Terms and Conditions for the Switcher Referral Partner Program
Last updated October 1, 2022
This REFERRAL PARTNERSHIP AGREEMENT (the “Agreement”) is a binding agreement between Switcher Inc. and you, the business entering into this Agreement, (“Representative”). This Agreement governs your participation in the Switcher Inc. Referral Partner Program.
“Client” means a third party referred by Representative to Switcher via a valid Referral (as defined in Section 2.2) and accepted by Switcher, who enters into a Client Agreement with Switcher.
“Client Agreement” means the contract by which Switcher agrees to supply a Client with Services, the terms and conditions of which are available here.
“Prospect” means a Representative customer or other contact who may be interested in using the Services.
“Services” means Switcher’s products and services that are generally commercially available and described on Switcher’s website at switcherstudio.com.
“Territory” means worldwide.
2. Referrals and Obligations
Referrer Relationship. Subject to the terms and conditions of this Agreement, Switcher hereby authorizes Representative to promote the Services in the Territory on a non-exclusive basis to refer Prospects to Switcher including without limitation engaging in the following activities: (a) promoting the Services in appropriate sales opportunities (including when presenting Representative’s products and services to Prospects); (b) promoting the Services to Representative’s existing and new customer and contact base; (c) facilitating face-to-face meetings between Switcher and Prospects (subject to Switcher’s prior approval); (d) arranging for appropriate Representative personnel to participate in introductory meetings (approved by Switcher) between Switcher and the Prospect; (e) assisting Prospect in installing and maintaining the Switcher Studio Solution as applicable; and (f) otherwise supporting Prospect’s use of the Services.
Referral Mechanism. In order for a Representative to be eligible to receive an Incentive for a Prospect, for each such Prospect, Representative must provide to Switcher the contact information and company name of any Prospect via a mutually agreed upon mechanism (each, a “Referral”). All Referrals shall be subject to acceptance by Switcher, in its sole discretion, and Switcher shall have no obligation to the Representative with respect to a specific Prospect if Switcher determines, in its sole discretion, that such Prospect would not be a suitable Client for Switcher. All decisions regarding a Prospect by Switcher are final. Each Referral that is accepted by Switcher in accordance with this Section 2.2 is referred to herein as a “Qualifying Referral”.
Switcher Materials. Switcher will provide Representative, at no cost to Representative, with materials for use in conjunction with promoting the Services hereunder (“Switcher Materials”), which may be used by Representative to demonstrate the functionality of the Services, describe the technical specifications of the Services, and otherwise promote the Services. All use of the Switcher Materials is subject to Representative’s obligations and restrictions as set forth in this Agreement. As between the parties, Switcher owns all right, title, and interest in and to the Switcher Materials and any such use by Representative thereof and any related goodwill arising therefrom shall be solely for the benefit of Switcher
Independent Contractors. The parties are independent contractors and not partners, joint venturers, or otherwise affiliated and neither has any right or authority to bind the other in any way. Accordingly, the Representative shall not commit Switcher to any Client Agreement or other contract or obligation.
Use of Name and Marks. Each party shall have the right to use the other party’s name, trademarks, service marks, and logos (“Mark(s)”), only to the extent necessary to perform its obligations under this Agreement and only in accordance with the usage guidelines provided to it in writing by the Mark holder. Each party shall only use the other party’s then-current Marks and shall not use the other party’s Marks for any purpose other than as expressly set forth in this Agreement. Each party’s materials (e.g., promotions) that incorporate the other party’s Marks, or otherwise reference the other party, must be pre-approved by Mark holder in writing (email to suffice). Representative will use Switcher’s then-current names for any of the Services and will not add to, supplement, delete from, or modify any Switcher Materials or Switcher Marks except with the prior written consent of Switcher. Representative will not otherwise use or register (or make any filing with respect to), or contest, any trademark, name, or other designation relevant to the subject matter of this Agreement anywhere in the world.
Non-Exclusive Relationship. Nothing in this Agreement shall restrict Switcher from, in its sole discretion, at any time and without liability to Representative, (i) appointing other independent representatives to promote, market, sell, resell or distribute the Services anywhere in the world, and (ii) directly promote, market, sell or distribute the Services anywhere in the world.
Restrictions on Representative Activity. Representative shall not make any representation, guarantee, or warranty concerning the Services, Switcher Materials, or terms and conditions of any Client Agreement, except as expressly authorized in writing by Switcher. Additionally, Representative shall not and shall not permit any employee, agent, or third party to: (a) engage in any action or practice that reflects poorly on Switcher, or otherwise disparages or devalues Switcher’s or its customers’ reputation or goodwill; (b) bid on Switcher-branded advertising keywords or any keywords that include Switcher’s Marks; (c) reverse engineer, recompile, or reverse assemble the Services or any software used to provide the Services; or (d) reference Switcher coupons (and any related terms such as coupon code or discount code) in page titles, domain names, and meta tags without the express written permission of Switcher.
Restrictions on Representative Materials. Representative’s websites and other materials used in connection with this Agreement shall not contain any objectionable content, including without limitation the following: (a) defamatory, violent, hateful, inflammatory, obscene, or sexually explicit content; (b) content that infringes or misappropriates the intellectual property, privacy, or publicity rights of any third party; (c) deceptive, misleading, or fraudulent advertising or other content; (d) content that promotes the use or sale of illegal substances, or provision of illegal services; (e) spam, payola, or other content that violates applicable consumer protection laws, regulations, or industry standards or best practices; or (f) any other unlawful content, including offers that fail to provide a user with promised products or discounts, or that otherwise mislead or surprise users.
Incentives. For each referral, Switcher shall pay the Referrer a payout based on the upgraded subscription of each Client that the partner refers. For the specific payouts, reference your partner portal account with Switcher here.
Refunds. If Switcher is required for any reason to refund to a Qualified Referral any portion of a payment with respect to which Switcher has paid an Incentive within twelve (12) months after payment by Switcher of such Incentive to Representative, Representative shall refund to Switcher the corresponding portion of such Incentive. Representative shall have no obligation to make such a refund more than twelve (12) months after payment by Switcher of such Incentive.
Taxes. Each party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments, and other governmental impositions resulting from its own activities under this Agreement.
Expenses. Except as otherwise stated in this Agreement or later mutually agreed to in writing by both parties, each party will be responsible for the expenses that it incurs in connection with the performance of this Agreement.
5. Warranties; Disclaimer
Representations and Warranties. Representative represents and warrants that: (a) it has all necessary right, power, and authority to enter into and perform this Agreement; (b) its performance under this Agreement does not and will not violate or cause a breach of the terms of any other Agreement to which it is a party; (c) it will not add to, delete from, or modify any Switcher Materials except pursuant to this Agreement; and (d) its performance under this Agreement: (i) will comply with all applicable regulations and laws, including without limitation the CAN-SPAM Act of 2003, the Foreign Corrupt Practices Act or its foreign equivalents, and export control regulations; and (ii) does not and will not infringe or misappropriate the intellectual property, privacy, or publicity rights of any third party. Switcher represents and warrants that (x) it has all necessary right, power, and authority to enter into and perform this Agreement; (y) its performance under this Agreement does not and will not violate or cause a breach of the terms of any other agreement to which it is a party; and (z) the Switcher Materials will not infringe or misappropriate the intellectual property rights of any third party.
Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN SECTION 5.1, SWITCHER MAKES NO WARRANTIES TO REPRESENTATIVE, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. ALL RELATED INFORMATION, MATERIALS, SERVICES, AND TECHNOLOGY PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF SWITCHER HEREUNDER ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS.
6. Liability Limitation
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT WITH RESPECT TO A BREACH OF SECTION 9.1 (CONFIDENTIALITY) AND REPRESENTATIVE’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY’S LIABILITY SHALL EXCEED THE DOLLAR AMOUNTS PAYABLE BY SWITCHER TO REPRESENTATIVE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
Representative shall defend, indemnify, and hold harmless Switcher and each of its partners, officers, directors, employees, agents, representatives, and personnel (“Switcher Indemnitees”) from and against any and all claims, demands, judgments, liabilities, losses, and causes of action of any third parties, and any costs (including reasonable attorneys’ fees) associated therewith, to the extent arising out of or related to: (a) the gross negligence or willful misconduct of Representative, its employees, or agents; (b) any breach of Representative’s obligations under this Agreement; and (c) any breach of Representative’s representations and warranties under this Agreement (collectively “Claim(s)”). Switcher will (at Representative’s sole expense) reasonably cooperate to facilitate the settlement or defense of such Claim. Representative is solely responsible for defending any Claim against a Switcher Indemnitee, subject to such Switcher Indemnitee’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Switcher Indemnitee; provided however, that Representative will not agree to any settlement that imposes any obligation or liability on a Switcher Indemnitee without such Switcher Indemnitee’s prior express written consent.
8. Term and Termination
Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period of one (1) year (the “Initial Term”), and, following the Initial Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) calendar days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable.
Termination. Either party may, at its option, terminate this Agreement upon ninety (90) days written notice to the other party for any reason. Switcher may terminate this agreement immediately in the event of material breach of this Agreement by Representative, in which case Representative shall not be entitled to any unpaid Incentives prior to termination date.
Effect of Termination. Upon any termination or expiration of this Agreement, Representative (a) will immediately cease Earning Incentives; (b) shall immediately cease all promotion of the Services, and (c) shall immediately return to Switcher, or at the option of Switcher, destroy, all Confidential Information of Switcher and Switcher Materials. Notwithstanding any termination or expiration of this Agreement, the following Sections shall survive and remain in effect: 1, 2.4, 3, 5, 6, 7, 8.3, 9 and 10. Any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.
9. Confidentiality and Publicity
Confidentiality. During the course of performing this Agreement, each party (“Recipient”) may have access to information of the other party (“Discloser”) that a reasonable person would recognize as Discloser’s confidential or proprietary information (“Confidential Information”). Confidential Information shall include without limitation this Agreement, the terms and conditions of the Agreement, information exchanged in the course of negotiating the Agreement, all Client lists and information relating to Recipient’s products and pricing, as well as the Incentive amounts defined by the program. Recipient agrees: (a) to use and cause its representatives to use Discloser’s Confidential Information only as necessary for Recipient to perform its obligations under the Agreement (or in the case of Switcher, to receive the Services and/or to use any materials provided by a subcontractor); (b) to protect and cause its representatives to protect Discloser’s Confidential Information with no less than reasonable care; (c) not to disclose, sell, license, transfer, or otherwise make available Discloser’s Confidential Information to any third party unless required as a matter of law, in which case Recipient agrees to notify Discloser in advance of disclosure to the extent permitted by law and moreover limits such disclosure to the minimum disclosure necessary to comply with the legal requirement; (d) to share Discloser’s Confidential Information with its representatives, including its employees and subcontractors, only as necessary to perform the Agreement, under confidentiality obligations at least as restrictive as those in this Agreement; (e) to immediately notify Discloser upon discovery of any loss of or unauthorized access to Discloser’s Confidential Information; (f) upon written request by Discloser, to return or certify destruction of all documents and other tangible materials representing Discloser’s Confidential Information and all copies thereof except for copies saved on any backup media or servers as part of Recipient’s normal business continuity practices; (g) not to copy, decompile, disassemble, or otherwise reverse engineer any of Discloser’s Confidential Information; (h) not to export any Confidential Information in violation of export control laws; (i) that all Confidential Information is and shall remain the exclusive property of Discloser; and (j) that due to the unique nature of Confidential Information, unauthorized disclosure or misuse of Confidential Information would cause not only financial harm to Discloser, but also irreparable harm for which money damages may not be an adequate remedy, and accordingly, breach or threatened breach of any provision of this Section 9 shall entitle Discloser, in addition to any other legal or equitable remedies, to immediate equitable relief, including an injunction, without the necessity of posting any bond. Recipient’s foregoing obligations with respect to Confidential Information disclosed before termination of this Agreement: (x) shall not apply to information that: (i) was rightfully known by Recipient without restriction before receipt from Discloser; (ii) is rightfully disclosed to Recipient without restriction by a third party; (iii) is or becomes generally known to the public without violation of this Agreement by Recipient; or (iv) is independently developed by Recipient or its representatives without access to or reliance on such information; and (y) will expire three (3) years after the last disclosure of such Confidential Information, provided, however, that obligations with regard to any Confidential Information that qualifies as trade secret under applicable law shall remain in effect for as long as such information continues to qualify as trade secret.
Publicity. Except as otherwise set forth herein, neither party will issue or make, directly or indirectly, any press releases or other public announcements relating to the Agreement or the underlying transaction(s) between Switcher and Representative without the prior written approval of the other party, which may withhold such approval in its sole discretion.
This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements, representations, and discussions between them with respect thereto. This Agreement may be amended or waived only by the written and signed agreement of both parties. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees and expenses. This Agreement shall be governed by the internal laws of the State of Kentucky, without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under the Agreement shall be in the federal and state courts located in Louisville, Kentucky, and both parties hereby consent to such jurisdiction and venue for this purpose. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. Any notices sent pursuant to the Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or upon receipt if mailed by certified mail, return receipt requested, or a nationally recognized overnight courier, and addressed to the parties at the addresses set forth in the applicable SOW (or at such other addresses as may be specified by either party in accordance with this Agreement), provided that any and all notices to Switcher must also include a copy sent by email to email@example.com. Neither party may assign this Agreement or assign or delegate any of its rights or obligations under this Agreement, in whole or in part, without the other party’s prior written consent; provided, however, that either party may assign this Agreement without the other party’s consent to a third party with or into which the assigning party merges or to which the assigning party sells all or substantially all of its assets. Any attempt to assign or delegate any rights or obligations under this Agreement in violation of this paragraph shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of each party’s permitted successors and assigns.