IMPACT Partner Terms

Current version published: Feb 22nd, 2019

By signing up to be an IMPACT Partner, you are agreeing to be bound by the following Partner Agreement (the “Agreement”). The Agreement is between you, as Partner, and IMPACT Branding and Design LLC (“IMPACT”) (together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at impactbnd.com/partners/terms. IMPACT reserves the right to update and change the Agreement by posting updates and changes here: impactbnd.com/partners/terms. If a significant change is made, we will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement addresses different types of Partner activities.

You must read, agree with and accept all of the terms and conditions contained in this Agreement and IMPACT’s Privacy Statement before you may become a Partner and, for the avoidance of doubt IMPACT’s Privacy Statement form part of this Agreement and are incorporated by reference. Some types of IMPACT Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Everyday language summaries are provided for convenience only and are not legally binding. Please read the entire Agreement for the complete picture of your legal requirements. This Agreement governs your activities as a Partner, including access to the Partner Dashboard and participation in the activities described on the Partner Program website. Be sure to occasionally check back for updates.

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Agency Services Statement” means a separate writing by and between IMPACT and a Partner setting forth the services of IMPACT that Partner may offer to its Customers, the Fees Partner is entitled to in the event IMPACT provides services to a Customer and all other related matters. Each Agency Services Statement is subject to the terms and conditions of this Agreement. In the event of a conflict between an Agency Services Statement and this Agreement, the Agency Services Statement shall control. For the avoidance of doubt, if there are terms and conditions in this Agreement regarding subjects on which an Agency Services Statement is silent, such silence will not constitute a conflict and the terms and conditions of this Agreement shall control.

“Customer” means a customer of the Partner.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

“Client” means an individual or business whom has previously purchased from IMPACT, that uses a Service of the Partner.

“Customer Agreement” means the agreement entered into between a Partner and the Client governing the Client’s use of the Partner’s services, including, if applicable, the installation and use of Partner materials.

“Client Data” means information (including personal information) relating to a Client or Customer, including but not limited to business, financial and product information and any Client or Customer Data.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the IMPACT Partner Program. The different types of Partners are listed below:

1. A “Strategic Partner” is a Partner who has entered into a partnership agreement with IMPACT, and has services aligned with IMPACT’s offerings. This could include:
   1. Pass-through services, where IMPACT refers clients to the Partner for fulfillment, with IMPACT receiving a mutually agreed upon percent commission.
   2. Or, a Partner that passes leads to IMPACT, for IMPACT to service, and the Partner receives a percent commission (to be noted in the Partnership Agreement).
2. An “Exclusive Partner” is a Partner who has entered into a Partnership agreement with IMPACT where IMPACT exclusively promotes and utilizes the Partner’s service/software/etc, in exchange for deep discounted, or free access to the Partner’s offering. This could include:
   1. Recommendations / mentions during IMPACT speaking engagements, blog posts, webinars, podcasts, etc.
   2. Speaking time at IMPACT managed events.
   3. Special access to the IMPACT audience

“Partner Account” means a IMPACT Partner Program account.

“Partner Manager” means the IMPACT employee designated by IMPACT from time to time as the Partner’s primary IMPACT contact.

“Payment Period” has the meaning as set out in Section 3.2.

“Partner Program” means IMPACT’s program for Partners that provides exclusive access to resources and, as applicable, the opportunity to earn revenue.

“Service” means the IMPACT Agency Services and any associated services as set forth in an Agency Services Statement.

“IMPACT creative” means any marketing and/or promotional materials relating to IMPACT and/or IMPACT brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the IMPACT Trademarks.

“IMPACT Trademarks” means the trademarks, logos, service marks and trade names of IMPACT Branding and Design LLC., whether registered or unregistered, including but not limited to the word mark IMPACT and the IM Logo.

“Websites” means any websites that are managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

WHICH MEANS

This section assigns a specific meaning to some of the capitalized terms used in this agreement. Other capitalized terms are defined elsewhere in the Agreement.

2. Partner Responsibilities

2.1. Marketing Activities

1. Partner shall bear all costs and expenses related to Partner’s marketing or promotion of IMPACT, and, as applicable, Partner’s other products or services associated with Partner’s participation in the Partner Program (Collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by IMPACT in its sole discretion.
2. In no event shall Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to IMPACT to send emails regarding the offering of IMPACT and IMPACT Related Entities to the individuals on the Opt-in List (and IMPACT may, in its sole discretion, allow Partner to send such emails). In conducting all Partner Marketing Activities, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to the CAN-SPAM Act (15 U.S. Code Chapter 103), including all corresponding regulations issued by the Federal Trade Commission and Federal Communications Commission, and shall be the designated sender of all such emails. .
3. A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to IMPACT; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to IMPACT; (iii) make any false, misleading or disparaging representations or statements with respect to IMPACT; (iv) copy, resemble or mirror the look and feel of IMPACT’s websites, IMPACT Trademarks or Services or otherwise misrepresent Partner’s affiliation with IMPACT; or (v) engage in any other practices which may adversely affect the credibility or reputation of IMPACT, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to IMPACT or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party
4. Partner shall refer both warm and cold leads to IMPACT in a timely manner. A cold lead is identification of a relationship opportunity with a third party by Partner that Partner is not in a position to fill, but IMPACT is. A warm lead is an opportunity for IMPACT to open a relationship with a third party that Partner has already developed a relationship with. Such referrals shall contain the necessary information, including name and contact information, for IMPACT to open a discussion with such third party.

WHICH MEANS

Partners cannot send email marketing materials about IMPACT without IMPACT’s permission. If IMPACT gives its permission, the messages must comply with this section and all applicable laws. Partner cannot engage in any illegal or aggressive marketing techniques on behalf of IMPACT. Partner must not make any false or misleading statements about IMPACT or represent anything that could cause harm to the credibility of IMPACT. In all of Partner’s marketing activities, Partner must comply will all applicable laws. Partner shall refer all warm and cold leads to IMPACT in a timely fashion.

2.2. 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.

WHICH MEANS

Partner will comply with all applicable laws and highest industry standards.

2.3. Partner Duty to Inform

Partner shall promptly inform IMPACT of any information known to Partner that could reasonably lead to a claim, demand or liability of or against IMPACT by any third party.

WHICH MEANS

Partner has to keep IMPACT informed about any potential claims, demands or liabilities relating to IMPACT of which the Partner is aware.

2.4. Partner Duty to Disclose

If Partner is acting as an agent on behalf of a Client, then Partner shall disclose to the Client any Fees that Partner is entitled to receive from IMPACT in accordance with this Agreement that are associated with such Client.

Partners must disclose any current and future relationships with any IMPACT competitors. Partners should email partners@impactbnd.com with the competitor name in the subject line.

WHICH MEANS

If Partner is acting as Client’s agent, then Partner must disclose any Fees that Partner will earn under the Partner Program that relate to the Client. Partner must let IMPACT know of any current or future relationships with companies that directly compete with IMPACT’s offerings.

2.5. Other Partner Terms

1. If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.
2. To become a Partner, Partner must have signed the IMPACT Partner Agreement. IMPACT may reject a request for a Partner Account for any reason, in its sole discretion. Partner acknowledges that IMPACT will use the email address provided by Partner as the primary method for communication. IMPACT cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of their accounts.
3. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.
4. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
5. Partner acknowledges and agrees that IMPACT may amend this Agreement at any time. If a significant change is made, IMPACT will provide reasonable notice by email, posting a notice on the IMPACT Partner page. Partner’s continued participation in the IMPACT Partner Program after the amended Partner Agreement is posted to IMPACT’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the IMPACT Partner Program.
6. Partner acknowledges and agrees that Partner’s participation in the IMPACT Partner Program, including information transmitted to or stored by IMPACT, is governed by the IMPACT Privacy Statement found at impactbnd.com/privacy-policy.
7. Other than the limited license to use the IMPACT Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the IMPACT Trademarks  and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).
8. Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the IMPACT Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the IMPACT Trademarks.

WHICH MEANS

Partner must (i) be at least 18 years old or the age of majority where Partner resides; (ii) provide certain information and agree that email will be our primary method of communication; (iii) this agreement stands for all Partner employees; (iv) agree that this Agreement may be changed by IMPACT at any time; (v) acknowledge and agree to IMPACT’s privacy policy; and (vi) not use IMPACT’s trademarks as part of its name or brand unless permitted under this Agreement; and (vii) not buy search engine advertising, trademarks or domain names that mention or use “IMPACT” or other IMPACT logos.

3. Fees and Payments

3.1. Payment

1. IMPACT strives to distribute Fees owing to its Partners as fast as possible. To ensure a seamless Client experience, IMPACT will bill Clients directly for Partner services. IMPACT will submit payment to Partner, once Payment has been received from Client.

3.2. Payment Options

1. IMPACT accepts payment via ACH, Electronic Payment, or Check.

3.3 Requirements for Payment; Forfeiture.

1. In order to receive payment under this Agreement, you must have: (a) agreed to the terms of this Agreement (generally completed through the partner tools tab in your portal); (b) agreed to the terms of an applicable Agency Services Statement; (c) submitted to us the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Partners, or Form W-8BEN or W-8BEN-E(instructions here) for non-U.S. based Partners); and (d) returned the forms required by (b) and (c) above by email to partners@impactbnd.com.
2. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 9.1 remain outstanding for six (6) months immediately following the close of a Partner agreement, then payment based on services may be delayed, or forfeited.

WHICH MEANS

Clients will pay IMPACT directly and, unless otherwise stated, upon receipt IMPACT will pay the Partner as soon as possible. In order to be paid by IMPACT, Partner must have accepted this agreement, and provided the necessary tax documents to IMPACT.

3.3. Additional Payment Information

1. All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.
2. Notwithstanding anything to the contrary in this Agreement, IMPACT shall not be responsible to pay any Fees:
   1. related to revenues that have been refunded to Clients by IMPACT;
   2. related to fraudulent sales;
   3. related to revenues that have been subject to chargebacks;
   4. to Partners who are employed by IMPACT (whether full-time, part-time, term or any other employment-type relationship); or
   5. to Partners who are employed by the Client to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).
3. If any Fees paid by IMPACT are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.2, or to have been paid in error, IMPACT shall have the right, at its sole discretion, to: (A) reclaim any Fees paid to Partner in error; or (B) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to IMPACT, Partner shall pay to IMPACT the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
4. IMPACT reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on the IMPACT Partner page. In the event of any disputes over Fees, IMPACT’s determination will be final and binding.

WHICH MEANS

IMPACT has the right to set off or withhold payments to Partners in certain circumstances. IMPACT has the right to alter the Fees, the Fee structure or the payment terms with reasonable notice to Partner.

4. Termination

4.1. Termination

1. Unless otherwise specified in the Agreement, either Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to the other Party.
2. Fraudulent or other unacceptable behavior by Partner, as determined by IMPACT in its sole discretion, may result in one or more of the following actions being taken by IMPACT: (a) termination of Partner’s affiliation with Clients; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Agreement entirely without notice to, or recourse for, Partner.
3. IMPACT reserves the right to cancel or modify the Partner Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Agreement, including any material change to Fees, IMPACT will provide reasonable notice by email, posting a notice on the IMPACT Partner page.

WHICH MEANS

Either IMPACT or Partner can end this agreement at any time by providing notice to the other. If there is fraud or any other unacceptable behavior by Partner, IMPACT can suspend Partner’s privileges or end the agreement without notice. IMPACT can change or eliminate all or any portion of the Partner Program at any time, upon reasonable notice.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all IMPACT creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any IMPACT creative and/or any IMPACT Trademarks on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to contact IMPACT Client’s, or to receive any payments of Fees hereunder except those Fees that have already been earned and are outstanding, unless otherwise determined by IMPACT in its sole discretion.

WHICH MEANS

If the agreement ends, Partner must stop using and return to IMPACT all IMPACT creative material and IMPACT’s trademarks and logos (or destroy them) and Partner will no longer be permitted to contact IMPACT Client’s or receive Fees from IMPACT, unless otherwise determined by IMPACT in its sole discretion.

5. Intellectual Property Rights

5.1. IMPACT creative

1. All IMPACT creative will be solely created and provided by IMPACT unless otherwise agreed to by IMPACT in writing in advance. IMPACT will provide Partner with copies of or access to IMPACT creative. The IMPACT creative may also be accessible from the Partner page and the IMPACT brand guidelines as implemented from time to time (“IMPACT Trademark Usage Guidelines”). By using the IMPACT creative, you indicate your acceptance of our IMPACT Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the IMPACT creative. The IMPACT creative is provided “as is” and without warranty of any kind.
2. Partner may display IMPACT creative on the Websites solely for the purpose of marketing and promoting the Service and any IMPACT brands permitted by IMPACT during the term of this Agreement, or until such time as IMPACT may, upon reasonable prior notice, instruct Partner to cease displaying the IMPACT creative. Partner may not alter, amend, adapt or translate the IMPACT creative without IMPACT’s prior written consent. Nothing contained in any IMPACT creative shall in any way be deemed a representation or warranty of IMPACT. The IMPACT creative shall at all times be the sole and exclusive property of IMPACT and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by IMPACT to make changes or modifications to the IMPACT creative.

WHICH MEANS

Partners may promote IMPACT using the creative materials provided by IMPACT. The creative materials of IMPACT belong to IMPACT, cannot be changed and must be used only to promote the IMPACT Services and the IMPACT brand.

5.2. IMPACT Trademarks

During the term of this Agreement, IMPACT hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the IMPACT Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use IMPACT’s Trademarks only as permitted hereunder; (b) it will use the IMPACT Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by IMPACT in writing from time to time, including but not limited to the IMPACT Trademark Usage Guidelines; (c) the IMPACT Trademarks are and shall remain the sole property of IMPACT; (d) nothing in this Agreement shall confer in Partner any right of ownership in the IMPACT Trademarks and all use thereof by Partner shall inure to the benefit of IMPACT; and (e) Partner shall not, now or in the future, apply for or contest the validity of any IMPACT Trademarks; and (f) Partner shall not, now or in the future, apply for or use any term or mark confusingly similar to any IMPACT Trademarks.

WHICH MEANS

IMPACT owns the IMPACT Trademarks entirely and Partner agrees to use them only in accordance with the Agreement.

5.3. Restrictions on Partner’s Use of the IMPACT Trademarks

Notwithstanding Section 5.2, Partners shall not use any IMPACT Trademark including but not limited to the “IM logo” or the word mark IMPACT or variations of the word “IMPACT” in Partner’s business name, logo, products or services, including without limitation, the name or design of any Application or Theme, unless granted express written permission by IMPACT in advance of such use.

WHICH MEANS

Partners cannot use the word “IMPACT”, or the IMPACT logo, or other IMPACT trademarks in the name or design of the Partner’s business or logo, or any Partner product or service without permission.

5.4. Proprietary Rights of IMPACT

As between Partner and IMPACT, the IMPACT creative, IMPACT Trademarks, all demographic and other information relating to Clients including prospective Partners and Partners, the Services, Client Data, 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 IMPACT or otherwise related to the Service or IMPACT Partner Program, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “IMPACT Property”) shall be and remain the sole and exclusive property of IMPACT. To the extent, if any, that ownership of any IMPACT Property does not automatically vest in IMPACT by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to IMPACT, upon the creation thereof, all rights, title and interest Partner may have in and to such IMPACT Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

WHICH MEANS

All of the information, property and intellectual property you have access to as a result of your participation in the Partner Program belongs entirely to IMPACT.

6. Confidentiality

1. “Confidential Information” shall include, but shall not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, 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. For the avoidance of doubt, as between IMPACT and Partner, Client Data and Customer Data is the Confidential Information of IMPACT.
2. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 6. 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 (i) by or to its employees, agents and subcontractors, including independent contractors, 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, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained herein; or (ii) 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, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

WHICH MEANS

Both IMPACT and Partner agree to use Confidential Information only to perform the obligations of the Agreement. Confidential Information must be protected and respected. Client Data and Customer Data is considered Confidential Information.

7. Disclaimer of warranty

The IMPACT Partner Program, the Service, the IMPACT Trademarks and the IMPACT creative, are provided “as-is”. IMPACT makes no warranties hereunder, and IMPACT expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, IMPACT further disclaims all representations and warranties, express or implied, that the Service, the IMPACT Trademarks, or the IMPACT creative, satisfy all of Partner’s or Client’s requirements and or will be uninterrupted, error-free or free from harmful components.

WHICH MEANS

IMPACT makes no warranties about the IMPACT Partner Program, the Service, the IMPACT Trademarks or the IMPACT creative.

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

IMPACT’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by IMPACT 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, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Client and a Partner is strictly between the Client and the Partner, and IMPACT is not obligated to intervene in any dispute arising between the Client and the Partner. Under no circumstances shall IMPACT be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Client. These limitations shall apply even if IMPACT has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

WHICH MEANS

IMPACT is limiting its liability with regard to the IMPACT Partner Program, the Service, the IMPACT Trademarks, the IMPACT creative, the relationship between the Partner and any Client, and IMPACT’s obligations under the Agreement. If there is a liability owed to the Partner by IMPACT, IMPACT will provide no more than the Fees that were paid to Partner in the past six months.

8.2. Indemnification

Each Party agrees to indemnify, defend and hold harmless the other Party, and such Party’s directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “Claims”), to the extent that such Claim is based upon or arises out of: (a) a Party’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) a Party’s gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to a Party granted by the other Party to any Client, prospective Partner or other third party; (d) a Party’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Customer Agreement; (e) any third party claim that a Party’s products or services, including without limitation any action that infringes the intellectual property or other rights of a third party; and (f) a Party’s relationship with any Client.

WHICH MEANS

Each Party will cover all costs associated with a claim made against, or liabilities incurred by, the other Party if it is caused by a Party’s breach of this Agreement, a Party’s gross negligence or willful misconduct, promises made by a Party to third parties about the other Party, Partner’s products or services, a Party’s infringement or violation of the intellectual property or other rights of a third party, or a Party’s relationship with a Client.

8.3. Notice of Indemnification

In claiming any indemnification hereunder, the Indemnified Party shall promptly provide the other Party with written notice of any Claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the other Party shall control such defense and all negotiations relative to the settlement of any such Claim and further provided that in settling any Claim the Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

WHICH MEANS

Each Party will notify the other Party of any claims and may choose to assist in the defense.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to IMPACT under this Agreement and under applicable law, IMPACT shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by IMPACT in connection with such violation, in accordance with the provisions of this Section 8.

WHICH MEANS

Which means: If Partner breaches its obligations with respect to Partner’s responsibilities (Section 2), IMPACT’s intellectual property or other proprietary rights (Section 5) or confidentiality (Section 6), IMPACT has rights outside of “breach of contract”.

9. General provisions

9.1. 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 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.

WHICH MEANS

In case something serious happens outside the control of either IMPACT or Partner, both will be excused from performance of duties to the extent that such event affects either Party’s ability to perform such duties.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

WHICH MEANS

Both IMPACT and Partner are independent contractors and there is no relationship of agents, representatives or otherwise between them.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement, unless explicitly stated in an Exclusive Partnership agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

WHICH MEANS

Both IMPACT and Partner are non-exclusive to each other and each can enter into similar arrangements with others, unless explicitly stated in an Exclusive Partnership, as long as that party does not use the other party’s confidential information.

9.4. 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 email to Partner’s email address listed in the Partner Account, and to legal@impactbnd.com; (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, to the address provided in the Partner Account, and for IMPACT to 8 Fairfield Boulevard, Suite 107, Wallingford, CT 06492, Attention: Legal Department.

WHICH MEANS

Notice is considered to be sent on the day it is emailed or hand delivered, 2 days after it is given to a courier, or 5 days after it is placed in the mail.

9.5. 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.

WHICH MEANS

If a provision is not enforced by either party, it does not mean that they are waiving their rights to enforce that provision in the future.

9.6. Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced herein, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other 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.

WHICH MEANS

This Agreement and the documents it links to and references are the entire agreement governing the relationship between IMPACT and Partner under the Partner Program, and it replaces any previous agreements.

9.7. 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, permitted assigns and legal representatives. IMPACT shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without IMPACT’s prior written consent, to be given or withheld in IMPACT’s sole discretion.

WHICH MEANS

Partner cannot assign away or transfer this agreement to another party without IMPACT’s consent.

9.8. Applicable Laws

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Connecticut and the laws of the United States of America applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Connecticut with respect to any dispute or claim arising out of or in connection with this Agreement.

WHICH MEANS

This agreement is covered by the laws of Connecticut, USA. If anything were to go wrong, Connecticut is where the issue would be litigated.

9.10. Patent Non-Assertion

Partner and its affiliates covenant not to assert patent infringement claims against IMPACT, IMPACT Related Entities, or IMPACT products and services.

9.11. Acceptance

By signing the provided Agreement, the Partner hereby fully agrees with all terms and provisions of this Agreement, including all documents linked to herein.

WHICH MEANS

Signing this agreement constitutes full acceptance of this Agreement.

9.12. Competitive or Similar Materials

IMPACT is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, including without limitation any Application or Theme, regardless of their similarity to Partner’s products or services, provided that IMPACT does not use Partner’s Confidential Information in so doing.

WHICH MEANS

Which means: IMPACT may develop products or services that compete with Partner’s products or services so long as IMPACT does not use Partner’s Confidential Information.

9.13. Feedback

If Partner provides any feedback (including identifying potential errors and improvements) to IMPACT concerning the Partner Program, the IMPACT creative or any aspects of the Service (“Feedback”), Partner hereby assigns to IMPACT all right, title, and interest in and to the Feedback, and IMPACT is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, the IMPACT creative and/or the Service and to create other products and services. IMPACT will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.

WHICH MEANS

If you provide IMPACT with Feedback about the Partner Program, IMPACT creative or the Service, we will own this Feedback and we can use it without restriction.

9.14. Beta Services

From time to time, IMPACT may, in its sole discretion, invite Partner to use, on a trial basis, potential new services or features that are in development and not yet available to all Partners or Clients (“Beta Services”). Beta Services may be subject to additional terms and conditions, which IMPACT will provide to Partner prior to Partner’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of IMPACT and subject to the confidentiality provisions of this Agreement. IMPACT makes no representations or warranties that the Beta Services will function. IMPACT may discontinue the Beta Services at any time in its sole discretion. IMPACT will have no liability for any harm or damage arising out of or in connection with a Beta Service.

9.15. Service Providers

Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.

WHICH MEANS

Partner can work with third parties, but is responsible for any breach of this Agreement by those third parties.

9.16. Industry Standards

1. Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Partner System”) must be properly configured to Internet industry standards so as to securely operate Partner’s Website, product or software, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency, and disconnect immediately any known or suspected intrusions or intruder.
2. In addition, if Partner has access to Client Data, Partner: (i) shall only use or store such information for the purpose of providing the Partner’s services to the Client to whom the Client Data relates, and shall not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) shall not communicate with Customers directly or indirectly, provided however that Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) shall only store such information for as long as reasonably necessary to provide the Partner’s services to the Client to whom the Client Data relates; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) shall notify IMPACT of any actual or suspected breach or compromise of Client Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (A) promptly remedy the Data Breach to prevent any further loss of Client Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to IMPACT, Clients or Customers; and (D) regularly communicate the progress of its investigation to IMPACT and cooperate to provide IMPACT with any additional requested information in a timely manner.

WHICH MEANS

If Partner has access to Client Data, Partner will only use it to provide services to the Client, will not communicate with Client’s customers unless explicitly allowed, only keep Client Data for as long as necessary to provide its services to the Client, use industry standard security measures to protect against security breaches and comply with all laws. If Partner suspects any breach of Client Data, Partner will notify IMPACT immediately.