Last Updated: 30 March, 2022
COUNTABLE REFERRAL TERMS AND CONDITIONS
These Referral Terms and Conditions (“Terms” or this “Agreement”) govern the ability of referrers (each, a “Referrer”) to receive commissions for successfully referring users to Countable Inc. (“Countable”)’s software, which may refer to either the paid version of the Software or the 30 day free trial (the “Free Trial”), as the case may be (the “Software”). This Agreement is deemed to be accepted once a Referrer participates in the referral program that is subject to the terms of this Agreement (“Referral Program”). Both a Referrer and Countable shall each be referred to as a “Party”, or “Parties” collectively.
For the purposes of this Agreement, a person or company that the Referrer registers as a potential user of the Software through the PartnerStack software portal (“Partner Portal”) using the registration processes and procedures prescribed by Countable in its discretion from time to time shall be referred to as a “Registered Prospect”.
1. REFERRAL PROGRAM – REFERRAL FEE TERMS AND CONDITIONS
1.1. Referral Fees on Qualifying Transactions. Subject to the terms of this Agreement, Countable agrees to pay the Referrer a referral fee (the “Referral Fee”) on each qualifying transaction, which is defined to mean a transaction between Countable and a Registered Prospect for (a) the licensing of a Free Trial of the Software, (b) the purchase of one or more subscriptions or licenses to use the Software, and (c) the purchase of one or more additional subscriptions or licenses within twelve (12) months after the first qualifying transaction with the Registered Prospect (each a “Qualifying Transaction”). For greater certainty, where a subscription to the Software is purchased by a Registered User, such transactions will not be deemed to be a Qualifying Transaction until the Subscription Fees are paid in full, and sales of licenses to any other software, support or professional services shall not be considered a Qualifying Transaction.
1.2. Amount of Referral Fees. Where a Registered Prospect registers for a Free Trial via the Referral Program, Countable agrees to pay a Referral Fee in the amount of $100 per Qualifying Transaction, payable one month after the sign up date. Where a Registered Prospect purchases a subscription for the Software via the Referral Program, Countable agrees to pay a Referral Fee in the amount of $400 per Qualifying Transaction, payable two months after the paid subscription date. Where a Registered Prospect purchases a subscription of the Software via the Referral Program, the Referral Fee will not be payable unless and until Countable actually receives payment of the full amount of the fees in respect of a Qualifying Transaction payable to Countable by a Registered Prospect, not including any taxes or any shipping, handling or other charges, and net of all deductions for discounts, refunds, returns, rebates and charge backs (the “Subscription Fees”).
1.3. Reduction of Subscription Fees. If the Subscription Fees paid in respect of a Qualifying Transaction are reduced or eliminated, whether as a result of a discount, refund, return, rebate, charge back or for any other reason in Countable’s discretion, the Referral Fee in respect of the Subscription Fees will be adjusted accordingly. Countable does not represent, warrant, or guarantee, and is not required to pay, any minimum amount of Referral Fees to a Referrer.
1.4. Reports. Reports of all accrued Referral Fees will be made available on the Partner Platform (each a “Report”). Within thirty (30) days after the end of each month or such other periods as agreed by the Parties from time to time (each a “Reporting Period”), Countable will review the particulars of each Report to ensure that it satisfies the criteria to be qualified as a Qualifying Transaction.
1.5. Payment of Referral Fees. After Countable receives a Report and confirms that a reported transaction is a Qualifying Transaction, Countable shall pay the Referrer all applicable Referral Fees via the Platform, less all withholdings and deductions required by applicable law or authorized under this Agreement.
1.6. Taxes and Withholdings. All taxes and government charges, including any penalties and interest, assessed or imposed by any jurisdiction (“Taxes”) will be borne by the Referrer and Countable will withhold such payments as required by law.
1.7. No Other Remuneration. Referral Fees (if any) are full and complete compensation for referrals by a Referrer and the Referrer’s performance of its obligations under this Agreement. Except for Referral Fees, the Referrer is not entitled to any other fees, commissions or other remuneration or reimbursements arising from, connected with, or relating to this Agreement, the Referral Program, referrals of Registered Prospects, Qualifying Transactions or any other transactions between Countable and Registered Prospects or any other person.
1.8. No Obligation to Provide Support. Countable shall have no obligation to provide the Referrer with technical and/or sales support or training.
2. REFERRAL PROGRAM – REGISTERED PROSPECTS/QUALIFYING TRANSACTIONS
2.1. Disqualified Registered Prospects:
(a) Registration Date. For the purposes of this section, registration date shall refer to the date on which the Referrer first registers or attempts to register a person as a Registered Prospect on the Partner Portal, using the processes and procedures prescribed by Countable in its discretion from time to time.
(b) Automatic Disqualification. The following persons are automatically disqualified from being Registered Prospects: (i) persons who have been previously registered as Registered Prospects by a Referrer; (ii) persons who have been referred to Countable as prospects or potential customers by Countable’s partners, referral partners, resellers or affiliates with whom Countable has had direct communications within 180 days before the applicable Registration Date; (iii) persons with whom Countable has had direct communications within 180 days before the applicable Registration Date; (iv) persons who have used the Software within 180 days before the applicable Registration Date; and (v) the Referrer or any of its past, present and future directors, officers, employees, agents, and other representatives (“Representatives”).
(c) Disqualification for Delay. Unless the Parties otherwise expressly agree in writing, a Registered Prospect that fails to complete a Qualifying Transaction within one hundred and eighty (180) days after the Registered Prospect’s Registration Date will be automatically disqualified.
(d) Disqualification for Breach. Countable may disqualify a Registered Prospect effective immediately upon notice to the Referrer if the Referrer fails to fulfill its obligations regarding the Registered Prospect pursuant to paragraph 2.4 and has not remedied the breach within fifteen (15) days after receipt of a notice from Countable identifying the breach and stating Countable’s intention to disqualify the Registered Prospect if the breach is not remedied within fifteen (15) days.
2.2. Disqualified Transactions. Notwithstanding any other provision of this Agreement, Qualifying Transactions do not include: (a) transactions that occur or are completed after the Term; (b) transactions with a Registered Prospect that occur or are completed more than six (6) months after the Registered Prospect’s Registration Date; (c) transactions with a Registered Prospect that is or has been disqualified pursuant to paragraph 2.1.
2.3. Excluded Payments. Notwithstanding any other provision of this Agreement, the Subscription Fees for a Qualifying Transaction do not include any payments received by Countable after the initial term of such a subscription or in respect of products and services other than licenses for the Software for the initial twelve (12) months of each of those licenses.
2.4. Referrer Obligations.
2.4.1. Reasonable Assistance. Upon request by Countable, the Referrer will reasonably assist Countable to negotiate Qualifying Transactions with Registered Prospects, including introducing Countable to the Registered Prospects’ key stakeholders and participating in meetings (by telephone or videoconference) with those key stakeholders and other persons.
2.4.2. Compliance with Laws. The Referrer will at all times comply with all applicable laws and regulations (including laws regarding anti-spam, personal information protection, data privacy, export controls, consumer protection, business practices and advertising) relating to the Referrer and the conduct of its business and the performance of its obligations under this Agreement. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, under no circumstances whatsoever will the Referrer use any unsolicited e-mail, faxes or other communications or other forms of spam to directly or indirectly reference, advertise, market or promote the Software.
2.4.3. Standard of Conduct. The Referrer will at all times perform its obligations under this Agreement and otherwise conduct itself in a lawful, ethical, fair, competent and professional manner and in accordance with the highest standards of the industry, and will not by way of any action, inaction, statement or omission negatively impact the reputation or customer goodwill of Countable.
2.4.4. Accurate Information/No Representation. The Referrer will provide Registered Prospects and potential Registered Prospects with accurate information regarding the Software. The Referrer will not alter or modify any Countable materials, the Countable End-User License Agreement (“EULA”) or other marketing materials provided or approved by Countable in connection with the Software. The Referrer will not make or give any representations, warranties, conditions, promises, claims, or instructions about the Software or the use thereof to any person except for those representations and warranties expressly set forth in the EULA.
2.4.5. No Gifts. The Referrer will not offer or promise to pay any money, gift or any other thing of value to any person for the purpose of influencing actions or decisions regarding purchases or any matters arising from, connected with, or relating to this Agreement or the Referrer’s performance of its obligations under this Agreement.
2.4.6. Subcontractors. The Referrer will not subcontract the whole or any part of its rights or obligations under this Agreement without Countable’s express prior written consent, which consent may be withheld in Countable’s sole discretion. If Countable consents to the Referrer subcontracting part of its rights or obligations under this Agreement: (a) the Referrer will remain responsible for the performance of all of its obligations under this Agreement; (b) the Referrer will be solely responsible for all fees and expenses payable to the subcontractors; (c) the Referrer will be fully responsible and liable for, and bear any and all risks relating to, all conduct, acts or omissions by or on behalf of the subcontractors and their personnel; and (d) the Referrer will ensure that the subcontractors fully comply with all of the Referrer’s obligations under this Agreement.
2.5. General. Notwithstanding any other provision of this Agreement: (a) Countable may in its discretion from time to time change or cease licensing the Software, without any notice or liability to the Referrer; (b) Countable will, in its discretion, establish and change from time to time the fees and charges (including discounts) relating to Qualifying Transactions, without any notice or liability to the Referrer; (c) Countable is solely responsible for the processing and fulfillment of all orders for Qualifying Transactions; (d) the Referrer is not a party to any Qualifying Transaction or other transaction between any Registered Prospect and Countable; (e) Countable may in its discretion refuse to deal with any Registered Prospect or reject, refuse, cancel or terminate any order for any transactions with any Registered Prospect, without any notice or liability to the Referrer or any other person; and (f) all Qualifying Transactions and other transactions with Registered Prospects are governed by Countable’s standard terms and conditions and Countable’s policies and procedures, as established and amended by Countable from time to time and in its discretion.
3. OWNERSHIP OF INTELLECTUAL PROPERTY
3.1. Intellectual Property. In this agreement, “Intellectual Property” means all intellectual property rights of whatever nature anywhere in the world, including all rights conferred under statute, common law or equity, including trademark rights, service mark rights, patent rights, copyrights, design rights and trade secrets, any rights to apply for registration (to the extent registrable) of any of the foregoing rights.
3.2. Ownership. The Software (including its structure, organization, code and other intellectual property) and any Countable marketing material is proprietary to, and is the Intellectual Property and Confidential Information of, Countable. Countable retains the exclusive ownership of the Intellectual Property rights vested in the Software, its marketing material and the Countable trademarks (“Trademarks”). All rights not specifically granted under this Agreement, including federal and international copyrights, are reserved by Countable.
3.3. Protection of Intellectual Property. The Referrer shall take all reasonable measures to protect the Intellectual Property rights of Countable in the Software and Trademarks, including providing such assistance and taking such measures as are reasonably requested by Countable from time to time.
4.1. Definition of Confidential Information. In this Agreement, “Confidential Information” means all non-public information, in any form and on any medium, identified by a Party (the “Disclosing Party”) as confidential and disclosed by such Party to the other Party (the “Receiving Party”) under this Agreement, regardless of the form of disclosure, and includes and without the need to identify as confidential all information relating to a Party’s finances, order volumes, markets, businesses, technologies, ideas, and marketing plans. For greater certainty, all Reports and all non-public information concerning the Software, Qualifying Transactions, and the terms of this Agreement are Confidential Information of Countable. Information will not be considered to be Confidential Information to the extent, but only to the extent, that the information is: (a) already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) subsequently learned by the Receiving Party from an independent third party free of any restriction and without breach of this Agreement, any agreement with such third party or any other confidentiality obligation; (c) or becomes publicly available through no wrongful act of the Receiving Party; or (d) independently developed by the Receiving Party without reference to any of the Disclosing Party’s Confidential Information.
4.2. Duty to Protect. Subject to paragraph 4.3, the Receiving Party will (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations and exercise the Receiving Party’s rights under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement; (c) both during the course of either Party’s obligations per this Agreement and indefinitely after the Term maintain the strict confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as the Receiving Party affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information; and (d) ensure that the persons to whom the Receiving Party discloses the Disclosing Party’s Confidential Information strictly comply with the requirements and restrictions set forth in items (a), (b) and (c) above.
4.3. Permitted Disclosures. Notwithstanding the restrictions set forth in paragraph 4.2 above, the Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to the extent that such disclosure is required by a valid order of a court or governmental body of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Disclosing Party’s Confidential Information, unless such prior disclosure is prohibited by the order or applicable law; and (b) to its legal, accounting and tax advisors to the extent that such disclosure is required for a bona fide legal, accounting or tax purpose.
5. WARRANTY ONLY TO END USERS
Countable warrants the Software to End Users ONLY pursuant to the terms and conditions of the EULA, and no express or implied warranty or guarantee in relation to the Software or any other matter is extended in any way to the Referrer under this Agreement. For the purposes of this Section, “End Users” shall mean licensees of the Software who acquire the Software for their own use rather than distribution and excludes distributors, resellers, retail partners, third party vendors, systems integrators, commission agents, or other parties who have licensed the Software from Countable for distribution or resale.
To the maximum effect, permitted by applicable law, in no event shall countable, any of its parents, subsidiaries, or affiliates any of their employees, officers or directors (collectively the “countable entities”) be liable to the referrer or any third party for any indirect, special, incidental, punitive or consequential damages (including, but not limited to, damages for the inability to use equipment or access data, loss of business, loss of profits, business interruption or the like) arising out of the use of, or inability to use, the software and based on any theory of liability including breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if countable or its representatives have been advised of such damages.
6. LIMITATION OF LIABILITY; DISCLAIMER
6.1. To the maximum effect, permitted by applicable law, in no event shall countable, any of its parents, subsidiaries, or affiliates any of their employees, officers or directors (collectively the “countable entities”) be liable to the referrer or any third party for any indirect, special, incidental, punitive or consequential damages (including, but not limited to, damages for the inability to use equipment or access data, loss of business, loss of profits, business interruption or the like) arising out of the use of, or inability to use, the software and based on any theory of liability including breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if countable or its representatives have been advised of such damages.
6.2. Without limiting the generality of paragraph 6.1, in no event and under no circumstances will the total aggregate liability of the countable entities under any provision of this agreement exceed any referral fees paid to a referrer in the previous twelve (12) months.
7.1. Indemnity by Referrer. During and after the Term, the Referrer will defend, indemnify and hold harmless Countable, its officers, employees, agents, contractors and affiliates, jointly and severally, from and against all third party Claims and third party Proceedings directly or indirectly arising from, connected with or relating to any negligence, misconduct or breach of this Agreement by the Referrer or any person for whom the Referrer is responsible pursuant to this Agreement or at law. In this Agreement, (i) “Claims” means claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses and disbursements, including reasonable attorney’s fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal; and (ii) “Proceedings” means actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.
8. TERM AND TERMINATION
8.1. Term. The term of this Agreement shall commence upon a Referrer’s participation with the Referral Program, until termination in accordance with the provisions of this Agreement (“Term”).
8.2. Termination Without Cause. Either Party may terminate this Agreement for convenience at any time, upon fourteen (14) days’ prior written notice to the other Party.
8.3. Termination With Cause by Either Party. Either Party may terminate this Agreement immediately, upon written notice to the other Party if:
(a) The other Party ceases to carry on its business;
(b) There is a change of control of the other Party; or
(c) The other party or one of its direct shareholders is or becomes subject to any of the following events (including events in the nature of or analogous to any of the following): (1) bankruptcy or insolvency; (2) any form of voluntary or involuntary insolvency administration or liquidation, including where it has an administrator, examiner or receiver appointed to it, its property and assets or its affairs, but excluding where such administration or liquidation is voluntarily entered into for the purpose of carrying out a reconstruction or amalgamation while solvent; or (3) entering into a scheme or voluntary arrangement with its creditors for partial discharge of indebtedness.
8.4. Termination by Countable for Cause. Countable may terminate this Agreement, upon written notice to the Referrer for the Referrer’s breach of: Clause 3 (Ownership of Intellectual Property or Clause 4 (Confidentiality).
(a) Rights Upon Termination or Expiration. The Termination or expiration of this Agreement shall be without prejudice to the rights and obligations of the Parties that have accrued as of the date of termination or expiration. Upon termination of this Agreement, the Referrer shall: (1) discontinue all representations that it is an affiliate of the Software; (2) immediately cease using the Trademarks; (3) as directed by Countable, return, destroy or delete all Confidential Information or other materials (such as marketing collaterals) that is in the Referrer’s possession or under its control; (4) provide to Countable written confirmation the requirements of this subparagraph has been complied with; and (5) refer all inquiries regarding the Software to Countable and give Countable notice thereof.
8.5. Payment of Fees Upon Termination. In the event of termination, Countable shall pay the Referrer all outstanding Referral Fees accrued until receipt of the notice of termination.
8.6. Survival. The Termination or expiration of this Agreement does not extinguish or otherwise affect any provisions of this Agreement, which by their nature should survive termination or expiration. For the avoidance of doubt, the following is a non-exclusive list of clauses which will survive the termination or expiration of this Agreement: (1) Clause 4 (Confidentiality); (2) Clause 6 (Limitation of Liability; Disclaimer); (3) Clause 8 (Term and Termination); and (4) Relevant provisions of Clause 9 (General), including but not limited to 9.2 (Assignment), 9.3 (No Agency), 9.5 (No Third Party Beneficiaries), 9.14 (Governing Law).
9.1. Notices. Any notice given under this Agreement must be in writing and may be given by e-mail to email@example.com (“Notice”). A notice is taken to have been received upon the earlier of (i) the sender receiving an automated message confirming delivery; or (ii) 3 hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
9.2. Assignment. Except as expressly set forth below in this section, neither the Agreement nor any of the rights or obligations of the Referrer may be assigned, in whole or in part without the prior written approval of Countable. Should the Referrer undergo a change of control, Countable will be entitled to terminate the Agreement immediately on written notice to the Referrer . For the purposes of this Section, a change in the persons or entities who control fifty percent (50%) or more of the equity securities of the Referrer shall also be considered a change of control. Countable may, at its sole discretion, assign this Agreement, or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of the Referrer. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
9.3. No Agency. Nothing in this Agreement is intended to constitute a fiduciary relationship or an agency, partnership, joint venture, exclusive, trust or other similar relationship between the parties. No Party has authority to bind or incur any obligation on behalf of any other Party.
9.4. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control or anticipation, including, but not limited to acts of nature, war, strikes, Internet outage or performance problems, computer viruses, hackers, terrorism, lack or failure of transportation facilities, and changes to laws or governmental regulations.
9.5. No Third Party Beneficiaries. Nothing 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.
9.6. Headings and Table of Contents. The inclusion in this Agreement of headings, subheadings and table of contents is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
9.7. Gender and Number. In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
9.8. Currency. In this Agreement, all amounts are stated and payable in American (USD) currency, unless stated otherwise.
9.9. Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.
9.10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the Parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.
9.11. Modification. Countable may modify this agreement at any time by (a) posting a notice on its website or the Partner Portal, or (b) by e-mailing a representative of the Referrer. Countable will also update the “Last Updated” date identified at the top of this agreement; each Referrer is responsible for ensuring the currency of the Agreement whenever referring the Software to prospective End Users. For greater certainty, Countable may, in its sole discretion, choose to withdraw or cancel the Referral Program, may modify the Referral Fee, may amend what constitutes a Qualifying Transaction, or may introduce adding additional terms, restrictions, and conditions applicable to the Referrer Program. By participating in the Referral Program, Referrers are indicating that they agree to be bound by the modifications of these terms. If the modified terms are not acceptable to the Referrer, the Referrer must notify Countable with its intention to terminate this Agreement. Notwithstanding the foregoing, the information and material on Countable’s website may be changed, withdrawn, or removed at any time in Countable’s sole discretion without notice.
9.12. Waiver. No consent by a Party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused
9.13. Non-Exclusive. The relationship between the Parties is non-exclusive and nothing in this Agreement in any way limits, impairs or restricts either Party’s right and ability, and each Party reserves the right and ability from time to time in its discretion to enter into similar arrangements or relationships with third parties. Without limiting the generality of the foregoing, Countable reserves the right to appoint additional Referrers during the Term and to directly and indirectly market, promote, distribute, sell and resell, maintain and support and otherwise commercially exploit the Software, and any other software or services, on a worldwide or territorial basis, and including through other channels, referral sources, resellers and distributors.
9.14. Governing Law, Venue and Dispute Resolution
9.14.1. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
9.14.2. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of Ontario and the federal laws of Canada, excluding its conflict of law provisions.
9.14.3. In the event of a dispute regarding this Agreement, the Parties shall consult each other in good faith to attempt to resolve the dispute without judicial intervention. If the Parties cannot resolve the dispute, the Parties shall refer the dispute to final and binding arbitration in Toronto, Ontario, by an arbitrator with experience in software license and intellectual property agreements.
9.14.4. If any proceeding or lawsuit is brought by Countable or the Referrer in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees, and reasonable legal fees, including on appeal.
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