Version 1, April 7, 2022
BY SUBMITTING AN APPLICATION FOR PDQ LOGISTICS LTD.’S (THE “COMPANY”) PARTNER REFERRAL PROGRAM THROUGH THE PARTNERSTACK PLATFORM (THE “PARTNERSTACK PLATFORM”) AND BY CLICKING ON THE “SUBMIT”, “ACCEPT” OR SIMILAR BUTTON, YOU ARE SIGNIFYING THAT YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS OF THESE TERMS AND CONDITIONS (THE “AGREEMENT”), AS MAY BE UPDATED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN.
THIS AGREEMENT PROVIDES TERMS AND CONDITIONS APPLICABLE TO YOUR MEMBERSHIP IN THE COMPANY’S PARTNER REFERRAL PROGRAM (THE “REFERRAL PROGRAM”) THAT ARE IN ADDITION TO ANY TERMS AND CONDITIONS THAT YOU MAY HAVE AGREED TO PURSUANT TO AN AGREEMENT WITH PARTNERSTACK. IN THIS AGREEMENT, THE TERMS “COMPANY” “WE”, “US” OR “OUR” REFERS TO PDQ LOGISTICS LTD., AND THE TERMS “YOU”, “YOUR” OR “PARTNER” WILL REFER TO YOU, INCLUDING, FOR THE AVOIDANCE OF DOUBT, YOUR EMPLOYEES OR OTHER INDIVIDUALS USING THE REFERRAL PROGRAM ON YOUR BEHALF. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “PARTNER” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
THIS AGREEMENT INCORPORATED, AND PARTNER AGREE TO COMPLY WITH, THE MOST RECENT VERSION OF ALL POLICIES, GUIDELINES AND OTHER RULES REFERENCED IN THIS AGREEMENT OR ACCESSIBLE ON THE REFERRAL PROGRAM PROFILE ON THE PARTNERSTACK PLATFORM AVAILABLE AT HTTPS://PDQ.PARTNERSTACK.COM (THE “POLICIES”), AS THEY MAY BE UPDATED FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY POLICIES, THIS AGREEMENT SHALL PREVAIL.
THE COMPANY AND THE PARTNER EACH ACKNOWLEDGE THAT THEY MAY BE PARTIES TO AGREEMENTS WITH PARTNERSTACK AND MAY PARTICIPATE IN OTHER PARTNERSTACK PROGRAMS. YOU ACKNOWLEDGE THAT THE COMPANY IS NOT A PARTY TO ANY AGREEMENT THAT YOU MAY HAVE WITH PARTNERSTACK, WILL BE IN NO WAY RESPONSIBLE FOR THE PERFORMANCE OF PARTNERSTACK AND THAT THE COMPANY IS NOT AN AGENT OR REPRESENTATIVE OF PARTNERSTACK.
NOW, THEREFORE, the Parties desire to set forth herein their agreements with respect thereto and agree as follows:
1. Approval; Cancellation.
1.1. Partner’s participation in the Referral Program is subject to Company’s approval, which may be withheld in Company’s sole discretion..
1.2. Unless notified to the contrary in writing by the Company, the Partner’s application to the Referral Program must be through a submission of an application request via the PartnerStack Platform in order to become an “approved” Partner eligible to participate in Referral Program. The Company will notify Partner through the PartnerStack Platform in writing (by e-mail or otherwise) whether or not Partner’s participation in the Referral Program has been approved. The Partner is not authorized to participate in the Referral Program or to post Internet hyperlinks (each, a “Link”) to Company’s website until approved by the Company.
1.3. If approved, Partner consents to be contacted at the email and telephone number it has provided in applying for the Referral Program, including via automated dialing systems, texts, and pre-recorded messages. Partner’s consent may not be revoked except in writing by both Parties.
1.4. Without derogating from the generality of the foregoing, in case the Partner’s participation in the Referral Program involves posting Links in the Partner’s Site to the Company’s Site (as such terms are defined below), the Company will reject Partner’s application or cancel Partner’s participating in the Referral Program if the Company determines in its sole discretion that the Site is unsuitable for the Referral Program, including if the Site displays, stores, processes or transmits: (i) material that infringes or misappropriates, or uses without appropriate consent, a third party’s intellectual property or proprietary rights; (ii) hate-related, abusive, and/or material advocating discrimination against individuals or groups; (iii) material promoting or related to violence of any kind; (iv) obscene or sexually explicit material, or anything which exploits of minors under 18 years of age; (v) material that violates, encourages, or furthers conduct that would violate any applicable laws, including any criminal laws, or any third‐party rights, including publicity or privacy rights; (vi) material that in any way targets children 13 years of age or younger or violates any applicable laws or governmental authority regulations related to child protection; and/or (vii) list coupon codes or discounts that were not officially provided by the Company.
2. Limited License Grant.
2.1. Limited License Grant. Upon receiving written approval from the Company, subject to the terms of this Agreement and solely during the Term, the Company grants to Partner a limited, personal, non-exclusive, non-sublicensable, non-transferable and revocable license to use those Company’s marks, trademarks, tradenames, logos, graphics, illustrations, advertising, promotion materials, trade dress, designs and icons specifically designated and provided by the Company (collectively, the “Marks”) solely in connection with the marketing, advertising, and promotion of the Company advertisement(s) posted on Partner’s approved website (the “Partner’s Site”) (which such advertisement must be approved in advance by the Company).
2.2. Partner’s use of the Marks shall be, at all times, subject to the prior written consent of the Company and in accordance with the following conditions: (i) Partner shall comply with all guidelines provided by the Company regarding the graphic reproduction, appearance and “look and feel” related to the marketing and representation of the Company and its Products; (ii) Partner’s use of the Marks shall include the appropriate trademark/service mark symbols and Partner shall not remove such symbols without the prior written consent of the Company; and (iii) nothing in the Agreement gives Partner any right, title or interest in the Marks or in other Company’s intellectual property rights or proprietary rights. The Company reserves all rights, title and interest in the Marks and the goodwill associated with use of the Marks shall inure solely to the benefit of the Company.
The Partner’s use of the Marks is limited to and arises only out of the limited license granted hereunder under Section 2.1. This limited license may be immediately terminated upon notice from the Company and shall automatically terminate upon any termination or expiration of this Agreement.
3. Rewards.
3. 1. Subject to the terms of this Agreement, Partner will be entitled to receive Rewards (as defined below) from the Company in consideration for a Qualified Sale (as defined below). “Rewards” means payments to which the Partner is entitled to in consideration for Qualified Sale pursuant to the terms of this Agreement. “Qualified Sale” means a successful sale of the Company’s product(s) (each, a “Product”) to a respective customer (the “Customer”) which occurred during the Term, originated from a lawful lead referral by the Partner to the Company (whether through approved Company’s advertisement posted in the Partner’s Site which operates as textual/graphical Link to a specific URL or landing page designated by the Company (the “Company’s Site”) or through a direct lead referral by the Partner to the Company through the PartnerStack Platform) (the “Lead”) which generated profits to the Company; provided, however, that such sale is not made to the Partner itself or its employees, agents, affiliates, etc. A Qualified Sale is disqualified whenever it occurs in connection with a violation of this Agreement or any other terms, conditions, and policies that the Company may issue from time to time that apply to the Referral Program. For the avoidance of doubt, the acceptance of (i) the Lead, and (ii) a respective Customer shall be subject to the Company’s sole and absolute discretion.
3. 2. The Rewards for a Qualified Sale will be paid by the Company to PartnerStack and PartnerStack shall process and distribute the Rewards to Partner, less fees, in accordance with your PartnerStack Terms of Service available at https://partnerstack.com/policies, and subject to the terms of this Agreement. The Company may chargeback to Partner (e.g., debit or offset from any amounts owed) any Rewards paid or credited to Partner with respect to sales that were not Qualified Sales, were procured fraudulently or as a result of any violation of this Agreement or applicable law or were paid in error; the Partner hereby consenting to the same. If fraud is detected, Partner’s Account (as defined below) will be made inactive pending further investigation. In addition, in the event that Partner have already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from you.
3.3. Rewards. Rewards will be paid as follows: (i) for each Qualified Sale, Partner shall be entitled to receive commencing as of the date of the Qualified Sale, and only during the first year after the commencement of such Qualified Sale, a monthly payment equal to thirty percent (30%) of the Net Revenue (as defined below) actually generated and recevied by the Company from such Qualified Sale in such given month, and (ii) an additional one-time payment of $500.00 for each Qualified Sale (the Reward pursuant to this (ii), the “One Time Reward”). “Net Revenue” means license fees recevied by the Company from a Qualified Sale, minus Company’s actual costs associated with the Qualified Sale (including, without limitation, consulting, integration or other professional services costs and fees). The Partner will be entitled to the One Time Reward subject to a Qualified Sale with a subscription period with a minimum period of at least three (3) months, provided that the payment of the One Time Reward will be made only after and subject to the completion of such three (3) months.
3.4. Other than the payment of the Rewards, Partner shall not be entitled to any additional compensation, commissions or business derived by or through Qualified Sales. The Company may, from time to time, propose special offers, which will be subject to a separate written agreement between the Company and the Partner. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, and duties. All taxes, withholdings, and duties of any kind payable with respect to Rewards shall be borne and paid by Partner.
3.5. For the avoidance of doubt and without derogating from the generality of the foregoing, the determination of whether the Lead made by Partner has resulted in a Qualified Sale shall be made solely by the Company.
4. Account. An account will be created in connection with Partner’s participating in the Referral Program (the “Account”), to be accessed and/or used solely by Partner's employees or service providers who are explicitly authorized by Partner to use the Platform (each, a “Permitted User”). Partner hereby acknowledges and agrees: (i) to keep, and ensure that the Permitted Users keep the Account login details and passwords secured at all times, and otherwise comply with the terms of this Agreement; (ii) to remain solely responsible and liable for the activity that occurs in the Account and for any breach of this Agreement by a Permitted User; and (iii) to promptly notify Company in writing if Customer becomes aware of any unauthorized access or use of the Account or the Referral Program.
5. Usage Guidelines; Prohibited Uses.
5.1. Partner shall publish or otherwise distribute advertisement in strict compliance with the terms of this Agreement and applicable laws and regulations. Partner is solely responsible for ensuring Partner’s compliance with such laws. The Company retains the sole and exclusive discretion to determine whether Partner’s advertising and conduct is in compliance with the terms of this Agreement and applicable laws and regulations. Any Links or ads placed in social media must clearly identify the Company as the destination website and may not misrepresent or alter the pricing of Products in any way. Any violations may result in immediate termination from the Referral Program without notice. Partner may only use coupons and promotional codes, if any, that are provided exclusively through the Referral Program. The Site must have bona fide content.
5.2. Except as expressly permitted herein, without the prior written consent of Company, under the Referral Program, Partner must not, and shall not allow any Permitted User or any other third party to, directly or indirectly: (i) make or publish any statement, claim, representation or warranty about Products or services that are inconsistent with or beyond the scope of Company’s marketing materials available from the PartnerStack Platform or otherwise authorized in writing by the Company for Partner’s use; (ii) misrepresent the services provided by the Company or the services offered by the Company’s website (including any guarantees regarding use of the services); (iii) make any public disclosure with respect to this Agreement or its participation in the Referral Program; (iv) imply any type of affiliation or relationship with the Company, other than that of an advertiser; (v) misrepresent its relationship with the Company (including any implication that the Company sponsors, supports or endorses Partner) publish or distribute advertising by telemarketing, fax, or text messaging in any form to any device; (vi) solicit visitors by pop-up advertisements; and/or (vii) provide cash, points or gifts to entice visitors as an incentive to complete an action on the Company’s Site.
6. Partner’s Representations and Warranties. Partner represents and warrants that: (i) it is a duly organized, validly existing, and in good standing under the laws of the state or country of Partner’s origin; (ii) it has all requisite power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement; (iii) it has established and implemented commercially reasonable practices and procedures and will continue to perform spot checks or audits to ensure that full compliance with all applicable laws and regulations, (iv) it will promptly notify the Company, in writing, if it receives any complaints or notices from any governmental agencies (including any third party claims asserted in state or federal courts) referencing a violation of any applicable laws and regulations and particularly, any complaint regarding the privacy or security of data, (v) it will perform a full investigation, within forty-eight (48) hours of receipt of a request, If either party receives an inquiry or complaint from a governmental agency (including any third party claims asserted in state or federal courts) relating directly to any data use and/or protection provisions, whether federal, state, or local statute or regulation; or for providing information that was procured through fraud, identity theft or any illegal or illicit means to determine the merits of the inquiry or complaint; and (vi) it shall post and maintain on its Site involved in the Referral Program during the Term a privacy policy that clearly and adequately describes how consumer information is collected and used. The privacy policy must fully and accurately disclose Partner’s use of third-party technology, use of cookies, and options for discontinuing use of such cookies. The privacy policy and data protection mechanisms used in support of the policy must comply with all data privacy and protection regulations which apply within the countries where the Partner conducts business.
7. Confidentiality. Partner acknowledges that, during the Term, it may have access to certain non-public and/or proprietary information of the Company, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the Company, whether written or oral, and any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Partner shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the Company’s Confidential Information from disclosure to a third party. Partner shall not use or disclose the Company’s Confidential Information except as expressly permitted under this Agreement or by applicable law. For the avoidance of doubt, Partner may disclose Company’s Confidential Information to its officers, employees, services providers, or advisors solely on a “need to know” basis, and provided that they are bound by similar nondisclosure obligations as those of this Agreement. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the Company. Without derogating from the generality of the foregoing, all information or data contained in or transferred via the Link shall be deemed Confidential Information.
8. Reference Partner. Partner agrees that Company may identify Partner as a participant in the Referral Program and use Partner's trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by Company on Company's website or social media accounts for promotional purposes.
9. LIMITED WARRANTIES.
9.1. THE COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT REGARDING THE AMOUNT THAT THE PARTNER MAY EXPECT TO EARN AT ANY TIME IN CONNECTION WITH THE REFERRAL PROGRAM. THE COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE REFERRAL PROGRAM AND ITS RELATED MATERIALS, ANY OFFERINGS MADE THROUGH THE REFERRAL PROGRAM, OR AS TO THE CONTINUATION OF THE OFFERINGS THROUGH THE REFERRAL PROGRAM. IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THIS AGREEMENT, THE COMPANY DOES NOT WARRANT THAT THE REFERRAL PROGRAM (INCLUDING THE ACCOUNT) WILL INREASE THE PARTNER'S REVENUES OR MEET PARTNER'S REQUIREMENTS, THAT THE COMPANY’S SITE, THE REFERRAL PROGRAM, THE PRODUCTS AND/OR THE ACCOUNT WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR-FREE, FALSE-POSITIVES FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER SOFTWARE LIMITATIONS.
9.2. ALL OFFERS AND ADVERTISEMENTS THROUGH THE REFERRAL PROGRAM SHOULD BE CONSIDERED LIMITED TIME OFFERS. THE RFEFERRAL PROGRAM, THE COMPANY’S SITE, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE ACCURACY, SECURITY, PERFORMANCE OR FUNCTIONALITY OF THE COMPANY’S SITE, THE ACCOUNT, AND/OR THE PRODUCTS (INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE COMPANY’S SITE, THE ACCOUNT, AND/OR THE PRODUCTS WILL BE ERROR OR VIRUS-FREE OR THAT SERVICE WILL BE UNINTERRUPTED) AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT. THE COMPANY’S SITE AND/OR THE PRODUCTS ARE SUBJECT TO CHANGE AT ANY TIME IN COMPANY’S SOLE DISCRETION.
10. LIMITATION OF LIABILITY.
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS LICENSORS, SUPPLIERS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE COMPANY'S, ITS LICENSORS', SUPPLIERS', AFFILIATES' DISTRIBUTORS' AND/OR RESELLERS' TOTAL AGGREGATE LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
11. INDEMNIFICATION.
11.1. Partner shall defend, indemnify, and hold the Company (and its directors, officers, employees, representatives, parents, affiliates and subsidiaries) harmless from and against any and all claims, liabilities, losses, damages, and costs, including reasonable attorney’s fees, resulting from, arising out of, or in any way connected with Partner’s (i) violation of this Agreement or any Policies, (ii) breach or failure to perform its obligations under its PartnerStack agreement; (iii) violation of any applicable law or the unauthorized use of the rights of a third party (including, without limitation, the Marks, the Company’s Site, the Link, or the Referral Program; and/or (iv) breach of any intellectual property, publicity or privacy right of a third party.
12. TERM AND TERMINATION.
12.1. Partner acknowledges and agrees that by submitting its application, which may include clicking acceptance box, the effective date of this Agreement will be the date on which Partner submits its application (or such other date as determined by the Company, provided in any event that the Company consented to Partner’s participation in the Referral Program). The term of this Agreement shall be month-to-month, unless and until either party notifies the other in writing, with seven days advance notice, that such party desires to terminate the Agreement (the “Term”).
12.2. The Company may terminate this Agreement, or suspend your Account immediately, without penalty: (i) in the event that the Partner is in a material breach of this Agreement; (ii) if the Company believes that it may be subject to potential claims or liability related to Partner’s participation in the Referral Program; (iii) if the Company believes that its brand or reputation may be harmed by Partner’s participation in the Referral Program; and/or (iv) if the Partner has engaged in any deceptive, fraudulent or illegal activity in connection with the Referral Program; and/or (v) in the event that Partner becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action to be so declared.
12.3. For purposes of notification of termination, delivery via email is considered a written and immediate from of notification.
12.4. Upon termination or expiration of this Agreement: (i) Company will be irrevocably and unconditionally released from all obligations and liabilities owed to the Partner; (ii) Partner shall immediately return and/or permanently delete (as instructed by the Company) the Confidential Information; (iii) Qualified Sales obtained through the Term shall not constitute a continuation or renewal of this Agreement or a waiver of such termination; (iv) Partner shall not be entitled to Rewards for Qualified Sales delivered after the date of termination; (v) Partner shall be entitled only to unpaid and undisputed Rewards, earned by Partner prior to the date of termination; and (vi) all rights and licensees granted to Partner shall immediately terminate and, as such, Partner will promptly cease all uses of any trade names, trademarks, service marks, logos and other designations of the Company or the Referral Program. For the avoidance of doubt, termination or expiration of this Agreement will not relieve Partner from any liability arising from any breach of this Agreement. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it under applicable law.
13. Miscellaneous. This Agreement represents the complete agreement concerning the subject matter hereof. The Company reserves the right to modify the terms and conditions of this Agreement in its sole discretion at any time, and such changes will be effective immediately upon being posted on the PartnerStack Platform. If any modification is unacceptable to Partner, Partner's sole recourse is to terminate this Agreement. Partner's continued participation in Referral Program after modification to the terms and conditions of this Agreement constitutes Partner’s binding acceptance to the change. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement without the consent of the other in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement shall be governed by and construed under the laws of the State of Israel, without reference to principles and laws relating to the conflict of laws. The competent courts located in Tel-Aviv, Israel, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties.
