TIMELY SALES PARTNER PROGRAM AGREEMENT

TIMELY SALES PARTNER PROGRAM AGREEMENT

(MODIFICATION DATE: 07/29/2019)

 

PLEASE READ THIS SALES PARTNER PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the Partner) and us (Timely). It is a legal document that describes how we will work together and other aspects of our business relationship.
The Sales Partner Program Agreement applies to your participation in our Sales Partner Program. Only Partners that accept the terms set forth are accepted to participate in our Sales Partner Program.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Sales Partner Program changes, ends, or is replaced by another program. Should we update or replace the terms, you will be notified through our an in-App notification in your portal, at the time of login to our App, or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

We periodically update these terms and we will let you know when we do through the Notification app in the Timely portal used to access your Timely subscription (if you have one), or by posting a revised copy on our website. You agree to review the AUP on a regular basis and always remain in compliance.

1. Definitions
“Sales Partner Program” means our sales partner program as described in this Agreement. “Agreement” means this Sales Partner Program Agreement and all materials referred or linked to herein.

“Capacity Limit” means the aggregate number of prospects or leads that you are permitted to have registered at any given time.
“Customer Terms of Service” means those terms and conditions located at https://time.ly/tos, as modified from time to time. 

“End User” means the authorized actual user of the Products or the party on whose behalf you use the Timely Products. 

“End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the Timely Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the Timely Products.

“Timely Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.

“Timely Products” means both the Subscription Service and Other Products. 

“List Price” means the standard pricing for the Subscription Service as listed at https://time.ly/calendar-features-pricing-table/. Timely reserves the right to change pricing at any time.

“Net Revenue” means the initial fee, any renewal fees, and any upgrade or downgrade fees that are actually paid to us by an End User or by Partner on behalf of an End User for the Subscription Service. Net Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds not due to a contract breach by Timely, and (ii) shall exclude any implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

“Other Products” means those products and services that we offer, which are not included in the Subscription Service; and, for the purposes of this Agreement, Other Products include all of our legacy sales and marketing products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“Partner Transactions” means those transactions that are eligible for a Revenue Share pursuant to the ‘Partner Transactions’ section of this Agreement.

“Program Policies” means the policies applicable to partners which we make available to you at http://legal.time.ly/acceptable-use.

“Revenue Share” means an amount equal to twenty percent (20%) of Net Revenue paid to us by an End User or Partner in the first twelve (12) months following the first day of activating a subscription for the Subscription Service associated with the Partner Transaction. 

“Subscription Service” means our web-based Timely Journey software that is subscribed to, and developed, operated, and maintained by Timely, accessible via http://www.time.ly or another designated URL, and add-on products to our sales, services or marketing software. For the purposes of this Agreement, the Subscription Service does not include our legacy sales and marketing products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“We”, “us”, “our”, and “Timely” means Time.ly Network Inc.
“You” and “Partner” means the party, other than Timely, entering into this Agreement and participating in the Sales Partner Program.

2. Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and us will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

3.  Partner Acceptance 

Once you complete an application to become a Sales Partner, we will review your application and notify you whether you have been accepted to participate in the Sales Partner Program, or not.  Before we accept an application, we may want to review your application with you, so we may reach out to you for more information.  We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Sales Partner Program within thirty (30) days from your application, your application is considered to be rejected.

If you are accepted to participate in the Sales Partner Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect until terminated, pursuant to the terms set forth below.  You may also be prompted to agree to this Agreement before accessing the Partner Tools that we may make available to you. Further, you will need to complete the enrolments criteria set out in the Program Policies. Failure to complete the enrolment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Sales Partner Program.

4.  Partner Transactions 
a.  b. Partner Rights and Obligations We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Timely Products to your prospects and customers, and (ii) to provide End Users access to use the Timely Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a prospect.

b. Compliance with Program Policies. You will comply with the terms and conditions of this Agreement at all times, including the Program Policies. 

c.  Sales Partner Program Limits. Your Capacity Limit will be equal to five hundred (500) prospects.  Each accepted registration will expire one hundred and eighty (180) days from the date the prospect was registered. If you are actively pursuing a prospect and the registration is expired, then you may re-register the prospect. An accepted registration may be considered expired prior to the conclusion of any one hundred and eighty (180) day period if you and we mutually agree to the early expiration of the accepted registration.  We will pay you a Revenue Share for the first year following the start of the subscription for the Subscription Service associated with the Partner Transaction, provided that you remain eligible to receive a Revenue Share pursuant to the terms of this Agreement.  The start of the subscription is determined by the date of the first purchase of a Subscription Service by the End User.  For example, if the initial Partner Transaction is for one user of Journey/Pro, and there is a subsequent Partner Transaction for a Journey/Hub subscription for the same subscription period as the initial Partner Transaction, Partner will receive Revenue Share for the initial Pro user purchased for one year, and Revenue Share for the subsequent Hub subscription purchased for the pro-rated period, starting at the time of the subsequent purchase through the end of the one year period associated with the initial purchase.  This example assumes Partner otherwise remains eligible to receive Revenue Share pursuant to the terms of this Agreement.

d.   Eligibility. To be eligible for a Revenue Share, a prospect must be registered, accepted and valid in accordance with the ‘Submission, Acceptance and Validity’ or the ‘Shared Leads’ section.

You are not eligible to receive a Revenue Share or any other compensation from us based on transactions for Other Products, based on transactions with a Timely Lead (as defined below) or if: (i) such compensation is disallowed or limited by Federal, State or Regional law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us or our affiliates; (iii) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you, or (iv) the End User participates in our Sales  Partner Program. In competitive situations with other partners, we may elect to provide the Revenue Share to the partner that actually secures the business with the End User, which may result in you being ineligible for Revenue Share, regardless of whether or not you registered the prospect. We may discontinue Revenue Share payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.

e.  Submission, Acceptance and Validity. You must register each prospect with us using the partner tool on our CRM tool, Hubspot, prior to the close of a Partner Transaction. To register a prospect, you must provide at least the following information about each prospect: contact first name, contact last name, email, URL and company name. We generally will accept a prospect who, in our reasonable determination: (i) is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept a prospect in our reasonable discretion. If a prospect does not purchase the Subscription Service before its registration expires, you will need to complete the registration process again in order to re-qualify for a Revenue Share for that prospect. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated.

f.  Timely Leads. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such a prospect may have a need for the services you offer (each, a “Timely Lead”). We can do the same for other partners of ours, even if it is for the same Timely Lead. You may use the information about the Timely Lead provided only to market and sell your services to them and not for any other purpose (unless the Timely Lead otherwise consents.) Immediately upon our or the Timely Lead’s request, you will promptly discontinue all use of and delete the Timely Lead’s information. Timely Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

g.   Shared Leads.If we decide to participate in the same sales process as you and this results in the sale of the Subscription Service to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, (iii) being expired, or (iv) exceeding the registered capacity limits or other applicable limits, (each, a “Shared Lead”) and you have an Active Engagement (defined below) with such Shared Lead, then we may in our discretion, determine that Shared Lead will be considered a registered, accepted and valid prospect for the purposes of the ‘Eligibility’ section above. An “Active Engagement” means that you have a fully executed written agreement with the Shared Lead under which you provide your services that (i) either pre-dates the time at which the sale of the Subscription Service is closed, or is signed contemporaneously with the close of the sale of the Subscription Service, and (ii) extends at least ninety (90) days beyond the close of the sale of the Subscription Service.

h.   Engagement with Prospects. We may elect to engage with prospects directly, regardless of whether or not the prospects are valid.  When we do engage, we may choose how and whether to engage with each prospect and may request that you collaborate with us in the engagement. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.

If we request, you will facilitate our participation on calls with you and various End User(s). We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Sales Partner Program.
In a resulting transaction, the End User will contract directly with us for provision of the Timely Products.

You will take all reasonable steps to ensure that End Users do not use the Timely Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the Timely Products in violation of the Customer Terms of Service, then you will immediately notify us in writing.

i.  Performance Review. As part of your participation in the Sales Partner Program, you will need to maintain an average of US$100 of Net Revenue from Partner Transactions every month (the “Monthly Commitment”). We will review your performance every 90 days, or as we otherwise deem to be appropriate, and if you are found to be performing at less than 80% of the Monthly Commitment, we may terminate this Agreement in accordance with the ‘Termination’ section below in addition to any other termination rights we may have. 

5. Revenue Share and Payment.
a.  Requirements for Payment; Forfeiture.  In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; (ii) completed all information in our account information form (which can be downloaded here); (iii) submitted to us the necessary tax documents; and (iv) returned the forms required by (ii) and (iii) above by email to accounts@time.ly.

Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 5(a)(i-iv) remain outstanding for six (6) months immediately following the close of a Partner Transaction, then your right to receive Revenue Share arising from any and all Partner Transactions with the associated End User will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Revenue Share associated with a Forfeited Transaction.  Once you comply with all of the requirements in section 5(a)(i-iv), then you will be eligible to receive Revenue Share on Partner Transactions, as long as these Partner Transactions do not involve the same End User associated with a Forfeited Transaction.

b.  Revenue Share Payment.  We will pay the Revenue Share amount due to you within thirty (30) days after the end of each fiscal quarter in an amount equal to the Net Revenue we recognize as revenue from Partner Transactions during such quarter, times the Revenue Share percentage. For example, pre-payment in full by an End User for an annual commitment will be recognized by us as revenue quarterly on a pro-rata basis for the length of time the Subscription Service was provided during each quarter during the annual term, and you will receive the Revenue Share on that same quarterly pro-rata basis. In order for you to receive the Revenue Share you must have submitted the required documentation set out at (5) a. Requirements for Payment; Forfeiture (ii) and (iii) above no later than thirty (30) days after the end of the fiscal quarter. If we have not received such documentation within this timeframe, we will not process the Revenue Share payment until the next fiscal quarter payment date. The currency in which we pay the Revenue Share will be in US dollars. We will not pay more than one Revenue Share or other similar referral fee on any given partner sale (unless we choose to in our discretion) and we may apportion a Revenue Share if more than one of our partners has contributed to the close of a sale. We may withhold the Revenue Share payment until the Revenue Share amount that we owe you is above $50. 

c.  Taxes.  You are responsible for payment of all taxes applicable to the Revenue Share. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Revenue Share amount.  All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

d.  Partner Payment Obligations.  In the event you placed the order with us for an End User, for payments made by credit card, you will provide us with valid and updated credit card information or bank account information. You authorize us to charge the credit card or bank account for all fees payable. You also authorize us to use a third party to process payments, and consent to the disclosure of the payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice.

6. Training and Support

a.  Partner Training and Support. We will make available to you, without charge, tutoring and other resources made available as part of our Sales Partner Program. We may change or discontinue any or all parts of the Partner Training and Support, and any other Partner Program benefits or offerings at any time without notice.

b.  End User Training and Support. We may require End Users to go through and/or purchase our standard on-boarding.  We will provide user training purchased by an End User as set forth in a mutually agreed upon order.  We may communicate directly with any End User about the use of Timely Products and any support issues experienced.

c.  Test Portal.  If we make a Timely Test Portal available to you, then you will use the Test Portal for solely for your education, demonstration and evaluation purposes only, and you are not permitted to use it for any other purpose.  You will not lease, distribute, license, sell or otherwise commercially exploit the Test Portal. The Customer Terms of Service apply to your use of the Test Portal.  As indicated in the Customer Terms of Service, you will comply with our Acceptable Use Policy at http://legal.time.ly/acceptable-use with respect to your use of the Test Portal.  We reserve the right to suspend, modify, or discontinue any or all part of the Test Portal at any time without prior notice to you.  In the event of a conflict between the terms that apply to the Test Portal as specified in this Agreement and the Customer Terms of Service, the terms of this Agreement shall control.

7. Trademarks

You grant to us a nonexclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Sales Partner Program and this Agreement. 

During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section.  You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Sales Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use.  You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

8. Proprietary Rights

a.  Timely’s Proprietary Rights.  No license to any software is granted by this Agreement. The Timely Products are protected by intellectual property laws. The Timely Products belong to and are the property of us. We retain all ownership rights in the Timely Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Timely Content, or the Timely Products in whole or in part, by any means, except as expressly authorized in writing by us. The design, the logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.

We encourage all customers and partners to comment on the Timely Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Timely Products, without payment to you.

b.  End User’s Proprietary Rights.  As between you and End User, End User retains the right to access and use the End User portal associated with the Timely Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. We have the right to communicate directly with the End User and/or may port ownership of the portal associated with the Timely Products to the End User.


9. Confidentiality  

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Timely customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.  The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

10. Opt Out and Unsubscribing
You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to Timely Leads and Shared Leads.  For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

11. Term and Termination

a.  Term. This Agreement will apply for as long as you participate in the Sales Partner Program, until terminated.

b.  Termination Without Cause.  Both you and Timely may terminate this Agreement with fifteen (15) days written notice to the other party.

c.  Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement with five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.

d.  Termination for Cause.
We may terminate this Agreement and/or suspend your account or the End User’s access to the Timely Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days’ notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (vi) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

e.  Effects of Expiration/Termination.  Should this Agreement expires and/or terminates: (i) without cause by us, (ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, we will not pay you fees on End User payments recognized by us after thirty (30) days of the date of such termination or expiration.  In the event of termination without cause by you, or for cause by us, however, our obligation to pay and your right to receive any Revenue Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination. Except expressly set forth in this section, you are not eligible to receive a Revenue Share after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete all Timely Leads and Shared Leads if we provided them to you and you do not otherwise have consent from the applicable Timely Lead or Shared Lead to continue use of their data and information. Upon termination or expiration, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Sales Partner Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.

12. Partner Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Sales Partner Program will not conflict with any of your existing agreements or arrangements.

13. Indemnification
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Sales Partner Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Test Portal, or (e) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

14. Disclaimers; Limitations of Liability
a.  Disclaimer of Warranties. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE TIMELY PRODUCTS, TIMELY CONTENT, THE SALES PARTNER PROGRAM OR THE TEST PORTAL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE TEST PORTAL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE TIMELY PRODUCTS AND TEST PORTAL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE TIMELY PRODUCTS AND THE TEST PORTAL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

b.  No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

c.  Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED PARTNER TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
d.  Test Portal Program. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE TEST PORTAL PROGRAM THAT YOU USE.  WE DO NOT PROMISE TO MAKE THE TEST PORTAL PROGRAM AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.

15. Non-Solicitation
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement.  Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.

16. General
a.   Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be posted at http://legal.time.ly/sales-partner-program-agreement  and we will let you know through an in-app notification in your portal, notification at the time of sign-in, or by email. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.  If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

b.  Applicable Law. This Agreement shall be governed by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the Province of British Columbia, Canada, and shall be considered to have been made and accepted in British Columbia, Canada, without reference to principles of conflict of laws. For clarity, the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.

c.  Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d.  Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e.  Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.

f.  Compliance with Applicable Laws.  You shall comply and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of Canada and any other relevant local export laws and regulations may apply to the Timely Products. You will comply with the sanction programs administered by the Minister of Foreign Affairs.  You will not directly or indirectly export, re-export, or transfer the Timely Products to prohibited countries or individuals or permit use of the Timely Products by prohibited countries or individuals.

g.  Data Processing. To the extent that any Personal Data is processed in connection with the Sales Partner Program the terms set forth in Exhibit A, which are hereby incorporated by reference, shall apply.
h.  Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

i.  Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To Timely Network Inc.:
Timely Network, Inc.,
224 West Esplanade, North Vancouver B.C. V7M 1A4, Canada
Attention: General Counsel

To you: your address as provided in our partner account information for you.

We may give electronic notices by general notice via the partner portal and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center in the partner portal. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

j.  Entire Agreement. This Agreement is the entire agreement between us for the Sales Partner Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Timely Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Timely Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

k.  Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

l.  No Third-Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
m.  No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Timely Products, our trademarks, or any other property or right of ours.
n.   Sales by Timely. This Agreement shall in no way limit our right to sell the Timely Products, directly or indirectly, to any current or prospective customers.

o.   Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

p.  Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Revenue Share and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.

The signature confirms that you read, understood and accept the Terms and Conditions set forth in this Agreement

 

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Signature                                                                                                           Date (DD/MM/YYYY)

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Name (Please PRINT)