The “Effective Date” of this Agreement is the date on which the You sign up for the Partnership Program.
The terms of the Partnership Program (“Agreement”) is entered into by and between Zimyo and the person or entity signing up for the Partnership Program (“Affiliate Partner/Referral Partner/You”). Both parties agrees to the following terms and conditions:
1. Purpose. Subject to the terms and conditions of this Agreement, Zimyo hereby grants to Affiliate/Referral Partner during the term a limited, non-transferable, revocable and non-exclusive right to market and refer Zimyo’s Products or Solutions to prospective customers.
2. Scope of the Referral Process
(i) Qualified Referrals. Affiliate/Referral Partner is eligible to receive a referral commission only if Affiliate/Referral Partner submits a referral to Zimyo which meets the requirements set forth under this Agreement (“Qualified Referral”). Zimyo shall, at its sole discretion, decide whether a referral constitutes a Qualified Referral. For Zimyo, a referral will only be considered a Qualified Referral only when it has the following details:
(ii) Negotiation Rights. Affiliate/Referral Partner shall not negotiate terms or make any commitments on behalf of Zimyo. Zimyo shall collect the applicable subscription charges for the Zimyo Products directly from the Customer.
(iii) Eligible Product Plans. Affiliate/Referral Partner shall be entitled to a commission only if a Qualified Referral turns into a paying Customer of Zimyo within three (3) months from the date a referral is submitted by the Affiliate/Referral; Partner (“Conversion Period”) and with a subscription term equal to or greater than three (3) months. On a case-by-case basis, the parties may mutually agree in writing to waive or extend the Conversion Period for a Qualified Referral.
(iv) Eligible Products. All Zimyo products are eligible for referrals. Zimyo reserves the right to add, delete or modify any of its Products at its sole discretion.
(v) Ineligible Referrals. When someone subscribes to a Zimyo Product(s) pursuant to the Affiliate/Referral Partner’s sales and marketing efforts in accordance with this Agreement, Zimyo shall, at its sole discretion determine if such subscriber is a Qualified Referral. Referrals ineligible for a referral commission are set forth in the below table.
Referrals who are Zimyo’s existing Customers prior to the referral are not eligible to receive referral commission.
Referrals that convert into leads that are materially the same (i.e., same customer, same products) as opportunities that are in Zimyo’s or Zimyo’s resellers active sales process at the time of the referral or were in process during the sixty (60) days prior to the referral submission, are not eligible for referral commission.
Fees for support, implementation, customization, training, consulting or other professional services, or for referring third-party products or services are not eligible for referral commission.
Revenue Beyond First Year
Customers with a term of more than one year are only eligible for referral commission with respect to the First Year Net Revenue.
Failure to Follow Process
Referrals where the Affiliate/Referral Partner has failed to follow the process set out in this agreement are not eligible for referral commission.
Referrals referred by Affiliate/Referral Partner are not eligible for referral commission where (i) the referred lead is the Affiliate/Referral Partner itself or an entity that the Affiliate/Referral Partner owns or is an employee in; or (ii) where the referred lead is an affiliate of the Affiliate/Referral Partner. If the Affiliate/Referral Partner makes a self-referral Zimyo may, at its discretion, terminate this Agreement and cease paying commissions for such self-referral.
Referrals submitted by the Affiliate/Referral Partner without using the Referral Link or before signing up for the Affiliate/Referral Program are not eligible to receive any commissions under this Agreement.
(vi) Commission. Referral Partner shall be entitled to receive a commission of $10 for every Qualified Referral. Upon a Qualified Referral becoming a Customer of Zimyo, Affiliate Partner shall be eligible to a commission of 20% of the monthly recurring revenue on invoice amounts realized by Zimyo from the Customer till 4 years or till the end of customer(whichever is earlier).
(vii) First Year Net Revenue. Once a Qualified Referral becomes a paying Customer, the Affiliate Partner is entitled to receive a referral commission for the next twelve (12) months; provided however, if the Customer’s subscription to the Zimyo Product is terminated before the end of the 12-month period, Affiliate Partner will not be entitled to any commission following the date of such termination. The referral commission is based on the applicable referral commission rate applied on all invoice amounts realized by Zimyo for eligible Zimyo Products associated with such Qualified Referral including without limitation, net of any discounts, taxes payable and subsequent refunds not attributable to Zimyo’s invoicing error or breach. (“First Year Net Revenue”). If an order executed in connection with a referral is a multiyear order, referral commission will be based only on the First Year Net Revenue, and not on any revenue covering any period thereafter.
(viii) Payment Process. Zimyo will calculate referral commission for each Qualified Referral on a monthly basis, and such commission will be disbursed to the Affiliate/Referral Partner’s Bank Account within 30 days from the date of receipt of invoice amounts from the Customer. Affiliate/Referral Partner can realize the commissions paid by Zimyo in accordance with the terms and conditions applicable on the usage of its Bank Account. Once the commission is processed at Zimyo’s end, Zimyo shall not be responsible for any failure of the Affiliate/Referral Partner to realize the commission amounts from its Bank Account. Bank shall be solely responsible to provide technical support to the Affiliate/Referral Partner for access and usage of their Bank Account.
(ix) Referral Commission Refunds. If Zimyo makes a referral commission payment to Affiliate/Referral Partner in error, or if a Qualified Referral fails to make required first-year subscription charge payments to Zimyo within sixty (60) days of the payment due date, or if the applicable contract between Zimyo and the Qualified Referral is terminated before its agreed upon expiration date, Zimyo shall be entitled to a refund of the corresponding referral commission payments made to such Affiliate/Referral Partner (provided that if a non-paying customer does ultimately pay all amounts due, Zimyo will repay Affiliate/Referral Partner the applicable commissions minus a deduction for collection and administrative costs, not exceeding half of the total commission). Zimyo may, in its sole discretion, choose to either offset such refundable amounts against commissions Zimyo works owes to Affiliate/Referral Partner hereunder, or invoice Affiliate/Referral Partner for the refundable amounts; invoiced amounts are due and payable within thirty (30) days of the invoice date. Zimyo’s right to a refund of which Zimyo has not notified Affiliate/Referral Partner will expire ninety (90) days after the one-year anniversary of the start date of the applicable order.
3. Affiliate/Referral Partner Responsibilities
(i) Affiliate/Referral Partner represents and warrants that it shall (a) not send unsolicited communications, junk email, spam or other forms of duplicative or unsolicited messages to leads, (b) not use banners or links on newsgroups, chatrooms, message boards, banner networks, hit farms, guest books etc., (c) not run any pay-per-click campaigns bidding on Zimyo brand related keywords, (d) not have more than one (……….) Account, (e) use only materials given by Zimyo for Affiliate/Referral Partner’s sales and marketing efforts, (f) not engage in excessive telemarketing activities for promoting Zimyo Products, (g) not promote Zimyo on sites containing unlawful, hateful, abusive or pornographic content, and (h) adhere to Zimyo’s Business Partner Standards of Conduct located at the URL (……….) “Standards”) and all applicable laws in the performance of its obligations under this Agreement.
(ii) Onboarding and Support: Pursuant to signing up for the Partnership Program, Zimyo may send the Affiliate/ Referral Partner various collaterals about the Zimyo Products that Affiliate/Referral Partner may use for marketing activities in accordance with this Agreement. Zimyo may also, from time to time, conduct various webinars and other training programs as Zimyo deems fit to assist the Affiliate/Referral Partner in fulfilling its obligations under this Agreement.
(4) Intellectual Property Rights. Zimyo and its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Zimyo Products.
(5) Marketing: Zimyo hereby grants Affiliate/Referral Partner, a term based, territory based, revocable right to display, publicly perform and publish Zimyo trade name, logo or trademark (“Marks”) solely with regard to the promotion of the Zimyo Products to potential customers. While in exercise of rights under this license, it shall be the responsibility of Affiliate/Referral Partner to ensure that (a) the Marks are used only to denote the origin and ownership of Zimyo Products, (2) it will comply with Zimyo’s effective policies (current or updated version thereof) relating to the use of its Marks, and (c) it shall not materially modify the marketing materials provided by Zimyo in any way that causes Affiliate/Referral Partner to misrepresent the technical capabilities, features or functions of the Zimyo Products. It is clarified that Affiliate/Referral Partner will not, by virtue of the foregoing license, acquire any right, title or interest in Zimyo’s Marks or Products and all rights thereto are reserved by Zimyo.
(6) Confidentiality. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. To the extent the information shared under this Agreement constitutes personal data as defined under applicable data protection laws, both Affiliate/Referral Partner and Zimyo will comply with the same. Any personal data of the Affiliate/Referral Partner that Zimyo may receive shall be processed in accordance with its Privacy Notice which is included herein by reference.
(7) Term and Termination. This Agreement will continue until either party terminates this Agreement. Zimyo may terminate this Agreement at any time without cause and without liability upon intimation to the Affiliate/Referral Partner. Affiliate/Referral Partner may terminate this Agreement upon sixty (60) days written notice to Zimyo. Zimyo may also immediately terminate this Agreement for (i) any breach of this Agreement by the Affiliate/Referral Partner, (ii) breach of Section 3 (i) of this Agreement, or (iii) bringing in spam leads or failing to bring in sufficient Qualified Referrals who turn into paying Customers during the term of this Agreement.
Effect of Termination. Upon termination of this Agreement, (a) Affiliate/Referral Partner agrees to cease all marketing and promotional activities and all further use of the Zimyo Product, and (b) the parties shall return or confirm destruction of the other party’s Confidential Information provided pursuant to this Agreement.
(8) Disclaimer: Zimyo may provide links or access to third party software or services. The use of any such third-party software and services are governed by the terms of the third-party provider and are binding on Affiliate/Referral Partner. Zimyo does not provide any warranties and has no liability or obligations to the Affiliate/Referral Partner, with respect to usage of such third-party software and services.
(9) Indemnification. Affiliate/Referral Partner will indemnify and hold Zimyo and its affiliates harmless against any claim brought by a third party against Zimyo and its respective employees, officers, directors, and agents arising from or related to use of the Marks by Affiliate/Referral Partner in breach of this Agreement.
(10) Limitation of Liability
10.1 NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE,), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS ON EITHER PARTY’S LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
10.2 Zimyo’s AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE COMMISSION PAID TO AFFILIATE/REFERRAL PARTNER BY Zimyo IN THE 12 (TWELVE) MONTHS PRECEDING THE CLAIM.
THE FOREGOING STATES THE ENTIRE LIABILITY OF EACH PARTY WITH REGARD TO THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER.
11. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of India, without regard to conflict of laws principles. Any dispute or claim arising out of or relating to this Form shall be determined by arbitration in India. The arbitration shall be administered by High Court of Haryana pursuant to its arbitration rules and procedures.
(i) Injunctive Relief: The Affiliate/Referral Partner expressly agrees that Zimyo shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Affiliate/Referral Partner. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Zimyo may otherwise have under law.
(ii) Non-solicitation: During the Term and one (1) year thereafter, Affiliate/Referral Partner shall not, either directly or indirectly, (1) engage with a Zimyo Employee outside the scope of this Agreement; or (2) induce a Zimyo employee to terminate their employment. “Zimyo Employee” shall mean and include the Employees or consultants of Zimyo, its subsidiaries and affiliates.
(iii) No Assignment: Except to its affiliates and/or within group companies, neither Party shall assign any part of this Agreement or its respective rights or obligations under this Agreement without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
(iv) Modifications: From time to time, Zimyo may modify this Agreement. Unless otherwise specified by Zimyo, changes become effective for Affiliate/Referral Partner after the updated version of this Agreement goes into effect.
(v) Severability; No Waiver: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain in effect. Delay or non-exercise of any right under or provision of this Agreement by either party does not constitute a waiver of that right or provision of this Agreement.
(vi) Survival. Sections 4 (Intellectual Property), 5 (Marketing), 6 (Confidentiality), 9 (Indemnification), 10 (Limitation of Liability), 11 (Governing Law), 12 (vi) (Survival), 12 (vii) (Notices), 12 (ix) (Entire Agreement) and will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
(vii) Relationship between the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
(viii) Notices: All notices to be provided by either Party to the other under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by the parties.
(ix) Entire Agreement: This Agreement, together with Zimyo’s Business Partner Standards of Conduct constitutes the entire agreement and supersede any and all agreements between Zimyo and Affiliate/Referral Partner with regard to the subject matter hereof.
13.1 Customer means a Qualified Referral that has entered into an agreement with Zimyo to procure the Zimyo Product pursuant to the Affiliate/Referrals Partners marketing and promotional activities under this Agreement.
13.2 Partnership Program means the program initiated by Zimyo where entities and persons who sign up as Affiliate/Referral Partners are required to market and refer eligible Zimyo Products to prospective customers in consideration for a commission from Zimyo