Robly Solution Provider Terms of Service

Updated on: May 30, 2016 Category: Miscellaneous

FOREWORD

 

The relationship we have with our solution provider partners is of the utmost importance to us. We go above and beyond to make sure that you are treated with the respect and fairness we feel that our partners deserve. All that we ask in return is that same level of consideration. This solution provider partner agreement was written with our partners in mind, as well as how to best protect the reputation we have worked so hard to create since our inception. With that said, please bear with us through this legal formality.

 

If you have any questions at all, please do not hesitate to reach out and let us know. We are very strong believers in straightforward, honest, and open lines of communication. For the quickest response please email me at dan.rovner@robly.com. You can also give me a call at 646-202-1677.

 

Best regards,

Dan Rovner

Director of Business Development, Robly

 

ROBLY® SOLUTION PROVIDER PARTNER AGREEMENT

 

ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU BY CLICKING THE “I AGREE TO ROBLY’S  TERMS AND CONDITIONS & PRIVACY POLICY” BUTTON DISPLAYED HEREWITH. YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE CLICKING THE “I AGREE TO ROBLY’S  TERMS AND CONDITIONS & PRIVACY POLICY” BUTTON. BY CLICKING ON THE “I AGREE TO ROBLY’S  TERMS & CONDITIONS & PRIVACY POLICY” BUTTON, YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN YOU MUST NOT CLICK ON THE “I AGREE TO ROBLY’S  TERMS AND CONDITIONS & PRIVACY POLICY” BUTTON AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE SOLUTION PROVIDER PARTNER PROGRAM.

 

Last revised May 24, 2016

 

This Robly Solution Provider Partner Agreement (the “Agreement”) is entered into as of the date that this Agreement is accepted by Robly as set forth below after you click on the “I agree to Robly’s Terms and Conditions & Privacy Policy” button on behalf of yourself, your company, organization or other legal entity for whom you have authority to enter into this Agreement (hereafter, such party shall be referred to as “Partner”). This Agreement is between Partner and Robly Digital Marketing, a Delaware limited liability company (“Robly”). Robly and Partner are each hereinafter sometimes individually referred to as the “Party” and collectively as the “Parties.”

 

Robly and Partner wish to enter into this Agreement to facilitate Partner’s efforts to promote and market Robly’s products and services, all on the terms and conditions hereinafter set forth.

 

The Parties hereby agree as follows:

 

  1. Definitions.

 

(a) “Co-Branded Landing Page” means a Robly Site, from which prospective Customers may subscribe to the Products, that is co-branded with Marks of both Partner and Robly.

 

(b) “Robly Materials” means any information, content and materials provided by Robly to Partner describing the Products for use in marketing the Products.

 

(c) “Robly Site” means a Robly web site, including www.robly.com and any related domains and subdomains, through which prospective customers may subscribe to the Products and/or customers may access and use the Products.

 

(d) “Customer” means any Managed Customer or Unmanaged Customer that has not been removed from Partner’s account by Robly (i) following such Customer’s request or (ii) because such Customer requires access to certain templates or other features and belongs under another partner, as determined by Robly (e.g. a franchisee who requires access to a franchisor’s templates).

 

(e) “Customer Data” means information relating to Customers collected by or for Robly in connection with the Products, including the Customer’s contact information.

 

(f) “Email Marketing Product” means a variety of online tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns provided by Robly to businesses and organizations that Robly markets under the name “Email Marketing.”

 

(g) “Integrated Product” means a variety of online tools and resources to create, launch, and manage online email, social media and other campaigns provided by Robly to businesses and organizations.

 

(h) “Intellectual Property” means any and all intellectual property or proprietary rights under any jurisdiction including (i) Marks, and all goodwill associated therewith and symbolized thereby; (ii) inventions, discoveries and ideas, whether patentable or not, and all patents, registrations, and applications thereof; (iii) published and unpublished works of authorship, whether copyrightable or not (including databases and other compilations of information), copyrights therein and thereto, and registrations and applications thereof; (iv) trade secrets; (v) all moral rights in the foregoing (that is, the right to claim authorship of or object to the modification of any work); and (vi) all applications, renewals, extensions, restorations and reinstatements of the foregoing.

 

(i) “Managed Customer” means a third party that has subscribed to the Products where the Partner has complete access to such third party’s account (including its Subscriber Data) by means of the Partner’s Robly Master Account.

 

(j) “Marks” means the trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations of a Party.

 

(k) “Master Account” means a master account that Robly may make available to Partner in Robly’s sole discretion.

 

(l) “Partner Site” means Partner’s web site through which prospective Customers will access the Co-Branded Landing Page.

 

(m) “Products” means the Revenue/Discount Products and any other Robly online products and services

 

(n) “Revenue/Discount Products” means the following Robly online products and services: the Email Marketing Product and any other products that Robly offers a revenue share or discount on, in its sole discretion.

 

(o) “Subscriber” means for each Customer, the individuals or entities contained within a Product database for such Customer’s use of such Products.

 

(p) “Subscriber Data” means all information and data relating to Subscribers collected by Robly in connection with the Customer’s use of the Products, including Subscribers’ names, addresses and email addresses.

 

(q) “Unmanaged Customer” means a third party that has subscribed to the Products through use of the Co-Branded Landing Page where the Partner does not have access to such third party’s account (including its Subscriber Data) by means of the Master Account.

 

(r) “User Agreements” means Robly’s Web Site and Products Terms and Conditions of Use, Privacy Statement, Anti-Spam Policy, and any other acceptable use policy, content restrictions, user agreements, and other terms and conditions governing use of the Products, generally available through the Robly Site, as each of the foregoing may be amended by Robly from time to time in its sole discretion.

 

  1. Activities and Responsibilities.

 

(a) Appointment. Robly wishes to engage Partner on a non-exclusive basis to provide the resale, referral, promotion and marketing services set forth in this Agreement, and Partner accepts such engagement and wishes to refer, promote and market the Products. Partner understands that a prerequisite to participation in this program may be successful passage of a background check, as determined in Robly’s sole discretion.

 

(b) Marketing and Promotion. Partner shall actively promote and market the Products on the Partner Site and in promotional messages to Customers and prospective Customers in accordance with Robly’s then-current policies and requirements. Partner’s marketing efforts may include efforts such as sharing leads; disseminating marketing collateral; conducting training sessions, sales meetings, and informational briefings; making joint sales presentations and product demonstrations; and developing marketing strategies with respect to its marketing obligations hereunder. It is expected that Partner will adhere to the same industry best practices with respect to its marketing activities as Robly. In connection with its marketing activities hereunder, Partner agrees to represent itself accurately with respect to any Robly certification it may have.

 

(c) Product Resale. Robly, in its sole discretion, may permit Partner to resell some or all of the Products to prospective Customers through use of the Master Account. In the event that Partner is to be invoiced directly for all or a portion of its Customer’s use of the Products in accordance with Robly policies and procedures, Partner shall be solely responsible for all payments due to Robly in connection with such use, whether or not each Customer pays Partner for such use.

 

(d) Link from Partner Site to Co-Branded Landing Page. Promptly following the Effective Date (defined below), the Parties will establish a link, using links and navigation procedures specified by Robly from the Partner Site to the Co-Branded Landing Page. Upon establishing such links and navigation procedures, Robly shall make the Products available to prospective Customers, subject to the User Agreements.

 

(e) Marketing Collateral. Robly shall provide Partner with marketing collateral (which may include electronic marketing materials and corporate logo, marketing brochures, product lists, tutorials or demonstrations) concerning the Products for Partner to distribute to prospective Customers and other valid purposes. Robly may also provide opportunities for Partner to modify certain of the Robly Materials expressly designated for such purpose by incorporating Partner’s Marks, subject to Partner’s compliance with Section 4(c) hereof.

 

(f) Limitations. Partner is authorized to represent to prospective Customers only those facts about the Products as are stated in current Product descriptions and advertising or in the Robly Materials. During the Term, Partner may only use the Products to promote the Products and Partner’s products and services to current or prospective Customers (for example, Partner may not send out emails on behalf of its Customers by means of Partner’s Email Marketing Product account).

 

(g) Robly Policy and End User Requirements. Partner agrees to Robly’s policies posted on the Robly Site and in effect from time to time, including the User Agreements. Partner shall not distribute or otherwise make available the Products to any third party (each an “End User”) except through the Co-Branded Landing Page or the Master Account. In any case, Partner shall not make the Products available to an End User unless such End User obtains a subscription for the Products (directly or indirectly through Partner) and acknowledges and agrees to abide by, or Partner is authorized to bind End User to abide by, the User Agreements. Partner agrees to use commercially reasonable efforts to ensure its Customers comply with the User Agreements and will cooperate with Robly to investigate any alleged breaches thereof.

 

(h) Solution Provider Program. In connection with Partner’s appointment as a marketing partner of Robly, Partner will be entitled to take advantage of the Solution Provider Program Schedule currently in effect (the “Program Schedule”), which can be found on the Robly Site and may be amended by Robly from time to time. Partner is responsible for reviewing the Program Schedule from time to time and remaining aware of the requirements and benefits offered therein. The Program Schedule, including any minimum standards, discounts and revenue share described therein, is subject to change at any time in Robly’s sole discretion, and if Partner does not agree to any such changes, Partner must terminate this Agreement. Robly will use good faith efforts to notify Partner prior to the effectiveness of any significant change to the Program Schedule. Trying to manipulate data in an attempt to circumvent the Program Schedule is prohibited. Any disputes about any benefits owed to Partner under the Program Schedule or otherwise must be submitted to Robly in writing within sixty (60) days of the date such benefits were made available or payments were made by Robly. Partner agrees to waive all disputes not brought within the sixty (60) day period, and all such charges will be final and not subject to challenge. Robly’s obligation to provide Partner with any of the benefits set forth on the Program Schedule shall take effect upon the Effective Date and continue for the duration of the Term, but shall not survive beyond the termination of the Agreement. Partner will not be entitled to receive any benefits under the Program Schedule with respect to Customers that are not in compliance with the User Agreements.

 

(i) Certification. Partner will not hold itself out as a “certified” partner of Robly without the prior written consent of Robly and unless it has fulfilled and maintained the then current requirements applicable to such designation. Robly may withdraw Partner’s right to promote, market or otherwise use such designation at any time in Robly’s sole discretion.

 

(j) Consent to Contact. By entering into this Agreement, Partner consents to receiving email, text or any other type of messages from Robly to inform it of changes or additions to the Products, this Agreement, the Solution Provider Program and any other matter related to the foregoing and for general marketing purposes (Partner may unsubscribe from marketing messages at any time, but not transactional messages). Partner acknowledges that Robly may, but is not obligated to, monitor or record any telephone conversations and chat texts for quality control purposes, for purposes of training employees and for Robly’s own protection.

 

  1. Partner Marketing Account. Subject to Robly’s then-current policies and procedures, Robly shall provide Partner with a free Robly account during the Term (the “Partner Marketing Account”). The Partner Marketing Account includes the features and limitations set forth on Exhibit A attached hereto and made a part of this Agreement. Partner’s use of the Partner Marketing Account is subject to the User Agreements (other than with respect to any fees waived, as described on Exhibit A. The Partner Marketing Account may not be resold or sublicensed. Notwithstanding anything set forth herein to the contrary, Robly reserves the right, in its sole discretion and with or without notice, to modify the features and limitations of the Partner Marketing Account, which includes the right to remove the right to such account entirely.

 

  1. Intellectual Property.

 

(a) IP Ownership. Robly shall retain sole and exclusive right, title, and interest to each Robly Site, the Products, the technology underlying or related to the Products, Robly’s Intellectual Property, including all intellectual property rights in and to all aspects of the Products, and the Robly Materials. Partner shall retain sole and exclusive right, title, and interest to Partner’s Intellectual Property. Except as licensed herein, this Agreement does not transfer any Intellectual Property rights between the Parties.

 

(b) Marks License.

 

(i) Robly Marks. During the Term and subject to the terms and conditions set forth herein, Robly grants to Partner a non-exclusive, non-transferable, royalty-free right and license to use and publicly display the Robly Marks solely (A) in connection with any activities set forth herein, (B) with prior written approval of Robly in connection with each use, and (C) in accordance with Robly’s standard trademark guidelines or other restrictions imposed in the approval.

 

(ii) Partner Marks. During the Term and subject to the terms and conditions set forth herein, Partner grants to Robly a non-exclusive, non-transferable, royalty-free right and license to use and publicly display the Partner Marks solely (A) in connection with any activities set forth herein, (B) with prior written approval of Partner in connection with each use, and (C) in accordance with Partner’s standard trademark guidelines provided to Robly or other restrictions imposed in the approval.

 

(iii) Trademark Review and Approval. Each Party will have the right to pre-approve any and all uses of such Party’s Marks, including any marketing collateral (whether offline or online) and press releases related to the Agreement.

 

(iv) Termination Based on Trademark Usage. Each Party shall be entitled to terminate this Agreement without penalty if, in its reasonable discretion, the use by the other Party of its Marks tarnishes, blurs, or dilutes its Marks or misappropriates the associated goodwill and such problem is not cured within three (3) business days of receiving notice of the problem.

 

(c) Sales and Marketing Materials License. During the Term, Robly grants Partner the non-exclusive, non-transferable, non-sub licensable right and license to: (i) use the Robly Materials during the Term solely in conjunction with the marketing and promotion of the Products, and (ii) modify certain of the Robly Materials expressly designated for such purpose by incorporating Partner’s Marks, subject to Robly’s prior written approval. All such modified materials will be deemed Robly Materials under this Agreement, except that Robly’s ownership of the Robly Materials shall not include any of Partner’s Marks included therein. Partner agrees that Partner will not at any time during the Term or thereafter assert or claim any interest in or do anything that may adversely affect the validity of the Robly Materials or Robly Marks, or any other materials, trademark, trade name or product designation belonging to or licensed to Robly.

 

(d) Data License. Subject to the terms and conditions of this Agreement, (i) Partner hereby grants to Robly a non-exclusive, worldwide, royalty-free, sublicensable, transferable, perpetual, irrevocable license to use the Customer Data and Subscriber Data to provide the Products to Partner and Customers and (ii) Partner hereby grants to Robly a non-exclusive, worldwide, royalty-free, sublicensable, transferable, perpetual, irrevocable license to use the Customer Data in connection with the Products and to communicate with Customers regarding the Products (including with respect to the marketing and sale of other Robly products and services). Partner represents that it has the right to grant the foregoing rights to Robly.

 

(e) Partner Directory. Notwithstanding anything set forth herein to the contrary, Robly shall have the right, but not the obligation, to include Partner’s name and logo in its partner directory and marketplace unless Partner provides Robly with written notification it does not want to be included therein. Partner acknowledges that Robly is under no obligation to have or maintain a partner directory or marketplace.

 

  1. Confidentiality and Non-Disclosure and Data Privacy.

 

(a) Confidential Information

 

(i) Defined. A Party’s “Confidential Information” is defined as any information of the disclosing Party, which (i) if disclosed in a tangible form is marked using a legend such as “Confidential” or “Proprietary” or if not so marked, should be reasonably understood by the receiving Party from the context of disclosure or from the information itself, to be confidential, or (ii) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving Party from the context of disclosure or from the information itself to be confidential. “Confidential Information” of Robly shall include any data about its customers or users that it makes available to Partner from time to time in its sole discretion (“Robly User Data”).

 

(ii) Mutual Obligations. Each Party shall (A) hold the other Party’s Confidential Information in confidence, (B) not disclose such Confidential Information to third parties nor use the other Party’s Confidential Information for any purpose other than as required to perform its obligations under this Agreement or as expressly permitted hereby and (C) use the same degree of care to protect the confidentiality of the other Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Such restrictions shall not apply to Confidential Information that (i) is already known by the recipient, (ii) becomes publicly known through no act or fault of the recipient, (iii) is received by recipient from a third party without a restriction on disclosure or use, or (iv) is independently developed by recipient without reference to the other Party’s Confidential Information. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the Party subject to such requirement shall immediately notify the disclosing Party upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information.

 

(iii) Ownership. All Confidential Information, unless otherwise specified in writing, shall remain the property of the disclosing Party.

 

(b) Data Privacy. Partner agrees to treat Personal Information (as defined below) in accordance with the provisions set forth below. With respect to Personal Information that is also Robly’s Confidential Information, the following obligations shall be in addition to the obligations set forth above (the Parties agreeing that in the event of any conflict, the provision affording the greater protection to the information shall control):

 

(i) Partner may receive or have access to certain personal, individually-identifiable information in connection with this Agreement, including Robly User Data (the “Personal Information”).

 

(ii) Partner shall only use or disclose the Personal Information as necessary to perform its obligations under this Agreement, or pursuant to the unambiguous prior consent of the individual (for which Partner has the responsibility of obtaining), or as otherwise required by law.

 

(iii) Partner shall implement reasonable precautions to protect the Personal Information from loss; misuse; and unauthorized access, disclosure, alteration, or destruction. Partner shall promptly report to Robly any improper or prohibited use or disclosure of the Personal Information of which it becomes aware.

 

(c) Subscriber Data. Robly and Partner each acknowledge that it shall not make any use of the Subscriber Data except as necessary for permitted use of the Products by Customers and/or Subscribers or as otherwise consented to by a Subscriber.

 

  1. Term and Termination.

 

(a) Acceptance; Term. Robly may, in its sole discretion, accept this Agreement within ten (10) days following the date that Partner clicks the “I agree to Robly’s Terms and Conditions & Privacy Policy” button (the date on which Robly provides such acceptance shall be the “Effective Date”). If Partner is accepted as a Robly partner, Partner will be notified at the email address Partner provided during the registration process; otherwise, Partner will not be eligible to participate in the Robly partner program described herein. If Robly does not accept this Agreement in writing by the end of the ten (10) day period, the Agreement is deemed rejected. This Agreement shall commence as of the Effective Date and shall remain in effect for a period of one (1) year from the Effective Date (the “Initial Term”). The Agreement shall thereafter automatically renew for successive one (1) year periods (each a “Renewal Term”; all such Renewal Terms together with the Initial Term, the “Term”), unless either Party sends written notice of non-renewal at least thirty (30) days prior to expiration of the Initial Term or Renewal Term, as applicable.

 

(b) Right to Terminate. Notwithstanding any other provision hereof, this Agreement may be terminated as follows: (i) by either Party with fifteen (15) days’ advance written notice; (ii) by Robly immediately and without advance notice if Partner does not log into their Account, in its sole discretion, within thirty (30) days of the Effective Date; (iii) in the event either Party materially breaches any of the provisions hereof, and such breach is not curable, this Agreement shall be immediately terminable by the non-breaching Party upon written notice to the other Party (any violation of the confidentiality, non-disclosure and data privacy provisions hereof shall constitute a non-curable breach); or (iv) immediately by either Party in the event that the other Party becomes insolvent, files or is forced to file any petition in bankruptcy, or makes an assignment for the benefit of its creditors.

 

(c) Effect of Termination. Any termination of this Agreement shall not release Partner from paying any fees owed to Robly for any periods prior to or after termination. Upon termination of this Agreement for any reason, all rights granted to Partner herein shall immediately cease, including any fee waivers granted to Partner in connection with the Partner Marketing Account and any Partner benefits described on the Program Schedule, and Partner shall immediately cease all marketing and promotion of the Products and all use of the Co-Branded Landing Page. Additionally, Partner shall immediately delete, destroy or return all originals and copies of any Robly Confidential Information, including all documentation, manuals, instructions and other information associated with the products and services, and upon request, provide Robly with certification thereof. Without in any way limiting the foregoing, the Parties agree that following termination of this Agreement, Robly may continue to make the Products available directly to Customers, without any liability or obligation to Partner.

 

  1. Representations and Warranties; DISCLAIMER.

 

(a) General. The Parties each represent and warrant as of the Effective Date and for as long as this Agreement is in effect as follows: (i) if the Party is an entity, (A) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was organized, (B) it is duly qualified and in good standing as a foreign corporation in every state in which the character of its business requires such qualifications, and has the power to own its property and to carry on its business as now being conducted, and (C) the execution and delivery of this Agreement and compliance with all provisions of this Agreement are within the corporate power and authority of such Party; and (ii) the Agreement has been duly executed and constitutes a valid and binding agreement, enforceable in accordance with its terms. Partner further represents and warrants that the person clicking on the “I agree to Robly’s Terms and Conditions & Privacy Policy” button has the authority to enter into this Agreement on behalf of Partner and bind Partner to the terms and conditions hereof.

 

(b) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS PRODUCTS OR SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ROBLY MAKES NO WARRANTY THAT THE PRODUCTS WILL MEET USER REQUIREMENTS OR THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.

 

  1. Indemnification. Partner shall defend, indemnify and hold Robly harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by Robly as a result of any third-party claim against Robly resulting from or relating to Robly’s use of the Partner Marks, the content on Partner’s website, Partner’s products or services, Partner’s unauthorized marketing, promotion, use or distribution of the Products, Partner’s failure to abide by the applicable terms of any User Agreement, Partner’s breach of this Agreement, or the infringement or misappropriation of any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to Robly by Partner.

 

  1. Limitation of Liability. EXCEPT FOR PARTNER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (a) EACH PARTY’S LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, UNDER ANY LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY PARTNER TO ROBLY UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM AND (b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECULATIVE DAMAGES.

 

  1. Compliance with Laws; Privacy Policy. Partner agrees (a) to comply with all applicable federal, state, local, and foreign laws, statutes, rules, and regulations (“Laws”), including Laws regarding telemarketing, data privacy, email and facsimile marketing, customer solicitation, and all applicable guidelines of the Direct Marketing Association (“DMA”), (b) not to engage in any form of harassment or fraud, (c) to comply with any applicable third party agreements, and (d) not to send unsolicited commercial email (spam) using the Products or otherwise. Partner acknowledges and agrees that it is Partner’s sole responsibility to determine the applicability of, and ensure its own compliance with, any such Laws. Partner further agrees to have in place and comply with appropriate privacy policies and security features in accordance with its contractual obligations and applicable Laws.

 

  1. Keyword Noncompete. During the Term, and for a period of six (6) months thereafter (the “Noncompete Period”), Partner will not purchase, either directly or indirectly, or bid, either directly or indirectly, on any Keywords owned or offered through an Internet search engine (including Google, Yahoo, or MSN/Bing) that compete with Robly or any of its Products or services, including Robly’s name, Marks, product names, and associated terms. In addition, Partner will not, directly or indirectly, engage in any activities that could result in confusion among consumers as to the source of the ad (such as the overuse of an authorized trademark, trademark cyber-stuffing or other similar activities). For purposes of this Agreement, “Keywords” shall mean a word used in a search request by an Internet search engine user which, when used in such Internet search engine, a particular sponsor’s ad will appear near to the search results.

 

  1. Miscellaneous Provisions.

 

(a) Relationship of the Parties. The Parties are independent contractors and have no power or authority to assume or create any obligation or responsibility on behalf of the other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.

 

(b) Non-exclusive. Nothing contained in this Agreement shall be construed as creating an exclusive relationship between Partner and Robly.

 

(c) Expenses. Except as otherwise specified herein or as otherwise mutually agreed upon by the Parties, each Party will bear its own costs of performing under this Agreement (including with respect to any marketing activities).

 

(d) Taxes. Each Party shall be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state, or local governmental entity with respect to the net income recognized by such Party in connection with this Agreement.

 

(e) Overdue Payments; Offset. If Partner has an overdue balance owed to Robly, it will not be eligible to participate in any “incentive” or “reward” programs, including the Robly Solution Provider Bonus Program and any similar programs. Further, Partner authorizes and consents to Robly deducting from any Revenue Share or other payment it is entitled to hereunder, the amount of any funds that are due and owing to Robly or its affiliates. Robly further reserves the right to withhold payment, or offset amounts owed to Partner, if it reasonably determines that such amounts owed are as a result of any fraudulent or illegitimate behavior, including the fraudulent use of credit cards or other means of payment. Partner agrees to cooperate with Robly in its investigation of any of the foregoing.

 

(f) Governing Law and Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., except for its conflicts of law principles. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts in New York City, New York. ROBLY AND PARTNER IRREVOCABLY WAIVE ANY AND ALL RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.

 

(g) Public Announcements. All media releases, public announcements or public disclosures (including promotional or marketing material) by either Party relating to this Agreement are prohibited without the prior written consent of both Parties.

 

(h) Assignment; No Waiver. This Agreement binds and is for the benefit of the successors and permitted assigns of each Party. Partner may not assign this Agreement or any rights under it, in whole or in part, without Robly’s prior written consent. Any attempt to assign this Agreement other than as permitted above will be null and void. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

 

(i) Force Majeure. Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure.

 

(j) Control over Products. Partner acknowledges that (i) the Products and any related services may be subject to temporary shutdowns due to causes beyond Robly’s reasonable control; and (ii) subject to the terms of this Agreement, Robly retains sole right and control over the development, content and conduct of its products and services.

 

(k) Responsibility. Partner agrees to ensure that each of its employees, contractors, subcontractors, agents and team members comply with Partner’s obligations under this Agreement.

 

(l) Modification. Robly may update or amend this Agreement at anytime in its sole discretion by posting the new agreement on the Robly Site, and such new Agreement shall be effective immediately upon such posting.

 

(m) Entire Agreement. Except as set forth in the next sentence, this Agreement (including the Exhibits hereto and other documents referenced herein) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior oral, written or online agreements. If Partner has previously entered into a “Business Partner Services Agreement” (or any similar agreement) with Robly, then the Parties hereby agree that such prior agreement shall be terminated and shall be superseded by the terms and conditions set forth herein. Each Party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. Except as expressly set forth herein, this Agreement does not govern any use by Partner of the Products and any use by Partner of the Products shall be governed by the User Agreements and any other agreement Partner agrees to in connection with its use of such Products.

 

(n) Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

 

(o) Notices. Partner agrees that Robly may provide notice to Partner by emailing such notice to the email address listed by Partner during Partner’s registration or mailing it to the street address designated by Partner during Partner’s registration. Such notice shall be considered to be received by Partner within 24 hours of the time it is emailed to Partner unless Robly receives notice that the email was not delivered. If the notice is sent by mail, Robly will consider it to have been received by Partner three (3) business days after such notice has been sent. Any notice to Robly must be sent by email to dan.rovner@robly.com.

 

(p) Survival. The Sections of this Agreement relating to Confidential Information and Non-Disclosure and Data Privacy, Indemnification, Limitation of Liability, Disclaimer, Keyword Noncompete and this Section (Miscellaneous) shall survive any termination or expiration of this Agreement.

 

EXHIBIT A

 

FEATURES OF PARTNER MARKETING ACCOUNT

 

Robly will provide Partner with one Partner Marketing Account, which will be either an Individual Product Account or an Email Plus Account, as more fully described below. Robly will have sole discretion as to which type of Partner Marketing Account that Partner will receive.

 

(a) Individual Product Account: An “Individual Product Account” will include the following free features and limitations:

 

Email Marketing Product: Use of Robly’s Professional level plan, including all the features that go along with it.

 

(b) Ultimate Account: An “Ultimate  Account” will include all the features that are a part of Robly’s Ultimate level plan.

 

If, at any time six (6) months following the Effective Date, Partner has less than five (5) paying Customers, Robly may, in its sole discretion, require Partner to pay for its use of the Partner Marketing Account.

 

Upon termination of the Agreement, any fee waivers granted to Partner in connection with the Partner Marketing Account shall cease.

 

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