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Partner Program Agreement

Last modified: April 4, 2017

This is a contract between you (the Partner) and us (Local Search Essentials). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are so important though that we cannot have you participate in our Partner Program unless you agree to them. By participating in our Partner Program, you are agreeing to these terms.

We periodically update these terms. You agree to review this page on a regular basis and always remain in compliance.

1. Definitions

“Agreement” means this Partner Program Agreement and all materials referred or linked to in here.

“Service Terms & Conditions” refers to the terms and conditions by which we provide service, as modified from time to time.

“End User” means the authorized actual user of our service.

“End User Data” means all information that End User submits or collects via the Service and all materials that End User provides or posts, uploads, inputs or submits for public display through the Service.

“Local Search Essentials Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.

“List Price” means the standard pricing for our Services. We reserve the right to change such pricing at any time. However, we will not apply any price change to End Users who purchase Services within ten (10) days after such price change.

“Partner Transactions” means those transactions that are eligible for a Revenue Share pursuant to the ‘Partner Transactions’ section of this Agreement.

“Partner Program” means our partner program as described in this Agreement.

“Program Policies” means the policies applicable to partners.

“We”, “us”, “our”, and “Local Search Essentials” means Local Search Essentials, Inc.

“You” and “Partner” means the party, other than Local Search Essentials, entering into this Agreement and participating in the Partner Program.

2. Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will 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.

3. Partner Transactions

Partner Rights and Obligations
We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote our Services to your prospects and customers, and (ii) to provide End Users access to use our Services in accordance with this Agreement and the Service Terms & Conditions, provided that End Users agreed to the Service Terms & Conditions. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a prospect. You will comply with the terms and conditions of this Agreement at all times, including the Program Policies which are incorporated herein by reference. The Program Policies may include requirements that Partner must complete in order to qualify for a certain partner tier.

Eligibility
You are not eligible to receive a Revenue Share or any other compensation on any Partner Transaction if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits the inclusion of such compensation in the price of the contract or excludes such compensation from its payments to us; or (iii) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you. We might also determine that you are not eligible for a Revenue Share if you are no longer actively engaged with the End User. If we request, you will provide validation on or around the time of End User renewal that the End User is still engaged with you. We may discontinue Revenue Share payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.

Submission, Acceptance and Validity
We generally will accept a prospect who, in our reasonable determination: (i) is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, involved in our active sales process, or your affiliate. Notwithstanding the foregoing, we may choose not to accept a prospect in our reasonable discretion. We will, at our discretion, accept an order and provision our Services for the End User. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated.

Local Search Essentials Leads
We may choose to send you data or information regarding certain of our prospects (“Local Search Essentials Leads”). If we choose to send you Local Search Essentials Leads, we may or may not contact or qualify such Local Search Essentials Leads before we send them to you. Local Search Essentials Leads are not subject to the expiration period set forth in the ‘Partner Program Limits’ section above. You do not need to register Local Search Essentials Leads, and each Local Search Essentials Lead will be considered a registered, accepted and valid prospect upon our provision of it to you until the earlier of: (i) our request that you discontinue all use of and delete such Local Search Essentials Lead or (ii) expiration or termination of this Agreement. We may have Program Policies that apply specifically if we send you Local Search Essentials Leads, which might include requirements you must meet related to sales, marketing and services activities.

You will use Local Search Essentials Leads only to market and sell our Services in accordance with this Agreement and not for any other purpose. Immediately upon our request, you will promptly discontinue all use of and delete Local Search Essentials Leads. Local Search Essentials Leads are considered our Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

Engagement with Prospects
If a prospect is valid, we will not engage with that prospect except: (i) to complete the sign up process, (ii) to fulfill our obligations under an agreement with such prospect, (iii) to provide support, (iv) or to conduct our standard marketing activities with prospects that have subscribed to or requested any of our marketing materials. When we do engage, we may choose how and whether to engage with each prospect. We may elect to contact the prospects directly, whether or not such contact is by us directly or in conjunction with you. Upon our request, you will provide us with the name and contact information of the End User. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.

In a resulting Partner Transaction, (i) the End User will contract directly with us for provision of the Subscription Service, or (ii) you will place order(s) for the Services with us, specifying the terms of the Subscription Service ordered and providing information about the End User as we may request. In the case of (ii), you may sell the Subscription Service to End Users at a price determined solely by you and you will ensure that your agreement with the End User contains those provisions set forth in the our Service Terms & Conditions. If you purchase on behalf of an End User, you agree to be responsible for the order placed and to guarantee payment of all fees. We may also require each End User to agree to the Service Terms & Conditions.

If you purchase a subscription for an End User, such subscription may be used only for the End User for which it was originally purchased, and it may not be repurposed for or reassigned to an alternate End User without our prior written consent.

You will take all reasonable steps to ensure that End Users do not use the Subscription Service in violation of the Service Terms & Conditions. If you discover or have reason to believe that any End User is making use of the Subscription Service in violation of the Service Terms & Conditions, then you will immediately notify us in writing.

4. Revenue Share and Payment

In order to receive payment, you must provide us with the name and address of your bank, your account name and number, and the Swift (BIC) code, IBAN, and ACH number of your account. To provide us with this information, you must complete the account information form, which can be downloaded here. You must also submit a completed Form W-9 (for U.S.-based companies) or Form W-8BEN (for non-U.S. based companies) in order to receive payment, and failure to do so will result in non-payment by us until a completed Form W-9 or W-8BEN is received. A Form W-9 can be downloaded here. A Form W-8BEN can be downloaded here and instructions for filling it out can be found here. We update these forms from time-to-time, without notice to you, by updating the forms available at these links. The account information form, along with a Form W-9 or Form W-8BEN must be returned to us by email at partners@localsearchessentials.com.

We will pay the Revenue Share amount due to you within forty-five (45) days after the end of each fiscal quarter in an amount equal to the Net Revenue we recognize as revenue from Partner Transactions during such quarter, times the Revenue Share percentage. For example, pre-payment in full by an End User for an annual commitment will be recognized by us as revenue quarterly on a pro-rata basis for the length of time the Subscription Service was provided during each quarter during the annual term, and you will receive the Revenue Share on that same quarterly pro-rata basis. We will not pay more than one Revenue Share or other similar referral fee on any given partner sale (unless we choose to in our discretion) and we may apportion a Revenue Share if more than one of our partners has contributed to the close of a sale.

You are responsible for payment of all taxes applicable to the Revenue Share. You will be assessed sales tax unless you provide us with a valid reseller certificate that indicates tax should not be applied to the Revenue Share amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

In the event you placed the order with us for an End User, for payments made by credit card, you will provide us with valid and updated credit card information or bank account information. You authorize us to charge your credit card or bank account for all fees payable. You also authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice.

In the event you placed the order with us for an End User, if you do not pay fees due for an End User’s account within fifteen (15) days after notice of non-payment from us, (i) the unpaid fees will incur a late fee equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law, and (ii) we may suspend our Services while any payment is delinquent. We may also terminate or suspend the End User’s access to our Services and/or to initiate direct communication with the End User. Notwithstanding the expiration or earlier termination of this Agreement, you remain obligated to pay all fees due for our provision of our Services to End Users in connection with an order placed with us by you for an End User. If you placed the order with us for an End User, you will have sole responsibility for invoicing and collecting fees for our Services from the End User. Your obligation to pay fees to us is not conditioned upon your receipt of payment from the End User.

5. Training and Support

Partner Training and Support
We may make available to you, without charge, webinars and other resources. You will encourage your sales representatives and other relevant personnel to participate in our online end-user training, as well as any training we may offer in new features and upgrades.

End User Training and Support
We will provide user training purchased by an End User as set forth in a mutually agreed upon order. We may to communicate directly with any End User about use of our Services and any support issues experienced.

In the event you placed the order with us for an End User, you will be responsible for all End User questions and requests for additional support or training for our Services. In such an event, you may consult with us with regards to providing support to End Users, but we will not provide direct support to End Users unless we determine that it is necessary.

6. Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Partner Marks”) in connection with the Partner Program and this Agreement.

During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

7. Proprietary Rights

Local Search Essentials’s Proprietary Rights
No license to any software is granted by this Agreement. The Service is protected by intellectual property laws. The Service belongs to and is the property of us or our licensors (if any). We retain all ownership rights in the Service. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Local Search Essentials Content or the Service in whole or in part, by any means, except as expressly authorized in writing by us. Local Search Essentials, the Local Search Essentials logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.

We encourage all customers and partners to comment on our Services, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into our Services, without payment to you.

End User’s Proprietary Rights
As between you and End User, End User retains the right to access and use the End User portal associated with the our Services regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If we deem it to be necessary based on the relationship status between you and the End User, we may port ownership of the portal associated with the Subscription Service to the End User.

8. Confidentiality

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

9. Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to Local Search Essentials Leads. For the duration of this Agreement, you will establish and maintain systems and procedures to appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

10. Term and Termination

a. Term. This Agreement will apply for as long as you participate in the Partner Program, until terminated.

b. Termination Without Cause. Both you and we may terminate this Agreement on sixty (60) days written notice to the other party.

c. Termination for Cause. We may terminate this Agreement and/or suspend your or the End User’s access to our Services: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, or (ii) upon fifteen (15) days notice to you of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Service Terms & Conditions or applicable local, state, federal, or foreign laws or regulations, or (v) immediately, if we determine that you are acting in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

d. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement without cause by us or by you with cause, shall not affect our obligation to pay you a Revenue Share, so long as the related payment by the End User is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on End User payments recognized by us after thirty (30) days after the date of such termination or expiration. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Revenue Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Revenue Share after expiration or termination of this Agreement. Upon termination you will discontinue all use of and delete all Local Search Essentials Leads.

11. Partner Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Partner Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Partner Marks.

12. Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Partner Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of Optional Partner Programs, or (e) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

13. Disclaimers; Limitations of Liability

a. Disclaimer of warranties. We and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security or accuracy of the subscription service, local search essentials content, the partner program, or the optional partner programs for any purpose. Application programming interfaces (apis) may not be available at all times. To the extent permitted by law, the subscription service and optional partner programs are provided “as is” without warranty or condition of any kind. We disclaim all warranties and conditions of any kind with regard to the subscription service and the optional partner programs including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

B. No indirect damages. To the extent permitted by law, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.

C. Limitation of liability. If, notwithstanding the other terms of this agreement, we are determined to have any liability to you or any third party, the parties agree that our aggregate liability will be limited to the total revenue share amounts you have actually earned for the related partner transaction in the twelve month period preceding the event giving rise to a claim.

D. Optional partner programs. We disclaim all liability with respect to optional partner programs that you use.

14. Non-Solicitation

You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twenty four (24) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.

15. General

a. Amendment; No Waiver. We may update and change any part or all of this Agreement. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.

If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

b. Applicable Law. This Agreement shall be governed by the laws of the State of Florida, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Boston, Massachusetts.

c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

e. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.

f. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Subscription Service. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service by prohibited countries or individuals.

g. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

h. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To Local Search Essentials, Inc.: Local Search Essentials, Inc., P.O. Box 791, St. Augustine, FL 32085, U.S.A. Attention: General Counsel

To you: your address as provided in our partner account information for you.

We may give electronic notices by general notice via the partner portal and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center in the partner portal. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

i. Entire Agreement. This Agreement is the entire agreement between us for Partner Program and supersedes all other proposals and agreements (including all prior versions of the Local Search Essentials Partner Program Agreement, if any), whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English.

j. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

l. Program Policies. We may change the Program Policies from time to time by updating our website. Your participation in the Partner Program is subject to the Program Policies, which are incorporated herein by reference.

m. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Subscription Service, our trademarks, or any other property or right of ours.

n. Sales by Local Search Essentials. This Agreement shall in no way limit our right to sell our Services and its other products and services, directly or indirectly, to any current or prospective customers.

o. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

p. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Revenue Share and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.