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This agreement establishes a strategic partnership between FirstWho and PARTNER for business development, lead generation, and revenue sharing opportunities. Both parties agree to collaborate in good faith to identify and develop business opportunities that benefit both organizations.
Annual Subscriptions Referred
Annual Subscriptions Closed
3.1 First Year Limitation
All commissions specified in Section 2 apply to the first year of any customer relationship or contract period only.
3.2 Upgrade/Downgrade Recalculation
If a customer upgrades their service or subscription within the first 90 days of their initial purchase, the commission will be recalculated based on the upgraded service level, with any additional commission paid within 30 days of the upgrade confirmation. Similarly, if a customer downgrades within the first 90 days, a debit will be applied against a future commission disbursement.
3.3 Payment Terms
4.1 Confidential Information
Both parties acknowledge they may have access to confidential and proprietary information, including but not limited to:
4.2 Protection Obligations
Each party agrees to:
4.3 Duration of Confidentiality
Confidentiality obligations survive termination of this agreement and remain in effect for a period of five (5) years from the date of termination.
5.1 Severability Clause
If any provision of this agreement is found to be unenforceable, invalid, or illegal by a court of competent jurisdiction, such provision shall be severed from this agreement, and the remaining provisions shall continue in full force and effect.
5.2 Reformation
In the event of severability, both parties agree to negotiate in good faith to replace any severed provision with a valid and enforceable provision that achieves the same economic and business purpose.
6.1 Term and Termination
6.2 Independent Contractors
Both parties are independent contractors, and nothing in this agreement creates an employment relationship, joint venture, or agency relationship.
6.3 Governing Law
This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
6.4 Entire Agreement
This agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, or agreements relating to the subject matter herein.
6.5 Modifications
This agreement may only be modified in writing and signed by both parties.
7.1 Escalation Process
Any dispute, controversy, or claim arising out of or relating to this agreement, or the breach, termination, or validity thereof, shall be resolved according to the following escalation process:
Step 1: Direct Negotiation The parties shall first attempt to resolve any dispute through good faith direct negotiation between authorized representatives of each party for a period of thirty (30) days after written notice of the dispute.
Step 2: Mediation If direct negotiation fails to resolve the dispute within thirty (30) days, the parties agree to participate in non-binding mediation administered by the American Arbitration Association (AAA) in Boston, Massachusetts. Each party shall bear its own costs of mediation, with mediator fees split equally.
Step 3: Binding Arbitration If mediation fails to resolve the dispute within sixty (60) days of initiation, the dispute shall be finally settled by binding arbitration administered by the AAA under its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator in Boston, Massachusetts. The arbitrator's decision shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction.
7.2 Limitation on Relief
Neither party may seek punitive or consequential damages in any dispute resolution proceeding. Relief shall be limited to actual damages and specific performance where appropriate.
7.3 Interim Relief
Nothing in this section shall prevent either party from seeking temporary restraining orders or preliminary injunctions from a court of competent jurisdiction to preserve the status quo or prevent irreparable harm.
8.1 FirstWho Indemnification
FirstWho agrees to defend, indemnify, and hold harmless PARTNER, its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising from or relating to:
8.2 PARTNER Indemnification
PARTNER agrees to defend, indemnify, and hold harmless FirstWho, its officers, directors, employees, and agents from and against any and all claims, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising from or relating to:
8.3 Limitation of Liability
EXCEPT FOR BREACHES OF CONFIDENTIALITY, INTELLECTUAL PROPERTY VIOLATIONS, OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF OPPORTUNITIES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTNER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.
9.1 Proprietary Rights
Each party retains all rights, title, and interest in and to its respective pre-existing intellectual property, including but not limited to:
9.2 Work Product Ownership
Any work product, materials, or intellectual property created specifically for FirstWho customers through this partnership ("Derivative Work Product") shall be owned exclusively by FirstWho, including:
9.3 License Grant
Each party grants the other a limited, non-exclusive, non-transferable license to use its trademarks, service marks, and marketing materials solely for the purposes of this partnership and subject to the following conditions:
9.4 Intellectual Property Indemnification
Each party warrants that its intellectual property used in connection with this partnership does not infringe upon the rights of any third party. Each party shall indemnify the other against any claims of intellectual property infringement arising from the use of its proprietary materials.
9.5 Return of Intellectual Property
Upon termination of this agreement, each party shall:
9.6 Remedies for IP Violations
Both parties acknowledge that any unauthorized use of intellectual property may cause irreparable harm for which monetary damages would be inadequate. Therefore, the non-breaching party shall be entitled to seek injunctive relief and other equitable remedies without prejudice to any other rights or remedies available at law or in equity.
