; (ii) requires SpotMe to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on SpotMe without SpotMe’s prior written consent.
- DISCLAIMERS; LIMITATIONS OF LIABILITY
- Disclaimer of Warranties. SPOTME AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SPOTME SERVICES, THE PROGRAM, OR THE BACKSTAGE DEMO ORGANIZATION FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE SPOTME SERVICES, THE PROGRAM, AND SPOTME BACKSTAGE DEMO ORGANIZATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. SPOTME DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SPOTME SERVICES, THE PROGRAM, AND SPOTME DEMO ACCOUNT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT.
- No Indirect Damages. EXCEPT FOR REFERRAL PARTNER’S LIABILITY ARISING FROM ITS OBLIGATIONS UNDER THE “CONFIDENTIALITY” SECTION, AND REFERRAL PARTNER’S LIABILITY FOR VIOLATION OF SPOTME INTELLECTUAL PROPERTY RIGHTS, 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.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SPOTME IS DETERMINED TO HAVE ANY LIABILITY TO REFERRAL PARTNER OR ANY THIRD PARTY, THE PARTIES AGREE THAT SPOTME’S AGGREGATE LIABILITY WILL BE LIMITED THE TOTAL AMOUNT OF SUBSCRIPTION SERVICES FEES PAID BY END CLIENT TO SPOTME IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
- SpotMe Backstage Demo Organization. SPOTME DISCLAIMS ALL LIABILITY WITH RESPECT TO THE BACKSTAGE DEMO ORGANIZATION THAT REFERRAL PARTNER USES. SPOTME DOES NOT PROMISE TO MAKE THE SPOTME BACKSTAGE DEMO ORGANIZATION AVAILABLE TO REFERRAL PARTNER, AND SPOTME MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN ITS OWN DISCRETION.
- This Agreement does not create an exclusive agreement between Referral Partner and SpotMe. Both Referral Partner and SpotMe will have the right to recommend similar products and services of third parties and to work with other parties in connection with the sale and use of similar services and products of third parties.
- Partner’s participation in the Program is not limited to a single role (a Service Partner, or a Referral Partner), however, the eligibility requirements for each level of participation set out in Section 1 above must be met and maintained separately.
Referral Partner agrees not to intentionally solicit for employment any of SpotMe’s employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both Referral Partner and SpotMe acknowledge that (i) any public job posting, or public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either SpotMe employees or contractors.
- Amendment; No Waiver. SpotMe may update and change any part or all of this Agreement, including by replacing it in its entirety. If SpotMe updates or changes this Agreement, the updated Agreement will be posted at www.spotme.com/partnerprogram and SpotMe will let you know by email. The updated Agreement will become effective and binding on the next business day after it is posted. When SpotMe changes this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. If Referral Partner does not agree to the update, change or replacement, Referral Partner can choose to terminate pursuant to Section 7.3 above. 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.
- Applicable Law. This Agreement shall be governed by the laws of Switzerland, without regard to the conflict of laws provisions thereof. In the event either of the parties 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 courts of the canton of Vaud, Switzerland.
- 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.
- Independent Contractor. The Parties agree that Referral Partner is an independent contractor of SpotMe and that this Agreement in no way creates any employee/employer relationship or any partnership, agency, or other joint venture or enterprise, between the Parties and neither Party has the right or authority to bind the other Party to any obligation.
- Compliance with Applicable Laws. Referral Partner shall comply and shall ensure that any third parties performing sales or referral activities on Referral Partner’s behalf comply, with all applicable foreign and domestic laws (including without limitation export laws, privacy regulations and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. Referral Partner shall not engage in any deceptive, misleading, illegal, or unethical marketing activities, or activities that otherwise may be detrimental to SpotMe, its customers, or to the public.
- Sanctions. None of Referral Partner, End Client, nor, to the knowledge of Referral Partner, any directors, director nominees, officers, or employees of Referral Partner, or any Referral Partner, affiliate or other person acting on behalf of Referral Partner, is currently the subject or the target of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority (collectively, “Sanctions”); nor is Referral Partner or End Client located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria; and Referral Partner or End Client will not directly or indirectly sell or use the Services or otherwise make available such Services to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that is the subject or target of Sanctions or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of applicable Sanctions. Since its inception, Referral Partner or End Client has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any sanctioned country.
- 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.
- Notices. Any notice to SpotMe under this Agreement should be addressed to:
Avenue du Théâtre 1, 4th floor, 1005 Lausanne, Switzerland
Attention: Group Legal Counsel
All notices related to the Agreement will be in writing and will be effective upon (a) personal delivery, (b) the third business day after mailing, or (c), on the day of sending by email. All notices to Referral Partner will be addressed to the relevant billing contact designated by Referral Partner.
- Entire Agreement. This Agreement is the entire agreement between the parties for the Program. SpotMe’s obligations are not contingent on the delivery of any future functionality or features of the SpotMe Platform or dependent on any oral or written public comments made by SpotMe regarding future functionality or features of the SpotMe Platform.
- Assignment. Referral Partner 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 SpotMe’s prior written consent. SpotMe 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.
- 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.
- No Licenses. SpotMe grants to Referral Partner only the rights and licenses expressly stated in this Agreement, and Referral Partner receives no other rights or licenses with respect to SpotMe, SpotMe’s Platform, trademarks, or any other property or right of SpotMe.
- Sales by SpotMe. This Agreement shall in no way limit SpotMe’s right to sell its Services, directly or indirectly, to any current or prospective customers.
- 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.
- Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Referral Partner Revenue Share and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.
The undersigned have executed this Agreement as of the Effective Date first written above: