Partner Terms & Conditions

This document sets out the terms and conditions between Dotdigital and the Partner, whose details are set out on the applicable Partner Agreement to which these terms and conditions are referenced. These terms and conditions apply in addition to the terms specified in the relevant Partner Agreement and are incorporated therein by reference.

1. Definitions and interpretation

1.1 Definitions

means either (as applicable):

Average Annual Contract Value  (a) the amount agreed to be paid by a Customer to Dotdigital for the Products on the date of signing the Contract, calculated as an average of the total amount to be paid across the entire duration of the Contract term agreed with the Customer; or
(b) if a month-to-month Contract, the total amount actually received by Dotdigital from a Customer 6 (six) months from the Execution of the first monthly Contract;

Confidential Information means any and all confidential information (whether in verbal, written or electronic form), including technical or other information imparted in confidence or disclosed by one party to the other, or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to any person, firm, or organisation associated with that party;

Customer means a Lead who has been successfully referred by the Partner and consequently entered into a Contract;

Contract means an agreement entered into between Dotdigital and a Customer for the supply of the Products;

Dotdigital Marks means any trade mark, branding, goodwill, name, logo, or otherwise, of Dotdigital, whether registered or not and howsoever arising anywhere in the world;

Execution means the date on which a Contract is signed by both Dotdigital and a Customer on unconditional terms;

Fees means the annual fees payable by Dotdigital to Partner under this agreement as set out in the applicable Partner Plan, as may be varied from time to time by Dotdigital;

Force Majeure means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire; flood, natural disaster, or adverse weather conditions. Force Majeure does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;

Intellectual Property Rights means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, rights in Products, domain names and all similar rights and, in each case: whether registered or not including any applications to protect or register such rights and all renewals and extensions of such rights or applications whether vested, contingent or future and wherever existing;

Lead means a prospective consumer of the Products;

Partner Portal means the Lead registration portal at https://dotdigital.com/partners/referral

Partner Program Commission Schedule means the applicable commission fee schedule as set out in the relevant annual Partner Program, as communicated by Dotdigital from time to time;

Products means the Dotdigital omni-channel marketing and demand generation/lead management software solutions owned and developed by Dotdigital and its subsidiaries and any other products or functions developed or added to Dotdigital’s products and services from time to time;

Term means 12 months from the Effective Date, to renew for subsequent 12-month periods unless and until terminated in accordance with the terms of this Agreement;

Terms and Conditions means the standard terms and conditions of Dotdigital set out at https://dotdigital.com/terms/

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1 the singular includes the plural and vice versa;

1.2.2 references to subclauses, clauses or Schedules are to subclauses, clauses or Schedules of this Agreement;

1.2.3 references to this Agreement include its Schedules;

1.2.4 references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

1.2.5 ‘including’ (or similar words) means including without limitation;

1.2.6 clause headings do not affect their interpretation; and

1.2.7 references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.

2. Intellectual Property Rights

2.1

The Partner acknowledges the exclusive right of Dotdigital in and to all Intellectual Property Rights in the Products and all other materials covered by this Agreement. Dotdigital hereby grants the Partner a non-exclusive, non-transferable license to use its IPRs in the Products solely for the purpose intended pursuant to this Agreement.

2.2

The Partner shall not and shall ensure that other third parties (including Customers, where applicable) do not:

2.2.1 modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Products;

2.2.2 sublicense, lease, rent or loan the Products;

2.2.3 transfer the Products to any other third party;

2.2.4 provide the use of the Products in any service bureau, rental or time-sharing arrangement;

2.2.5 reverse engineer, decompile, disassemble or otherwise attempt to device the source code for the Products; or

2.2.6 remove, modify or obscure any identification or proprietary or restrictive rights, marking or notice from the Products.

2.3

The Partner shall, where relevant, submit all of its materials containing Dotdigital Marks to Dotdigital for prior approval. The Partner remains fully responsible for such materials and their content as well as compliance with all laws.

2.4

The Partner may only use the Dotdigital Marks in connection with the Products and always in strict accordance with specifications and directions supplied by or on behalf of Dotdigital. The Partner agrees that the ownership of the Dotdigital Mark and the goodwill relating thereto shall remain vested in Dotdigital and all use thereof by the Partner shall inure to the benefit of Dotdigital.

3. Warranties

3.1

Each party warrants and represents that:

3.1.1 it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder;

3.1.2 the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws;

3.1.3 it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.

3.2

The Partner warrants and represents that:

3.2.1 all services provided by the Partner pursuant to this Agreement shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice; and

3.2.2 it shall cover all of its own expenses incurred pursuant to this Agreement.

3.3

Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.

4. Limits on Liability & Insurance

4.1

Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits; loss of business opportunity; loss of goodwill; loss or corruption of data; loss of anticipated savings; or any special, indirect or consequential loss or damage whatsoever.

4.2

The parties shall not be liable for any loss of profits (whether direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.

4.3

Subject to clauses 4.1. to 4.3 inclusive Dotdigital’s total liability to the Partner in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement, including any indemnity or contribution, shall be limited to the total Fees due or payable under this Agreement during the twelve (12) month period prior to the date on which any such claim arose.

4.4

The parties do not exclude or limit their liability to each other for fraud, death or personal injury caused by any negligent act.

4.5

The Partner shall not raise any claim under this Agreement more than twelve (12) months after:

4.5.1 the discovery of the circumstances giving rise to a claim; or

4.5.2 the effective date of termination or expiry of this Agreement.

4.6 The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.

4.7

The Partner will maintain insurance at a level adequate to cover all of its potential liabilities under this Agreement throughout the Term of the Agreement and shall provide evidence of such insurance at the request of Dotdigital.

5. Termination

5.1

Each party has the right to terminate this Agreement on serving written notice on the other party if:

5.1.1 there is a material breach of this Agreement by a party; or

5.1.2 a party goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in any jurisdiction; or

5.1.3 without cause, by serving 30 (thirty) days’ notice prior to the expiry of the current Term.

5.2

Where applicable, following termination of this Agreement:

5.2.1 the Partner must return all copies of the Products, documents, materials, Customer data, Confidential Information and correspondence with the Customer, whether in electronic form or hardcopy as well as other objects that it has received within the context of this Agreement to Dotdigital. The Partner shall within fourteen (14) days after termination, confirm to Dotdigital that it has fully complied with its duties under this clause 5.2.1;

5.2.2 the Partner shall cease using any Dotdigital Mark in connection with the promotion or advertising of the Products, and shall immediately eliminate from all its literature, business stationery, publications, notices and advertisements all representations of the Partner’s appointment hereunder.

5.2.3 Dotdigital shall not owe any Fees to Partner for Contracts executed following the effective date of termination of this Agreement.

5.3

Notwithstanding termination of this Agreement all confidentiality obligations and any other obligations which by their nature should logically continue to apply, shall survive termination.

6. Privacy & Data Protection

6.1

Both parties shall comply with their respective duties under all relevant and applicable data privacy laws and regulations.

6.2

To the extent that personally identifiable information is processed using the Products, the parties acknowledge that Dotdigital is a data processor and the Partner is a data controller and the parties shall comply with their respective statutory data protection obligations. Dotdigital agrees that it will only process personally identifiable information on behalf of, and in the name of, the Partner.

6.3

The Partner shall ensure that the personally identifiable information, which it supplies or discloses to Dotdigital, has been obtained fairly and lawfully and that it will obtain all necessary consents from persons whose data is being processed and registrations with authorities to permit Dotdigital to transfer personally identifiable information to third parties pursuant to its obligations under this Agreement.

6.4

Dotdigital confirms that it:

6.4.1 will only process personally identifiable information in accordance with the instructions of the data controller; and

6.4.2 has taken, as well as its subcontractors, licensors and hosts, sufficient and appropriate technical and organizational measures to protect against unauthorized or unlawful processing of personally identifiable information and against accidental loss or destruction of, or damage to personally identifiable information, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the personally identifiable information to be protected.

6.5

If a third party alleges infringement of its data protection rights, Dotdigital shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.

7. Confidentiality

7.1

Each party shall keep secret and not to disclose any Confidential Information of the other party (including without limitation the terms of this Agreement) acquired hereunder or in connection herewith except as authorized in writing by the disclosing party and shall keep and shall require its officers, directors, and employees to keep confidential such Confidential Information.

7.2

Nothing contained in this clause 7 shall prevent either party from disclosing Confidential Information:

7.2.1 to any of its employees whose work requires the disclosure of that information;

7.2.2 to any government department or other authority, court or arbitrator having statutory authority or jurisdiction to require the disclosure of that information;

7.2.3 if that information is at the time of disclosure known to the public through no act or default on the part of either party.

7.3

If either party receives a request to disclose Confidential Information, such party shall:

7.3.1 promptly consult with and take into account any comments from the other party prior to making any disclosure; and

7.3.2 work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.

7.4

The obligations in this clause 7 shall continue in effect after the expiration or termination of this Agreement.

8.1

The rights granted to the parties under this Agreement are non-exclusive.

8.2

The Partner shall not be permitted to assign any of the rights, benefits or obligations arising from this Agreement unless Dotdigital gives its prior written approval. Dotdigital shall be entitled to assign any right, benefits or obligations arising from this Agreement to any entity that purchases the shares or assets of Dotdigital as the result of a merger, takeover or similar event.

8.3

This Agreement and its schedules constitute the entire agreement and understanding between the parties and supersede all prior agreements, negotiations and discussions between the parties relating to the subject matter of this Agreement.

8.4

Dotdigital may, in its sole discretion, amend the terms of this Agreement by providing Partner with 30 days’ written notice of the same. Within 30 (thirty) days of receiving such notice, the Partner must notify Dotdigital in writing if it does not accept the changes, otherwise the changes will be deemed accepted. If the Partner gives notice of any objection as aforementioned the parties shall attempt to mutually agree the changes to be made to the Agreement and if the parties cannot agree within 30 (thirty) days of the notice of objection being served, either party may terminate the Agreement by giving the other 90 (ninety) days’ notice in writing.

8.5

This Agreement may only be modified, or any rights under it waived, in a written document executed by both parties.

8.6

Each party acknowledges that it has not entered into this Agreement in reliance on any statement or representation, whether or not made by the other party, except in so far as the representation has been incorporated into this Agreement.

8.7

The Partner’s relationship with Dotdigital during the Term of this Agreement shall be that of an independent contractor. The Partner shall not have, and shall not represent that it has, any power, right or authority to bind Dotdigital, or to assume or create any obligation or responsibility, express or implied, on behalf of Dotdigital.

8.8

Should one or more of the provisions of this Agreement be deemed to be invalid, illegal or unenforceable, the remaining clauses shall remain unaffected. The parties shall then agree to substitute the invalid clause by a clause that is legally and economically as far as possible comparable to the invalid clause.

8.9

Neither party shall be responsible to the other in circumstances where some or all of the obligations under this Agreement cannot be performed due to Force Majeure. However, if such circumstances persist for more than fourteen (14) days, the non-defaulting party may terminate this Agreement and all monies due to Dotdigital up to the date of termination shall become immediately due and payable.

8.10

Both parties agree not to intentionally solicit for employment any of each other’s employees during the term of this Agreement and for a period of twelve (12) months following the termination of this Agreement.

8.11

Notices shall be given in writing and shall be deemed to have been duly given if, sent by registered post, five (5) business days after posting or if by email on the date of sending to the address given for the respective party at the beginning of this Agreement. For notices relating to formal legal proceedings, e-mail is specifically excluded as a method of notice under this clause.

8.12

Nothing contained in this Agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary.

8.13

Each party will pay its own legal, accountancy and other costs arising out of and in connection with this Agreement.

8.14

This Agreement will be governed by and construed in accordance with the laws of the state or country (as applicable) where the Dotdigital entity entering into this Agreement is registered and the courts of that state or country shall have exclusive jurisdiction.