Talitu Agency Partner Program Agreement

Updated: January 24, 2024

PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement governs your participation in Talitu's Agency Partner Program (as defined below) and is a binding legal commitment between Talitu Ltd (“Talitu”) and you or the entity you represent (“you” “You“, or “Partner“). This Agreement takes effect when you are accepted into the Agency Partner Program via email confirmation from Talitu (the “Effective Date“). Talitu and Partner are sometimes referred to individually as a “Party” and collectively as the “Parties.” 

You must read, agree with and accept all of the terms and conditions contained in this Agreement, and as applicable, our Privacy Notice, Acceptable Use Policy,  API Terms of Use and our Partner Data Protection Addendum, before you may participate in the Agency Partner Program. For the avoidance of doubt, as applicable, our Privacy Notice, Acceptable Use Policy, Partner Data Protection Addendum and API Terms of Use form part of this Agreement and are incorporated herein by reference. 

BY CLICKING ON “SUBMIT” BUTTON, AND/OR PARTICIPATING IN OR PERFORMING ANY ACTIVITIES IN FURTHERANCE OF THE AGENCY PARTNER PROGRAM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT THAT IS SEEKING TO PARTICIPATE IN THE AGENCY PARTNER PROGRAM, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT OR UNDERSTAND THIS AGREEMENT, YOU MAY NOT REGISTER FOR OR PARTICIPATE IN THE AGENCY PARTNER PROGRAM OR OTHERWISE ACCESS OR USE ANY OF THE TALITU MATERIALS OR TALITU BRAND FEATURES AND MUST DISCONTINUE ALL USE OF THE TALITU MATERIALS AND ALL ACTIVITIES RELATED TO THE AGENCY PARTNER PROGRAM. 

1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

1.1 “Active Agency Partner” means an agency or services provider who has: (i) agreed to this Agreement, (ii) completed all necessary Agency Partner Program requirements, (iii) is in good standing with Talitu, and (iv) done one of the following: (a) has registered (or on its behalf) a Lead in the Partner Portal, via an affiliate link in the last twelve (12) months, or (b) otherwise provided Agency Partner Services.

1.2 “Account” shall have the meaning set forth in Section 2.2 below.

1.3 “Advisor Track Services” shall have the meaning set forth in Section 3.1.b below.

1.4 “Agency Partner Program” means Talitu's program for agencies, consultants, systems integrators, freelancers and other services providers who offer a variety of services to Talitu Customers and demonstrate expertise in Talitu Products.

1.5 “Agency Partner Services” means any marketing, technical or promotion of Talitu Products or account management services Partner provides directly to or on behalf of sales prospects and/or Talitu Customers in connection with this Agreement.

1.6 “Applicable Laws” means any applicable law, regulation or other government requirements. 

1.7 “Brand Features” means any trademarks, trade names, service marks, logos, designs, and other distinctive brand features of a party that provides such other party in connection with this Agreement. 

1.8 “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally, in writing, or in any other recorded or tangible form, that is marked or otherwise designated as confidential, as well as information that the Receiving Party knows or reasonably should know that the Disclosing Party regards as confidential, including but not limited to any customer or sale prospect information, Customer Data, Talitu Materials, business practices, software, other technical information, future product/services plans, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects and any related documents. 

1.9 “Customer Data” means any and all data, information, programs, and other content provided, uploaded or otherwise transmitted by a Talitu Customer or on a Talitu Customer’s behalf to the Talitu Products, including, without limitation, Personal Data.

1.10 “Enrollment Criteria” shall have the meaning set forth in Section 6.2.a below.

1.11 “Feedback” shall have the meaning set forth in Section 15.4 below. 

1.12 “Fees” means Referral Fees and/or Management Fees, as applicable. 

1.13 “Forfeited Transaction” shall have the meaning set forth in Section 6.1.a below.

1.14 “Intellectual Property Rights” means all intellectual property and proprietary rights now known or hereafter recognized in any jurisdiction, including rights associated with any of the following (i) patents, patent applications, patent disclosures, and inventions and all improvements thereto (whether or not patentable or reduced to practice), (ii) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (iii) copyrights, moral rights and works of authorship (whether or not copyrightable), and (iv) trade secrets, know-how, technologies, software, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications or other proprietary technology, including any data structures therein, accompanying documentation, and any updates or revisions to thereof and other Confidential Information.

1.15 “Talitu Customer” means any individual or entity who has a current paid subscription for any of the available Talitu Products. 

1.16 “Talitu Materials” means any content, marketing materials, technical manuals, or other resources, whether in paper, electronic or other written form relating to the use of describing the Talitu Products for use or enablement in connection with or to fulfill any obligations under this Agreement. 

1.17 “Talitu Partner MDF Guidelines” means the description of qualifying and non-qualifying activities Partner may engage in to receive marketing development funds and outlines the requirements for reimbursement. 

1.18 “Talitu Product or Products” means any of the application or related services provided by Talitu's proprietary cloud-based platform, as detailed on www.talitu.com and/or any other designated websites.

1.19 “Talitu Business Partner Code of Conduct” means Talitu's code containing its requirements, standards of practice and principles of conduct for all business partners and suppliers, available here.

1.20 “Lead” means a sales prospect for Talitu Products, identified by Partner to Talitu via a Lead Registration Application.

1.21 “Lead Registration Application” means the Partner’s submission of a Lead to Talitu initiated in one of the following three ways: (i) Partner registers the Lead in the Partner Portal, (ii) Lead is referred via the Partner’s unique affiliate referral link, (iii) Partner manually submits a Lead via email and is registered on its behalf by a member of the Talitu Partner team; or (iv) Lead list submitted through Talitu Partner marketing and registered on Partner’s behalf.

1.22 “Lead Submission Date” means the date which Partner submits a Lead through the Lead Registration Application. 

1.23 “Management Fees” shall have the meaning set forth in Section 6.1.b below.

1.24 “Management Services” shall have the meaning set forth in Section 3.1.c below. 

1.25 “Master Track Services” shall have the meaning set forth in Section 3.1.c below.

1.26 “MDF” means marketing development funds.

1.27 “MRR” means monthly recurring revenue by a Talitu Customer. 

1.28 “Partner Portal” means the web-based application where Partners may register Leads, access and obtain Talitu Materials and other resources related to the Agency Partner Program,  as provided by Talitu from time to time.

1.29 “Partner Program Benefits” means certain benefits Talitu will provide or make available to Partner as applicable to each of the respective Tiers as further detailed in the Partner Program Guide.

1.30 “Partner Program Guide” means the guide Talitu provides and makes available to Partners that includes all requirements, benefits and any other related details regarding the Agency Partner Program. 

1.31 “Partner Program Track” shall have the meaning set forth in Section 3.1 below.

1.32 “Personal Data” means any information relating to an identified or identifiable individual or device, or is otherwise “personal data,” “personal information,” “personally identifiable information” and similar terms, and such terms shall have the same meaning as defined by applicable data protection laws.

1.33 “Program Credit” means any MRR referred or MRR managed credit that counts towards a Partner’s respective Tier, as further described in the Agency Partner Program Guide.

1.34 “Qualified Referral” means a Lead, which Talitu determines at its reasonable discretion meets the Qualified Referral Requirements, and for which Partner is eligible to receive a Referral Fee and/or Program Credit, as further detailed in Section 5.3 below.  

1.35 “Qualified Referral Requirements” means the following elements required for a Lead to qualify as a Qualified Referral:  (a) the Lead is not already an existing customer of Talitu for that particular Talitu Product line and/or was not involved in discussions with Talitu relating to the purchase of a subscription to Talitu Products as of the Lead Submission Date, (b) Lead has not been attributed to another Talitu Active Agency Partner in the prior ninety (90) days from the Lead Submission Date, and (c) has been converted into an workable opportunity in Talitu's CRM no later than ninety (90) days after the Lead Submission Date for such Lead from Partner. 

1.36 “Referral Fees” shall have the meaning set forth in Section 6.1.a below.

1.37 “Referral Services” means a Partner who recommends Talitu, Talitu Products or related services to actual or potential sales prospects.

1.38 “Registration Data” shall have the meaning set forth in Section 2.2 below.

1.39 “Tier” shall have the meaning set forth in Section 3.2 below.

2. PARTNER PROGRAM ACCEPTANCE.

2.1 Registration and Acceptance. To apply to join the Agency Partner Program, Partner must complete and submit an application, affirmatively accept and acknowledge this Agreement and complete any and all related forms and supporting materials as requested by Talitu. Talitu will review Partner’s application and notify Partner whether Partner has been accepted to participate in the Partner Program via email.

2.2 Account. Upon acceptance, Partner agrees to create an account to the Partner Portal (“Account”) and complete any Enrollment Criteria as set forth in Section 6.2(a). In registering an Account, Partner agrees to: (a) provide true, accurate, current and complete information as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Any Registration Data submitted related to Partner’s email contact information must be specific to such Partner, and cannot be a generic email address (e.g., [email protected]). Partner is responsible for all activities that occur under Partner’s Account. Partner may not share Partner’s Account or password with anyone, and Partner agrees to (x) notify Talitu immediately of any unauthorized use of Partner’s password or any other breach of security by emailing [email protected]; and (y) exit from Partner’s Account at the end of each session. Partner agrees not to create an Account using a false identity or information, or on behalf of someone other than Partner. If Partner provides any information that is untrue, inaccurate, not current or incomplete, or Talitu has reasonable grounds to suspect that any information Partner provides is untrue, inaccurate, not current or incomplete, Talitu has the right to suspend or terminate Partner’s Account and refuse any and all current or future participation in the Agency Partner Program.

2.3 Ongoing. Partner hereby agrees to be responsible for reviewing the Partner Program Guide and any other related policies regularly to maintain compliance as part of its continued participation in the Agency Partner Program. For the avoidance of doubt, Talitu may update the Partner Program Guide from time to time. 

3. DESCRIPTION OF SERVICES.

3.1 Partner Program Tracks. The Agency Partner Program consists of three different tracks: the Influencer Track, the Advisor Track and the Master Track (each, a “Partner Program Track”). Talitu shall designate Partner’s applicable Partner Program Track in Talitu's notification of acceptance into the Agency Partner Program via email or in the Partner Portal. Each Partner Program Track, will, at a minimum, include the Referral Services, but may include additional marketing and other related services as specified herein. All Partner Program Tracks are eligible to receive Referral Fees.

　3.1.a. Influencer Track. If Partner is designated as an Influencer Partner, Partner shall provide the Referral Services in accordance with this Agreement.

　3.1.b. Advisor Track. If Partner is designated as an Advisor Partner, such Partner shall provide: (a) the Referral Services; and (b) certain Agency Partner Services related to the Talitu Products as may be further described in the Partner Portal (together with the Referral Services, the “Advisor Track Services”).

　3.1.c. Master Track. Master Track. If Partner is designated as a Master Partner, Partner shall provide (a) the Referral Services; (b) the Agency Partner Services; and (c) certain customer support and maintenance services relating to the management of the Talitu Products for Talitu Customers (the “Management Services”), including but not limited to creating and executing marketing campaigns and services (collectively, the “Customer Services,” and together with the Referral Services and the applicable Agency Partner Services, the “Master Track Services”). Master Partner will be responsible for all functions relating to performance of the Customer Services, and Talitu shall have no obligation to provide any Customer Services or have any liability under any agreement that Partner may enter into with any Talitu Customer with respect to the Customer Services.

3.2 Tiers. In addition to the applicable Referral Fees and applicable Management Fees, Talitu may offer certain benefits to Partner based on the level of Partner’s participation in the applicable Partner Program Track and certain qualifying criteria, as further described in the Partner Portal or the Partner Program Guide (each such level, a “Tier”). Talitu may, in its sole discretion, change the benefits available, and qualifying criteria for each Tier upon written notice to Partner. Partner’s Tier shall be reviewed at least twice a year to determine Tier eligibility, and Talitu reserves the right to raise or lower Partner’s Tier based on the Agency Partner Program requirements. 

3.3 Training. Talitu may require that Partner complete mandatory training and/or product certificates prior to the commencement of providing any Agency Partner Services or payment of Fees, including but not limited to: (a) sales training focused on the marketing and promotion of Talitu Products, and (b) solely in the case of Master Partners, training focused on the management and support of Talitu Customers. Talitu may offer additional training to Partners at an additional fee. Talitu may change or update its training requirements or any such training it provides from time to time at Talitu's sole discretion.

3.4 Quarterly Meetings. At the request of Talitu, Partner agrees to meet, either in person or virtually, no less frequently than once every calendar quarter to discuss the status of the relationship contemplated herein.

4. COMPLIANCE.

4.1 Compliance with Applicable Laws. In connection with the terms and conditions of this Agreement, Partner shall comply, and shall ensure its employees, officers, directors, and any third parties performing activities on Partner’s behalf comply: (i) with all Applicable Laws and (ii) shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Talitu, Talitu Customers, the Talitu Products, or to the public. Talitu shall comply with Applicable Laws that are applicable to Talitu generally (i.e., without regard to Partner’s and/or any Talitu Customer’s particular use of the Talitu Products or Agency Partner Services) in its performance of its obligations hereunder. 

4.2 Competing Products. During the term of this Agreement, Partner shall promptly inform Talitu of Partner’s promotion, marketing, or distribution of any product or service offering similar functionality to any Talitu Product; provided, however, that the foregoing shall not limit Partner’s ability to promote, market, or distribute any such products or services.

4.3 Business Practices. In accordance with the Talitu Business Partner Code of Conduct, Partner shall: (a) conduct its business under this Agreement in a manner that reflects favorably upon Talitu, Talitu Products, and Talitu's goodwill and reputation, (b) not engage in illegal, deceptive, misleading, or unethical trade practices, (c) not, and shall not permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, representatives, or agents to, promise, authorize, or make any payment, or otherwise contribute any item of value, directly or indirectly, to any third party, including any non-U.S. official, in each case, in violation of the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law, and (d) warrants that it will conduct business in accordance with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders. 

4.4 Export Compliance. Talitu and Partner each represent that it is not named on any U.S. government denied-parties list. Neither party will access or use any Agency Partner Services, Partner Program Benefits or Confidential Information provided to it hereunder in a U.S. embargoed country or region or in violation of any U.S. export law or governmental regulation. 

4.5 Disclosure of Third Parties. Partner must notify Talitu in advance (email being sufficient) if Partner plans to use any third party subcontractor, consultant, agent, or other intermediary to assist in the sale of Talitu Products and any related services under this Agreement. For the avoidance of doubt, Talitu will have the authority to accept or reject any proposed third party in its sole discretion.

5. REFERRAL AND MANAGEMENT SERVICES.

5.1 Scope of Authority. With respect to any Referral Services, Partner’s sole authority shall be to: (a) market and promote Talitu Products as set forth in this Agreement, and (b) provide Leads to Talitu. The Parties agree that Talitu will directly enter into agreements with Talitu Customers for the provision of Talitu Products to such Talitu Customers. 

5.2 Restrictions. Partner shall not (a) sell, resell, distribute, license or sublicense the Talitu Products directly to any Leads; (b) make any false or misleading statements concerning the Talitu Products; (c) make any commitments, warranties or guarantees with respect to the Talitu Products, the pricing thereof, or Partner’s relationship with Talitu; or (d) distribute any unsolicited bulk emails (spam) mentioning or referring to Talitu or the Talitu Products.

5.3 Lead Process.

　5.3.a. Identification of Leads; Marketing and Promotion. During the term of this Agreement, Partner shall use commercially reasonable efforts to identify specific Leads and market and promote Talitu Products to such potential Leads. In the course of performing its obligations under this Section 5.3, Partner may provide potential Leads with the Talitu Materials as supplied to Partner by Talitu. Partner is responsible for managing any Leads submitted to Talitu.

　5.3.b. Lead Registration. Talitu will review Leads submitted by Partner through the Lead Registration Application to determine in its reasonable discretion as to whether the Lead meets the Qualified Referral Requirements.  Talitu will notify Partner through the Partner Portal or via email whether Talitu accepts or rejects a Lead as a Qualified Referral.  If a Lead Registration Application is not accepted or rejected within ninety (90) days of the Lead Submission Date, Partner will need to re-submit the Lead Registration Application for the Lead to be considered. If Talitu rejects a Lead, Partner will immediately cease all Referral Services with respect to such Lead.  

　5.3.c. Qualified Referral.  For  each Lead accepted as a Qualified Referral, Partner, at Talitu's request, shall meet with Talitu to discuss each Qualified Referral in reasonable detail, and will assist Talitu in making contact with the Qualified Referral by arranging an introduction, meeting, conference call, or other means of communication between Talitu and the Qualified Referral.  

A Partner will be notified via email when the opportunity is: (i) closed/won and the Qualified Referral converts to a paying Talitu Customer for which Partner is eligible to receive Referral Fees, or (ii) if the opportunity with the Qualified Referral is closed/lost and the opportunity ceases to be a Qualified Referral. For the avoidance of doubt, Talitu may choose to reject a Qualified Referral with reasonable discretion. Qualified Referrals will be considered for Program Credit at Talitu's sole discretion. 

5.4 Warranties to Third Parties. Except in the course of delivering the Talitu Materials as specifically permitted herein, Partner shall not provide any representations or warranties to any Leads or any other third party with respect to the Talitu Products.

6. FEES; PAYMENT.

6.1 Fees.

　6.1a. Referral Fees. Partner becomes eligible to receive certain fees upon conversion of any Qualified Referrals into paying Talitu Customers with a paid subscription for one or multiple Talitu Products (the “Referral Fees”). Referral Fees are calculated as set forth in Section 6.3 below based on the subscription fees Talitu actually receives for each eligible Talitu Product(s), net of any discounts, taxes payable and subsequent refunds and the Partner’s Tier on the date Lead Registration Application is accepted as a Qualified Referral. Notwithstanding the foregoing, Qualified Referrals will be considered for Program Credit at our discretion.

　6.1.b. Master Partner Fees. Subject to the terms of this Agreement and if applicable, in addition to the Referral Fees, Partners who qualify as Master Partners, are eligible to receive a fee in connection with the management of Talitu Customer accounts as identified in the Partner Portal (“Management Fees”).  Management Fees are calculated as set forth in Section 6.3 below based on the subscription fees Talitu actually received from the respective Talitu Customer for each eligible Talitu Product(s), net of any discounts, taxes payable and subsequent refunds and the Partner’s Tier on the date of the Lead Registration Application is accepted as a Qualified Referral. In order for Partner to receive any Management Fees for a particular Talitu Customer, Partner must submit the unique customer ID associated with such Talitu Customer in the Partner Portal and the Talitu Customer must confirm to Talitu in writing that Partner provides it with the Master Track Services. The eligible payout amount for any applicable Management Fees are calculated by taking the total amount of Talitu Customers successfully completed subscription payments in period, multiplied by a Partner’s respective Tier rate and divided by twelve (12) months. During the Term, Master Partners are eligible to continue to receive Management Fees so long as such Talitu Customer has a current active paid subscription for one or more Talitu Products and providing Master Track Services to such Talitu Customer.

　6.1.c. For the avoidance of doubt, Partner is solely responsible for remitting all taxes associated with any and all Fees paid to it under this Agreement. Partners may opt to forgo any eligible Fees by communicating in writing to Talitu, which will then be confirmed to Partner via email by Talitu. For the avoidance of doubt, Partners will still be eligible to receive Program Credit to contribute to their ongoing Tier evaluation as part of their participation in the Agency Partner Program. Any disputes related to any Fees hereunder must be submitted in writing to Talitu within sixty (60) days of release of payment with reasonable details describing the dispute. 

6.2 Requirements for Payment; Forfeiture.

　6.2.a. In order to receive the applicable Fees under this Agreement, Partner must have: (i) agreed to the terms of this Agreement (by checking the box when submitting an Agency Partner Program application and clicking on the “Submit” button); (ii) completed all information in Talitu's account information form located in the Partner Portal following acceptance into the Agency Partner Program; and (iii) submitted to Talitu the required tax documents, banking account and any related information to process payments (collectively, the “Enrollment Criteria”). Talitu will pay Partner the Fees in U.S. dollars to the banking account as indicated by Partner via the Agency Partner Program registration process.  

　6.2.b. Notwithstanding the foregoing or anything to the contrary in this Agreement, if Talitu is unable to make a payment as a result of inaccurate or missing Enrollment Criteria provided by Partner and Partner fails to correct such payment information for three (3) months following Talitu's first initial attempt to pay, Partner acknowledges and agrees that it forfeits any and all rights to receive any applicable Fees owed to Partner (each, a “Forfeited Transaction”). Talitu will have no obligation to pay Partner any Fees associated with a Forfeited Transaction. For the avoidance of doubt, Talitu reserves the right to withhold payment of any applicable Fees until such amount exceeds $200. If any balances remain outstanding for any Fees at the end of each calendar year, Talitu agrees to pay out the total balance of the Fees due to Partner. Talitu shall be eligible for the reimbursement of any fees or penalties incurred from trying to complete payment for any Fees due to a Partner. 

6.3. Payment for Partner Program Tracks.

　6.3.a.  Influencer Track. Talitu shall pay to a Partner classified as an “Influencer Partner”, a percentage of such converted Qualified Referral’s monthly subscription fees during a (4)-month period, to be paid within forty-five (45) days after the end of each calendar quarter (the “One-Time Referral Fee”). In the event that the Qualified Referral cancels its subscription to the Talitu Products within the first four (4) months, Influencer Partner shall not be entitled to the One-Time Referral Fee.

　6.3.b.  Advisor Track. Talitu shall pay to a Partner classified as an “Advisor Partner”, any Referral Fees based on a percentage for their respective Tier of any converted Qualified Referral’s monthly subscription fees to the Talitu Products for the applicable referral calculation period, to be paid within forty-five (45) days after the end of each calendar quarter.

　6.3.c.  Master Track. Talitu shall pay to a Partner classified as a “Master Partner”: (i) Referral Fees based on a percentage for their respective Tier of any converted Qualified Referral’s monthly subscription fees for the Talitu Products for the applicable referral calculation period, to be paid within forty-five (45) days after the end of each calendar quarter; and if applicable (ii) Management Fees based on an annualized percentage of Talitu Customer payments received for all accounts actively managed by Partner. The payout percentage for each Management Fee a Masters Partner is eligible to receive, is determined by such Master Partner’s respective Tier status at the time of payment to Partner. 

　6.3.d.  The percentages referred to in this Section 6.3 will be reflected in Partner’s Account in the Partner Portal. Other payment process details are set forth and described in the Partner Portal. Talitu reserves the right to modify the Fees or the payment terms at any time upon reasonable prior notice to Partner. Such notice will be provided by email or posting a notice on the Partner Portal. In the event of any disputes over Fees, Talitu's determination will be final and binding.

6.4 Exclusions for Payment. Notwithstanding any other provisions of this Agreement, Partner will not be entitled to any Fees or any other compensation on any subscription of a Talitu Product if: (a) such compensation is disallowed or limited by Applicable Laws; and/or (b) such applicable Talitu Customers are not in good standing on their accounts.

7. INTELLECTUAL PROPERTY LICENSES AND OWNERSHIP. 

7.1 Brand Features. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, each Party grants to the other Party a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Brand Features to perform its obligations under this Agreement. The use of all Brand Features, including placement and sizing, shall be subject to such Party’s then-current trademark use guidelines made available to the other Party. Except for the right to use the Brand Features as set forth above, nothing contained in this Agreement shall be construed to grant to the licensee any right, title or interest in or to the Brand Features, and all right, title, and interest in and to the Brand Features shall be retained by such Party. Any additional goodwill associated with the Brand Features created as a result of this Agreement and through the licensee party’s use will insure solely to the benefit of the licensor party.

7.2 Talitu Materials. During the term of this Agreement, Talitu may make available to Partner certain Talitu Materials. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Talitu grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to distribute the Talitu Materials exactly as provided to Partner by Talitu to perform Partner’s obligations under this Agreement.

7.3 Ownership. As between Partner and Talitu, Talitu retains all right, title, and interest in and to (a) its Brand Features, (b) the Talitu Products, (c) the Talitu Materials, and (d) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under this Agreement.

8. CO-MARKETING, APPROVALS AND MDF ELIGIBILITY.

8.1 Co-Marketing. During the term of this Agreement, the Parties may collaborate to undertake certain marketing activities to promote each other using each other’s Brand Features. The Parties from time to time, will agree upon the scope and other details of each campaign or activity, including the development and creation of any artwork, advertising copy or other copyrightable materials (hereafter, the “Content”). Each Party will be responsible for delivering any assets necessary to create and design the Content mutually agreed to by the Parties. Further, each Party will cooperate with the other in delivering their respective Content in accordance with the mutually agreed upon delivery schedule and specifications. 

8.2 MDF Eligibility. In connection with Partner’s participation in the Agency Partner Program, Partner may be eligible to MDF that Talitu makes available from time-to-time and as further described in the Partner Program Guide. Partner agrees to use its best efforts to carry out any related pre-approved campaigns or activities approved for MDF by Talitu to promote and strengthen the reputation of Talitu and the Talitu Products in the market. For the avoidance of doubt, MDF will only be distributed once Partner completes all the specified requirements provided by Talitu to Partner and otherwise in the Talitu Partner MDF Guidelines. For the avoidance of doubt, MDF will only be paid out as a reimbursement following completion of the approved MDF activity. Any amounts not used for pre-approved MDF activities by Partner may be recouped by Talitu.  

9. DATA PRIVACY.

9.1 The Parties will provide all notices and obtain all required consents under applicable law in connection with its respective collection, use and sharing of any Personal Data in accordance with the purpose so authorized and in connection with its respective services and with this Agreement, as applicable. The parties will collect, use, process and disclose personal data in accordance with Applicable Laws and the Privacy Policy. Each Party will implement and maintain technical and organizational measures for its respective service designed to protect personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data. 

10. REPRESENTATIONS AND WARRANTIES.

10.1 Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach any other agreement to which it is a party or is otherwise bound; and (c) it has the full right, power and authority to grant the licenses to the other Party’s Brand Features. 

10.2 Partner Representations and Warranties. Partner represents and warrants that: (i) it will be solely responsible for all acts, omissions, and activities of any representatives including statements and representations regarding Talitu Products and compliance with the terms of this Agreement; (ii) it will not engage in any deceptive, misleading, illegal or unethical marketing activities (including without limitation any applicable advertising activities, marketing content and communications) or other actions that may be detrimental to Talitu in compliance with all Applicable Laws; and (iii) it has all the sufficient rights and permissions to provide the prospect data to Talitu for Talitu's use in sales and marketing efforts or as otherwise set forth herein.  

10.3 General Disclaimers. EACH OF TALITU AND PARTNER ACKNOWLEDGE AND AGREES THAT, IN ENTERING INTO THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY WARRANTIES, EXPRESS OR IMPLIED, AND THAT NEITHER PARTY HAS MADE ANY REPRESENTATIONS, ASSURANCES, OR PROMISES THAT TALITU WILL RECEIVE ANY NEW REFERRED CUSTOMERS OR NEW BUSINESS OR THAT PARTNER WILL RECEIVE ANY FEES AS A RESULT OF THIS AGREEMENT. TALITU DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS OR COMPLETENESS OF THE TALITU  PRODUCTS, WHICH ARE PROVIDED AS-IS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO OTHER PRODUCTS OR SERVICES PROVIDED TO PARTNER BY TALITU. WITHOUT LIMITING THE GENERALITY OF FOREGOING, TALITU DOES NOT WARRANT THAT THE TALITU PRODUCTS WILL MEET ALL CUSTOMER REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. 

11. CONFIDENTIALITY.

11.1 Confidentiality. During the term of this Agreement, the Disclosing Party may provide the Receiving Party with Confidential Information. Each Party shall maintain in confidence all Confidential Information disclosed to it by the other Party and agree not to disclose or otherwise make such Confidential Information available to any third party except as expressly authorized by this Agreement and shall not use such Confidential Information for any purpose outside the scope of this Agreement. The Receiving Party shall not disclose any Confidential Information to any third party, other than to its and its affiliates’ directors, officers, employees, agents and representatives (collectively, a Party’s “Representatives”) who are required to have such information in connection with the scope of this Agreement and who are under confidentiality obligations no less protective of the Confidential Information that as set forth herein. Each Party shall use at least the same standard of care as it uses to protect its own confidential information of a similar nature (and in no event less than a commercially reasonable care) to ensure that such Representatives do not disclose or make any unauthorized use of such Confidential Information. The Receiving Party shall be responsible for any breach by any of its Representatives of any provision hereof. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section 11 shall survive any termination or expiration of this Agreement for a period of three (3) years thereafter; provided that the Receiving Party shall safeguard all Confidential Information that is a trade secret as required by this Agreement in perpetuity or for so long as such information remains a trade secret under Applicable Laws. 

11.2 Exceptions. The obligations of confidentiality contained in Section 11.1 shall not apply to the extent that it can be established by the Receiving Party by competent proof that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or was otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or (e) was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information, as proven by clear and convincing evidence.

11.3 Authorized Disclosure. Notwithstanding any provision to the contrary herein, the Receiving Party may disclose Confidential Information to the extent required by law or any governmental authority, provided, that, such Receiving Party shall to the extent practicable use commercially reasonable efforts to assist the Disclosing Party in securing confidential treatment of such Confidential Information required to be disclosed. Prior to disclosing any Confidential Information under this Section 11.3, if legally permissible the Receiving Party shall take reasonable steps to give the Disclosing Party sufficient notice of the disclosure request in order for such Disclosing Party to contest the disclosure request.

11.4 Securities Law Compliance. Partner hereby acknowledges that it understands that: (a) Confidential Information may contain or constitute material nonpublic information concerning Talitu and its affiliates; and (b) trading in Talitu's securities while in possession of material nonpublic information or communicating that information to any other person who trades in such securities could subject Service Provider to liability under the U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder.  Partner agrees that it will not trade in Talitu's securities while in possession of material nonpublic information or at all until Partner can do so in compliance with all applicable laws and without breach of this Agreement.  For purposes of this Section 11.4, Partner includes all personnel, employees, agents, and consultants of Partner. 

12. INDEMNIFICATION.

12.1 By Talitu. Talitu will defend at its expense any suit brought against Partner and will pay any settlement Talitu makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging the Talitu Brand Features, in the absence of any modifications by Partner thereto, infringes or misappropriate any trademark of any third party.

12.2 By Partner. Partner will indemnify, defend, and hold Talitu, its officers, directors, affiliates, subsidiaries, licensors, service providers, licensors, agents and employees (each a “Talitu Party”) harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to a third-party claim: (a) Partner’s breach of its obligations or noncompliance under this Agreement; (b) a claim by any third party alleging the Partner Brand Features, in the absence of any modifications by Partner thereto, infringe or misappropriate any trademark of any third party; or (c) the use, transmission, access, disclosure, or other processing of Customer Data or our use of the Leads provided to Talitu by Partner.

12.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

13. LIMITATION OF LIABILITY.

13.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT IN CONNECTION WITH BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, (A) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL TALITU, ITS SUCCESSORS OR ASSIGNS, BE LIABLE TO PARTNER UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, PROCUREMENT OF GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE UNDER THIS AGREEMENT EXCEED THE GREATER OF THE TOTAL AMOUNT OF ACTUAL FEES ACTUALLY PAID TO PARTNER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

13.2 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 13 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the Agreement entered into in reliance upon these limitations of liability and that such limitations form an essential basis of the bargain between the Parties. 

14. TERM; TERMINATION.

14.1 Term. The term of this Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 14. This Agreement shall renew automatically for additional one (1) year terms unless one Party provides the other written notice no later than thirty (30) days prior to the expiration of the then-current term of the Agreement of its intention to allow the Agreement to expire at the end of such term.

14.2 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. In addition,Talitu may terminate this Agreement for convenience upon thirty (30) days’ prior written notice.Either Party may terminate this Agreement immediately with prior written notice in the event that the other Party becomes the subject of a petition in bankruptcy, or any other proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors.

14.3 Termination for Convenience. Talitu may terminate this Agreement for convenience upon thirty (30) days’ written notice.

14.4 Effect of Termination. Upon any termination or expiration of this Agreement, for any reason, Partner shall: (a) refrain thereafter from representing itself as a marketer of Talitu Products, (b) immediately cease all use of any Talitu Brand Features and Talitu Materials, (c) each Party shall comply with the obligations to return or destroy all Confidential Information of the other, as set forth in Section 10.1, and (d) all rights and obligations of both Parties, including all licenses granted hereunder shall terminate immediately. 

14.5 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions),  7 (Intellectual Property Licenses and Ownership), 10 (Representations and Warranties), 11 (Confidentiality), 12 (Indemnities), 13 (Limitation of Liability), 14.4 (Effect of Termination), 14.5 (Survival), and 15 (Miscellaneous).

15. MISCELLANEOUS.

15.1 Relationship of the Parties. Each Party’s relationship to the other Party is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

15.2 Assignment. Partner shall not assign or transfer this Agreement, in whole or in part, whether by operation of law, change of control, or otherwise, or delegate any of its obligations hereunder, without the prior express written consent of Talitu. This Agreement shall inure to the benefit of each Party’s permitted successors and assigns.

15.3 Non-exclusivity. This Agreement does not create an exclusive agreement between Talitu and Partner. Both parties 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.

15.4 Feedback. In the event that Partner or its authorized users provide any comments or suggestions in connection with the Talitu Products or the Agency Partner Program, whether written or oral (collectively, the “Feedback”), Talitu, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Partner. Partner hereby grants Talitu, on behalf of itself and its authorized users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Talitu Products. 

15.5 Governing Law; Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Each Party irrevocably consents to the exclusive personal jurisdiction of the state or federal courts located in Boston, Massachusetts for any matter arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

15.6 Notices. Except as set forth herein, all notices and other communications hereunder shall be in writing and shall be deemed delivered by email (i) if to Partner, at the email address provided by Partner it its account in the Partner Portal, and (ii) if to Talitu, at the following email address: [email protected]. Partner is responsible for providing Talitu with its most current email address.  In the event that the last email address Partner provided to Talitu is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Talitu's dispatch of the email containing such notice will nonetheless constitute effective notice. Notice shall be deemed to have been duly given on the first business day following successful e-mail transmission to Talitu.

15.7 Amendment. Talitu may update the terms of this Agreement from time to time, in which case the updated Agreement will supersede all prior versions. Talitu will notify Partner of such changes either via email or via the Partner Portal. The updated Agreement will become effective and binding on the next business day after it is posted to the Talitu website. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above.

15.8 Waiver. No provision of the Agreement unless such provision otherwise provides shall be waived by any act, omission, or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party.

15.9 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

15.10 Construction. As used in this Agreement, the singular shall include the plural and vice versa, and the terms “include” and “including” shall be deemed to be immediately followed by the phrase “without limitation.” The captions and headings in this Agreement are inserted for convenience and reference only and in no way define or limit the scope or content of this Agreement and shall not affect the interpretation of its provisions.

15.11 Entire Agreement. The Agreement, as well as the Partner Data Protection Addendum and API Terms of Use, which are incorporated herein by reference, constitute and contain the exclusive understanding and agreement of the Parties and supersedes all prior discussions, whether oral or written, between the Parties respecting the subject matter thereof. For clarity, Partner acknowledges and agrees that our Acceptable Use Policy separately applies to a Talitu Customer’s use of the Talitu Products. 

If you have any questions or concerns about what has been stated in this Agreement, please contact us at [email protected].

Previous version:
July 20, 2020