Partnership Agreement

THIS CO-MARKETING PARTNER AGREEMENT (the "Agreement"), is by and between Business Growth Elite Inc. dba UPbook (hereafter referred to as "UPbook") and YOU (hereafter referred to as "Co-Marketing Partner") (sometimes individually referred to as a "Party" and collectively as "Parties").

 

RECITALS

WHEREAS, the Co-Marketing Partner is a service provider with a similar target market as UPbook, offering related products and services, and UPbook is in the business of providing a software training platform called UPbook to its customers and clients; and WHEREAS, UPbook and the Co-Marketing Partner have agreed to create an affiliation between them in which UPbook and the Co-Marketing Partner will share the revenue created by business & success training through UPbook Websites to leads provided by the Co-Marketing Partner during the term of this Agreement, the date of such affiliation being the date of this Agreement, as set forth above.

NOW THEREFORE, toward this end, and in consideration of the promises, covenants and agreements contained herein, and the mutual benefits to be derived from this Agreement, the Parties agree as follows:

AGREEMENT

  1. PARTICIPATION IN THE PROGRAM

This agreement governs participation in the UPbook Co-Marketing Partnership Program only. Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria below for the Program, we may terminate this Agreement:

  • Promote graphic violence (which may include certain types of game sites)
  • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
  • Promote sexually explicit, pornographic or obscene content (whether in text or graphics)
  • Promote illegal activities
  • Promote content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable
  • Promote or use bulk unsolicited email (spam)
  • Promote speech or images that are offensive, profane, hateful, threatening harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise)
  • Promote content related to liquor, tobacco, firearms, drugs, gambling, crime, or death
  • Promote politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns)
  • Promote any unlawful behavior or conduct 

Otherwise are considered offensive or inappropriate at UPbook's sole discretion

 

2. DEFINITIONS

2.1 "Offer" means a specific offer posted by UPbook on its Co-Marketing Partnership Program site. The terms and conditions of such Offers shall be incorporated into this Agreement.

2.2 "Qualifying Link" means an UPbook link from your Email or Site to UPbook’s Site using one of the Required URLs or any other URL or graphic link provided by UPbook for use in the Program. A Qualifying Link or "Linking Materials" shall be defined as hyperlinks, buttons, banners, or other user interface established by UPbook for your Emails or Web site.

2.3 "Qualifying Product Revenues" means revenues derived by us from Product or Membership Sales, less chargebacks, taxes, surcharges and processing fees.

2.4 "Required URLs" means the special URLs specified in an Offer to be used to link from your Emails or Site to UPbook's Site.

2.5 "Site" means a World Wide Web Site and, depending on the context, includes the website `that you will link to the UPbook Site as identified in your Co-Marketing Partnership Program.

 

3. YOUR RESPONSIBILITIES

3.1. You shall only link your Emails & Site to areas within UPbook's Site using Required URLs for the Program. You may post as many links to the Required URLs as you like.

3.2. You agree to display UPbook Link materials appropriately on your Web site and/or Email and to respect UPbook's trademarks, service marks, and other rights in the Link Materials. You will use only these Link materials to link your Web site to UPbook's Web site, and you will not alter the look or feel of these Link Materials or of our Web site in any way. You will update to new versions of Link Materials as UPbook makes them available or you submit a request for a specific type of Linking Material.

3.3. UPbook will not, and is not obligated to, make any representations, warranties or other statements concerning you, your Site, any of your products or services, or your Site policies.

3.4. You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your site. We disclaim all liability for such materials. You shall indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney's fees) relating to the development, operation, maintenance and contents of your Site. You are also responsible for notifying us of any malfunctioning of the Required URLs or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement. UPbook will respond in normal course to all concerns upon notification.

 

4. COMMISSIONS

As an approved participant of UPbook’s Co-Marketing Partnership Program, you may earn commissions for Co-Marketing services in accordance with this Section 4. UPbook may change or terminate the provisions of this Section 4 at any time and at UPbook’s sole discretion.

4.1 Indefinitely, following the date of this Agreement, any UPbook Phones Product sold through UPbook website to any client resulting from a Co-Marketing Partner website lead:

Co-Marketing Partner will earn a revenue share of 20% of the recurring monthly subscription fee when the phones are supplied by UPbook; the commission is higher, 30%, if Co-Marketing Partner supplies the phones to our clients. The commission is coterminous with the referred client’s contract with UPbook.

UPbook will maintain records in sufficient detail for the purpose of determining the amount of the commission. UPbook holds the right to change percentage commission based on individual and product basis. Any product/service returns will be deducted from the commission that is due to the Co-Marketing Partner.

4.2. UPbook shall have the sole right and responsibility for processing all payment processing and fulfillment of orders for our Products sold pursuant to this Agreement. You acknowledge that all agreements relating to sales to Customers shall be between UPbook and the Customer.

4.3. You acknowledge that your entitlement to any compensation reported with respect to any tracked or reported activity is solely a function of the terms of your agreement with UPbook and that UPbook is solely responsible for its payment. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from UPbook, since payment may be subject to conditions established by UPbook, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and minimums for earned compensation before payment is made. All determinations of Qualifying Links and the compensation due to you shall be final and binding.

4.4 In order to receive commissions for the payment period, the Co-Marketing Partner must maintain an active status. To maintain an active status, a Co-Marketing Partner must have a minimum of one (1) UPbook sign up/sale per quarter. This condition will take effect 6 months after becoming a Co-Marketing Partner with UPbook. The initial 6 months (180 days) will serve as a time for both parties to ascertain the viability and effectiveness of the partnership. This is the Proof of Concept period.

When 6 months (180 days) pass from the commencement of the Partnership and neither party decides to terminate this Agreement, it is deemed that the Proof of Concept period is completed and to maintain active status, the Co-Marketing Partner must have a minimum of two (2) sales each quarter from then on. If this threshold is not reached, commissions earned during the time the partner does not qualify for active status will not be credited to the Co-Marketing Partner. Commissions will resume when the Co-Marketing Partner regains their active status. 

4.4. All determinations of Qualifying Links and whether a commission is payable will be made by UPbook and will be final and binding on both parties. Prices for the products will be set solely by UPbook at its discretion.

4.5. Only those who are approved by the UPbook Co-Marketing Partnership Program at the time of receipt of a Customer offer(s) will be eligible for payment under this Agreement.

4.6. As an independent contractor, you will be solely and entirely responsible for any and all taxes and/or other fees or obligations associated with the receipt of payment under this Agreement.

4.7. The terms and conditions of this Section 4, including the fee amounts, may be changed at any time and for any reason within UPbook's sole discretion.

 

5. UPbook OBLIGATIONS

  1. UPbook will introduce its clients in the MSP’s territory to our partner MSP. UPbook will include a recommendation and promotion of your services to all new sign-ups in your area. 
  2. UPbook customers encountering network problems in your territory will be referred to you. You will provide on-premise support.
  3. UPbook will feature partner MSP on its website.
  4. Give Partner MSP the training needed, as well as backend portal access, for them to successfully provide Level 1 support to UPbook clients. 
  5. UPbook will send an intro email to our list of 7,000 practice owners introducing you as our MSP partner in your territory.
  6. 1 Blog guest post slot for Partner MSP per quarter with a backlink (topic will be assigned to you and you will write the copy and supply the image and bio).
  7. Partner will earn 20% per month indefinite recurring monthly commission per practice referred to us when phones are supplied by UPbook, and 30% per month when phones are supplied by Partner MSP.
  8. Direct access to level 2 support

 

6. MSP PARTNER OBLIGATIONS

  1. Bundle & co-brand your VoIP and Managed Services offer for healthcare service providers with UPbook.
  2. Respond to support calls promptly. This is the biggest value you bring to the table.
  3. Upsell UPbook to your existing clients in the healthcare sector.
  4. Create an email campaign promoting UPbook.
  5. Provide 5 social media post slots per quarter to UPbook on Facebook, and another 5 on LinkedIn; 10 in total. UPbook will provide the content to be published.
  6. Provide 1 guest blog post slot per quarter with a backlink to our site. UPbook will select the topic and provide the content.
  7. Feature UPbook prominently on your website as a technology partner and backlink to UPbook’s website.
  8. Only use the provided links to refer clients to UPbook. These links have tracking cookies enabled. Failure to use these tracking links will forfeit your commission as we will not be able to attribute the sale to you.

 

7. REFERRAL FEE PAYMENT

Unless otherwise stated in an Offer Addendum, we will pay you referral fees on a monthly basis. Approximately thirty (30) days following the end of each month, we (or our designee) will send you a check for the referral fees earned on Qualifying Product revenues for that month, less any returns, and canceled orders.

 

8. OWNERSHIP, LICENSES, AND PAY PER CLICK SEARCH ENGINE POLICY

8.1. Each party owns and shall retain all right, title, and interest in its names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology currently used or which may be developed and/or used by it in the future.12.2. We grant you a limited, revocable, non-exclusive, license to use the graphic image and text, which may include our name, logos, trademarks, service marks (collectively, the "UPbook Marks"), designated in the Offer, only as provided to you through the UPbook Co-Marketing Partnership Program and solely for the purpose of creating links from your Emails and Site to our Site pursuant to this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. Any prominent use of the UPbook Marks on your Site must be approved by UPbook prior to publishing. We may revoke your license at any time by giving you written notice.

8.2. Customers that link from your Email and Web site to UPbook's Web site under this program become UPbook’s customers and UPbook’s responsibility for purposes of their business relationship with UPbook. UPbook’s Customer lists and other UPbook Customer information are UPbook’s trade secret information.


9. TERMINATION

9.1. The rights and obligations created hereunder shall continue in full force and effect for one (1) year following the date of this Agreement and will automatically renew for successive one-year terms unless terminated in writing by either party.

9.2. Either party may terminate this Agreement at any time, for any reason, by deleting their acceptance of the Offer through support@upbook.com upon five (5) days prior written notice of such termination to the other party. In addition, UPbook shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if UPbook determines, in its sole discretion, that there are technical, or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently, or through misrepresentation, in which case UPbook reserves the right to withhold payment of associated referral pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action, and any provisions that by their terms are intended to survive termination shall survive termination of this Agreement.

9.3. Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all UPbook trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.

9.4. You are only eligible to earn commissions on Qualifying Product Revenues occurring during the terms of this Agreement, and referral fees earned through the date of termination will remain payable only if the related Qualifying Products are not canceled or returned by a Customer.

 

10. REPRESENTATIONS

10.1. You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material displayed on your site will not: 

(i) infringe on any third party's copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy; 

(ii) violate any applicable law, statute, ordinance, or regulation; 

(iii) be defamatory or libelous; 

(iv) be lewd, pornographic or obscene; 

(v) violate any laws regarding unfair competition, anti-discrimination, or false advertising; (vi) promote violence or contain hate speech; 

(vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation, or disability; 

(viii) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines' or 

(ix) otherwise constitutes an "unsuitable Site" as determined by UPbook in accordance with the terms outlined in Section 1 above titled "Participation in the Program."

10.2. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UPbook MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

 

11. INDEMNIFICATION

Each party hereby agrees to indemnify, defend and hold harmless the other party and its Co-Marketings, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.

 

12. LIMITATION OF LIABILITY

In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement or the Co-Marketing Program, even if informed of the possibility of such damages. Further, neither party's aggregate liability arising from this Agreement and the Program shall exceed the total referral fees paid or payable to you under this Agreement.

 

13. GENERAL

13.1. No Agency. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement (including any Offer) shall create any partnership, joint ventures, agency, franchise, sales representative, or employment relationship between the parties. Neither party shall make any statement, whether on their sites or otherwise, that reasonably would contradict anything in the paragraph.

13.2. Responsibility for Binding Agreement. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit Customer referrals on terms that may differ from those contained in this Agreement or operate Sites that are similar to or compete with your Site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

13.3. Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of California, without reference to rules governing choice of laws and you irrevocably consent to the jurisdiction of such courts. UPbook may freely assign their rights in this Agreement. A Co-Marketing Partner may not assign Co-Marketing rights in this Agreement.

13.4. Counterparts; Manifestation of Assent. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties.

13.5. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

13.6. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

13.7. Equitable Relief. The parties agree that any breach of either of the party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

13.8. Obligation to Mediate in Good Faith. Except as provided in this Section 11.7, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties' performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designates an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honor the other's reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section 11.8.

13.9. Force Majeure. You acknowledge that UPbook's servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond UPbook's reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. UPbook will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program.

13.10. Attorneys' Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is entitled to receive from the other party, will be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action.

13.11. Survival. Sections 9 (Termination), 11 (Indemnification), 12 (Limitation of Liability), and 13 (General), including all subsections thereof, shall survive the termination of this Agreement.

13.12. Modifications. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the UPbook Co-Marketing Partner Site and giving you notice of the modification. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules.

IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.