PARTNER AGREEMENT

AGREEMENTS

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the Parties agree as follows:

1. Defined Terms:

1.1 “Company Brand” means any or all of Company’s trademarks, service marks, logos, trade names, promotional materials, trade dress, product or service names presently existing or adopted, obtained or introduced by Company during the term of this Agreement.

1.2 “Company Technology”  means the Software, systems and technology owned or licensed by Company, including all improvements, derivatives, updates, upgrades and additions to the foregoing and all associated Intellectual Property Rights.

1.3 “Confidential Information”  means any information that disclosed by Company to Partner that is marked as confidential or would normally be considered confidential under the circumstances, including, without limitation, trade secrets, technology, data, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to Partner without restriction on use or disclosure prior to receipt of such information from Company; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Partner; (c) is developed by Partner independently of, and without use of or reference to, any Confidential Information of Company; or (d) is received by Partner from a third Party who is not under any obligation to Company to maintain the confidentiality of such information. Both Parties agree that the terms and conditions of this Agreement will be treated as Confidential Information, although this will not be interpreted to prevent Company from entering into substantially similar agreements with other entities or persons.

1.4 “End User”   means a user of the Software.

1.5 “End User Data”  means any data, information, or other materials of any nature whatsoever, provided to Partner by an End User in the course of the demonstration or use of the Software, including any data otherwise captured or generated by the Software.

1.6 “Intellectual Property Rights”   means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

1.7 “Partner Brand”   means any or all of Partner’s trademarks, service marks, logos, trade names, promotional materials, trade dress, product or service names presently existing or adopted, obtained or introduced by Partner during the term of this Agreement for use in connection with the White Label Software.

1.8 “Partner Fees”  means the non-refundable fully-earned fees payable by Partner to Company pursuant to Section 3.7.

1.9 “Software”  means the ZyraTalk customer engagement and lead-generation software, including, without limitation, all versions, features, functionality, and services incorporated therein, which is developed and provided by Company and resold by Partner, including White Label Software.

1.10 “Territory” means the countries of the United States of America, Australia, and Canada.

1.11 “Use Policy”   means Company’s then current Use Policy, available at www.zyratalk.com, as amended from time to time, in Company’s sole and absolute discretion.

1.12 “White Label Software” means the Software developed and provided by Company and sold by Partner under the Partner Brand as the same may be determined by Partner in its sole discretion.

1.13 “Effective Date”  means the commencement date of this agreement as stated in the associated Order Form.

2. Term of Agreement: Unless otherwise noted in the associated Order Form, this Agreement shall commence as of the Effective Date and shall continue thereafter for 30 days (the “Initial Term”), unless sooner terminated pursuant to Section 13. Thereafter, the Initial Term shall be extended for successive one-month periods (each a “Renewal Term”). If a non-renewal notice is provided by either Party, the agreement will terminate 30 days from the provided notice. If there is a billing period during that period, it will still take place on its respective date. (the Initial Term and any Renewal Term shall be collectively referred to as the “Term”).

3. Terms and Conditions for Partner

3.1 Appointment:  Subject to Partner’s compliance with the terms and conditions of this Agreement, Company appoints Partner as an independent, non-exclusive, authorized Partner of the White Label Software. Partner will use commercially reasonable efforts to market and promote the White Label Software to potential customers. During the Term, Partner will not sell, market, distribute, or otherwise promote any software which is competitive with the Company Technology.

3.2 License Grant, Scope:  Subject to the terms and conditions of this Agreement, Company hereby grants to Partner a non-transferable, non-exclusive, non-sublicensable license to provide the White Label Software to End Users. Except for integrations directly related to Partner’s implementation of the Partner Brand, which have been previously approved by Company in writing, Partner will not and will not attempt to alter, modify, edit or other change the source code or object code underlying the White Label Software.

3.3 Pricing:  Subject to Partner’s compliance, at all times, with the terms of this Agreement, Partner may resell the White Label Software at such prices as Partner determines in its sole discretion.

3.4 End User Agreements:  Partner will ensure that all End Users of the White Label Software agree to and comply with the Use Policy. Partner will not alter, modify, edit, or otherwise change the Use Policy.

3.5 Independent Contractor:  Partner acknowledges and agrees that this Agreement does not create any joint venture, partnership, agency, or employment relationship between the Parties. Partner and Company are independent contractors with respect to one another under the terms of this Agreement. Neither Party will have the authority to legally bind the other Party to any contract, proposal, or commitment or to incur any debt or create any liability on behalf of the other. Partner agrees not to do anything which misrepresents its relationship with Company.

3.6 Reservation of Rights:  Company owns and retains all worldwide right, title and interest in and to Company Technology, including, without limitation, the Software, Company Brand and all Intellectual Property Rights arising from or relating thereto. Any use of the Company Brand by Partner will inure to the benefit of Company. Further, Partner will: (i) not assert any ownership interests in or contest the validity of the Company Brand or Company Technology or any Intellectual Property Rights arising from or relating thereto; (ii) comply with written guidelines that Company may provide to Partner from time to time; (iii) not, at any time during the Term of this Agreement, register or cause to be registered the Company Brand or Company Technology or any trademarks, service marks, logos, trade names or trade dress confusingly similar to the Company Brand; and (iv) not use the Company Brand in any manner that is likely to cause confusion, mistake, or deception. Except as expressly provided herein, nothing in this Agreement will confer upon Partner any rights to the Company Brand and Company Technology. Partner owns and retains all worldwide right, title and interest in and to Partner Brand and all Intellectual Property Rights arising from or relating thereto. Any use of the Partner Brand by Company will inure to the benefit of Partner.

3.7 Partner Fees, Reports, Audit Rights:  Unless otherwise stated in the associated Order Form, Partner shall be solely responsible for invoicing and collecting payments from its customers in connection with sales of the Software. Partner shall pay Partner Fees, on a monthly basis. These fees will reflect the agreed upon payment terms found in the Order Form. Partner Fees shall be paid to Company within thirty (30) days of the end of each calendar month. Further, Partner shall submit monthly reports to Company, within thirty (30) days of the end of each calendar month, which include sufficient details to allow Company to confirm the accuracy of the Partner Fees owed, including, without limitation, the total number of Software subscriptions sold by Partner, End User totals for each sale, and the price(s) paid.

3.8 Payment Resolution:  If Partner disputes any payment obligation under this Agreement, Partner must provide Company with a written statement explaining the basis for its position within ten (10) days following the date payment was made. Partner will cooperate with Company by providing documents, explanations, and other information as requested by Company in good faith in an attempt to resolve the dispute. If Partner fails to provide notice within ten (10) days, or if Partner does not cooperate in Company’s investigation of the dispute, Partner forever waives any and all rights associated with such payment obligation.

3.9 End Users are Joint Customers:  Partner acknowledges and agrees that End Users are considered to be the customer of both Partner and Company. For avoidance of doubt, End Users will be considered to be primarily the customer of Partner for software implementation, training, and support purposes. Partner acknowledges and agrees that communication between Company and End Users may be required in the normal course of business to provide the Software to End Users. This would include Company providing any assistance with any of the tasks listed above.

3.10 Company Approval of Sales:  Partner agrees that all sales of the Software under this Agreement are subject to final acceptance and approval by Company.

3.11 Ensuring End User Satisfaction:  Partner acknowledges that onboarding, implementation, training, and support services provided by Partner (“Professional Services”) are a critical part of providing the Software to an End User, and that Professional Services provided by Partner are necessary to achieve and maintain End User satisfaction in using the Software. Company agrees to assist in these Professional Services to ensure success to the End User and Partner.

3.12 Compliance with Laws, Non-solicitation and Non-interference:  Partner will comply with, and will ensure that End Users comply with, all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Software, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Partner will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Partner will not in any way express or imply that any opinions contained in Partner’s promotional activities are endorsed by Company, unless such promotional activities have in advance been endorsed in writing by Company. Partner will not solicit, directly or indirectly, any persons or entities which Partner knows to be (or should reasonably know to be) a Company customer for any purpose, except for the purpose of promoting products and services not provided by Company. Partner will not scan Company website, purchase Company keywords, or otherwise engage in activities which interfere in Company’s relationships with its customers. Partner will not engage in conduct or activities which diminish or otherwise damage the reputation or goodwill of Company, the Company Brand, the Company Technology and any other of Company’s Intellectual Property Rights.

3.13 Partner’s Rights to End User Data:  Partner acknowledges and agrees that Partner has shared rights to End User Data entered or processed via the White Label Software.

3.14 Non-Exclusivity:  Partner acknowledges and agrees that this Agreement is non-exclusive, and that Company reserves the right to offer and sell the White Label Software directly to its customers and to retain other Partners within or outside of the Territory.

3.15 End User Agreements:  Partner shall ensure that each End User’s access to and use of the Software made available by Partner, directly or indirectly, complies with applicable law and is subject to and governed by a legally enforceable End User License Agreement (“EULA”) that includes provisions at least as protective of Company and its suppliers as those set forth at zyrachat.com/terms, prior to providing such access and/or use of the Software. Partner shall sell Software to each End User under terms that do not impose any obligation or liability on Company to which Company has not consented in writing in this Agreement. Partner will be financially responsible for any claims against and damages to Company caused by any failure to include the provisions set forth in this Section 3.15. Partner shall use commercially reasonable efforts to enforce the terms of each EULA, notify Company of any material breach of any such agreements that involves use or misuse of the Software, and give Company all reasonable assistance in connection with any proceedings that Company may institute related to such breach.

3.16 While Label Software:  Upon receipt of Company’s prior written approval, which may be granted or withheld in Company’s sole and absolute discretion, Partner may “white label” the Software and provide same to End User’s under the Partner Brand; provided, however, Partner agrees that it will remain solely responsible for any and all claims and liabilities related to the Partner Brand.

3.17 Onboarding:  Partner agrees that it has the full power and authority to enter into this Agreement and to submit any onboarding information required in connection this Agreement, including, without limitation, information related to its End Users, and that any such information provided to Company is, to Partner’s knowledge, accurate and complete.

4. Company’s Obligations:

4.1 Delivery of White Label Software:  During the Term, Company will provide Partner with: (i) a custom software dashboard developed by Company for use in connection with Partner’s sale of the Software; (ii) necessary training and ongoing technical support as determined by Company in its sole discretion; and (iii) access to the Software sufficient for Partner to perform its obligations under this Agreement and provide the Software to End Users.

4.2 Demonstration Account License Grant:  Subject to the terms and conditions of this Agreement and Partner’s End Users complying with, at all times, the Use Policy, Company grants Partner during the Term a non-exclusive, limited, non-sublicensable, non-transferable and terminable license within the Territory to use and display one (1) demonstration account of the Software solely for demonstration purposes in order to promote and sell to End Users the Software. In addition to any other rights or remedies Company might have, the rights granted to Partner in this paragraph are provided to Partner predicated and conditioned upon Partner agreeing, and Partner hereby agrees, to not (and not allowing any third party to) copy, modify, create a derivative work of, combine with other software, reverse engineer, reverse assemble, disassemble, or decompile any Company Technology, including, without limitation, any part of the Software, or otherwise attempt to discover any source code, modify the Software, or any software associated or related therewith, in any manner or form, or use unauthorized modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Software.

4.3 Trademark License Grant:  Subject to the terms and conditions of this Agreement, Company hereby grants Partner, a non-exclusive, non-sublicensable, nontransferable, royalty-free, license within the Territory to use the Company Brand, solely during the term of this Agreement as necessary to perform the marketing and promotional obligations required by this Agreement within the Territory. Any use of Company Brand is subject to Company’s right to review and approve or reject in advance each proposed use of the Company Brand, and will conform with any trademark usage guidelines, polices, or requirements provided by Company. Partner will submit to Company for Company’s review and approval all items that will contain Company Brand prior to Partner’s use of the Company Brand. Any rights not expressly licensed herein are reserved by Company, and all use by Partner will accrue to the benefit of Company. Partner will not take any action that would conflict with or be contrary to Company’s rights and interest in its Company Brand.

5. Marketing/Advertising:  Company hereby authorizes Partner to include in its marketing or product distributions, marketing materials about the Software, which Company has prepared and provided to Partner for this purpose. Partner will not alter modify or otherwise change any such material provided to it by Company. Partner may also use other marketing materials of its own to promote the Software, however, all such marketing materials must be approved in advance in writing by Company.

6. Publicity:  The Parties will jointly determine whether a press release announcing the establishment of the Parties’ relationship is warranted. The Parties further agree to reasonably cooperate as necessary to effectuate any such press release.