Partner

Last Updated - 2/9/2017

Awair Partner Program Agreement Terms and Conditions

I. Partner Responsibilities

A. Marketing Activities

1. Partner shall bear all costs and expenses related to Partner's marketing or promotion of Awair.
2. In no event shall Partner engage in any email marketing or promotion with respect to Awair except as expressly set forth in the Partner Program Agreement, together with these Terms and Conditions (the “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 Awair to send emails regarding the offering of Awair to the individuals on the Opt-in List. In the event Awair approves such request, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
3. Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Awair to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Awair or its products; and (iii) not imply that such emails are being sent on behalf of Awair.
4. A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Awair; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Awair; (iii) make any false, misleading or disparaging representations or statements with respect to Awair; (iv) copy, resemble or mirror the look and feel of Awair’s websites, Awair trademarks or products or otherwise misrepresent Partner’s affiliation with Awair; or (v) engage in any other practices which may adversely affect the credibility or reputation of Awair, 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 Awair or the Partner’s products, (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.

In addition to, and without limiting the provisions of the 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.

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

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 create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Awair may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Awair will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Awair cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
3. If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of the Agreement, and you represent and warrant that you have the authority to bind your employer to the Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with the 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. Other than the limited license to use the Awair trademarks pursuant to the Agreement, Partner shall not use the Awair 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).

II. Fees and Payments

A. Revenue Sharing Plans

Subject to: (i) Partner’s compliance with the Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Awair (the “Fees”).

1. Fees due to Partner will be reported and paid by Awair once per month and only following receipt of payment from the customer.
2. Awair distributes Fees owing to its Partners once per calendar month (a “Payment Period”). Where the Fees owing to Partner are greater than USD $25 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than USD $25 at the end of any Payment Period, Awair shall be entitled to withhold payment of Fees until the end of the next Payment Period in which the balance of unpaid Fees owing to Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period are USD $25 or more.

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 the Agreement, Awair shall not be responsible to pay any Fees:
   1. related to revenues that have been refunded to customer by Awair;

1. for a customer created or owned in whole or in part by a Partner;
2. related to fraudulent sales;
3. related to revenues that have been subject to chargebacks; or
4. to Partners who are employed by or who are contractors of Awair.

3. If any Fees paid by Awair are subsequently discovered to be subject to one or more of the exclusions set out in Section II.C.2, or to have been paid in error, Awair 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 II.C.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Awair, Partner shall pay to Awair the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
4. Awair 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 or posting a notice on the Awair blog. In the event of any disputes over Fees, Awair’s determination will be final and binding absent mathematical error.

III. Termination

1. Awair may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner. Partner may terminate the Agreement at any time, with or without cause, effective immediately upon notice to Awair.
2. Awair reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Awair will provide reasonable notice by email or posting a notice on the Awair blog.

Upon termination of the 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 Awair documentation and marketing materials and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Awair information and/or any Awair 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 receive any payments of Fees hereunder, unless otherwise determined by Awair in its sole discretion.

IV. Intellectual Property Rights

A. Awair Creative

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

 B. Awair Trademarks

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

C. Restrictions on Partner’s Use of the Awair Trademarks

Notwithstanding Section IV.B., Partners shall not use any Awair Trademark including but not limited to the word mark AWAIR or variations of the word “Awair” in Partner’s business name, logo, products or services unless granted express written permission by Awair in advance of such use.

D. Proprietary Rights of Awair

As between Partner and Awair, the Awair Creative, Awair Trademarks, all demographic and other information relating to customers, the Awair products, 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 Awair or otherwise related to the product, Awair Partner Program, Awair, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Awair Property”) shall be and remain the sole and exclusive property of Awair. To the extent, if any, that ownership of any Awair Property does not automatically vest in Awair by virtue of the Agreement, or otherwise, Partner hereby transfers and assigns to Awair, upon the creation thereof, all rights, title and interest Partner may have in and to such Awair Property, including the right to sue and recover for past, present and future violations thereof.  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 Awair.

V. 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, customer data, product designs, sales, costs, 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.
2. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under the Agreement. 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 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 the 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 the Agreement; or (c) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of the Agreement.

The Awair Trademarks, the Awair Creative are provided “as-is”. Awair makes no warranties hereunder, and Awair 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, Awair further disclaims all representations and warranties, express or implied, that the Awair Trademarks or the Awair Creative do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction. Partner understands and agrees that the Awair Trademarks, the Awair Creative, and the Awair product may not satisfy all of Partner’s or customer’s requirements and may not be uninterrupted, error-free or free from harmful components and while Awair provides a limited warrant to customers, that warranty does not extend to Partner.

VII. Limitation of Liability and Indemnification

A. Limitation of Liability

Neither party shall have any liability for indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses even if the party has been advised of the possibility of such damages. In any event, either Party’s liability to the other Party under the Agreement for any reason will be limited to the Fees paid to Partner by Awair during the one (1) year 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, other than with respect to confidentiality and misappropriation of intellectual property. The relationship between a customer and a Partner is strictly between the customer and the Partner, and Awair is not obligated to intervene in any dispute arising between the customer and the Partner. Under no circumstances shall Awair be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from the Partner’s relationship with any customer. These limitations shall apply even if Awair has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

B. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Awair and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under the Agreement; (b) Partner’s gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Awair Entities granted by Partner to any customer or other third party; (d) Partner’s breach of any term of the Agreement; (e) Partner’s relationship with any customer.

C. Notice of Indemnification

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

D. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections I, IV and/or V above, in addition to all other rights and remedies available to Awair under the Agreement and under applicable law, Awair 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 the 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 Awair in connection with such violation, in accordance with the provisions of this Section VII.

VIII. General provisions

A. Force Majeure

If the performance of any part of the 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 the 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.

B. Independent Contractors

The Parties to the 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. The 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.

C. Non-Exclusivity

Nothing in the Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to the Agreement. The Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under the Agreement by doing so.

D. Notice

Any notice, approval, request, authorization, direction or other communication under the 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 partnerships@getawair.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 Awair to partnerships@getawair.com.

E. No Waiver

The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the 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.

F. Entire Agreement

The Agreement, including any completed application form and all guidelines and other documents linked or otherwise reference 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 the 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 the Agreement (whether or not it would materially alter the 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.

G. Assignment

All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the Parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Neither Party shall have the right to assign or otherwise transfer the Agreement, or any of its rights or obligations hereunder, to any third party without the other Party’s prior written consent.

H. Applicable Laws

The Agreement shall be governed by and interpreted in accordance with the laws of the State of California USA applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of San Francisco, California with respect to any dispute or claim arising out of or in connection with the Agreement.