“Affiliate” means any entity Controlling, Controlled by, or under common Control with a Party.
“Control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of an entity. An entity shall be deemed an Affiliate only for so long as such Control exists.
“Appropriate Security Measures” means commercially reasonable technical, physical, and procedural controls designed to (i) protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by Impartner, and (ii) prevent the introduction of malicious code into the Licensed Services.
“Customer Data” means all electronic data, content, or information submitted by Portal Users to Impartner in connection with Impartner’s provision of the Licensed Services or Support Services.
“DPA” means the data processing addendum available at https://impartner.com/data-processing-addendum/, and is incorporated into the Agreement by reference herein.
“Documentation” means product descriptions found at https://impartner.com/packages-prm/, which may be updated from time to time by Impartner in its sole discretion. For clarity, as a SaaS provider with standard offerings, the Documentation is intended solely to provide objective criteria for the Parties to agree in advance what constitutes adequate delivery of the Licensed Services. Impartner’s products and services may change over time as Impartner improves its products and services, and the Documentation is not intended to restrict Impartner from so improving its Licensed Services.
“Impartner Materials” means materials made available by Impartner to Customer via the Licensed Services, Support Services, or customer success portal, and includes, without limitation, how-to guides, training content, and FAQs.
“Implementation Services” means work performed by Impartner for initial installation and configuration of the Licensed Services in accordance with an Order Form.
“Licensed Services” means the online, cloud-based software applications, modules and associated content and materials (including Impartner Materials incorporated therein) provided by Impartner to Customer as set forth in an Order Form, as well as any updates, upgrades, improvements, enhancements, integrations or customizations which Impartner may develop and make available to Customer in its sole discretion, but excluding Third-Party Applications.
“Order Form” means the order form, order form amendment, or order form renewal signed by the Parties that sets forth the pricing, Services, Use Limits, applications and modules selected by Customer, along with any Support Services.
“Partners” means Customer’s resellers, channel partners or other members of Customer’s partner networks that provide services and/or sell products or services on behalf of Customer.
“Personal Information” has the meaning ascribed to it under the California Consumer Privacy Act of 2018 (the “CCPA”), and specifically includes “Personal Data,” as defined by Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”).
“Portal Users” means employees or agents of Customer or a Partner who are authorized to access and use the Licensed Services, and who have been supplied user identifications and login credentials by Customer (“User Credentials”).
“Premier Support” means additional support services that supplement the Standard Support Services, purchased on an annual basis, that may include a dedicated Technical Account Manager, as further described in an Order Form.
“Professional Services” means billable, professional services related to custom functionality, training after implementation, integration with or fixes related to use of the Licensed Services with Third-Party Applications, as outlined in an Order Form that delineates the specific scope of services.
“Standard Support Services” means Impartner’s support ticketing and response system for the Licensed Services’ standard product capabilities as further set forth in the service level agreement available at Impartner Service Level Agreement (PDF) (the “Service Level Agreement”), and is incorporated into this Agreement by reference herein. Standard Support Services are included as part of the Subscription Fees at no additional cost to Customer.
“Support Services” means all services offered to Customer other than the Licensed Services, and includes the Standard Support Services, Premiere Support, Implementation Services, and Professional Services.
“Third-Party Applications” means any services, software, products, applications, integrations and other features or offerings that are provided by Customer or obtained by Customer from a third party.
2. THE LICENSED SERVICES
2.1 Provision of the Licensed Services. Subject to Customer’s compliance with the terms and conditions of the Agreement (including payment of the applicable Fees (as defined below)), Impartner shall make the Licensed Services available to Customer, Partners, and Portal Users for internal business purposes during the Term.
2.2 Affiliates. A Customer may enter into an Order Form on behalf of itself and its Affiliates, if expressly stated in the applicable Order, and subject to the following conditions: (i) Customer has the authority to enter into the Agrement on behalf of its Affiliates; (ii) Customer remains responsible for its Affiliates’ compliance with the terms of the Agreement and any breach of the Agreement by a Customer Affiliate shall be deemed to be a breach by Customer; (iii) all use limits, as described in the Order Form, and other platform-related limitations of Customer arising from the Agreement shall be applied in the aggregate across Customer and all Customer Affiliates. Notwithstanding the foregoing, Customer is solely entitled to a single instance of the Licensed Services, unless expressly set forth in an Order Form. If additional instances are required, for any reason, including for an Affiliate to have unique functionality independent from the Customer’s instance, additional implementation and/or subscription fees will apply, or the Affiliate may be required to enter into a separate Order Form.
2.3 Licensed Services Requirements. Impartner may make changes (including updates, updates, or other improvements) to the Licensed Services, on the condition that such changes do not materially diminish the features or functionality of the Licensed Services or the commitments set forth in the Service Level Agreement. Customer acknowledges, however, that its purchase of the Licensed Services is for the current version of the Licensed Services, and not contingent on the delivery of any future functionality or features, nor dependent on any oral or written comments made by Impartner or its personnel regarding future functionality or features.
2.4 Third-Party Applications. Impartner does not offer licenses to any Third-Party Applications. Customer is responsible for obtaining its own licenses to Third-Party Applications, and Customer agrees to comply with the applicable terms and conditions. Impartner does not make any warranties with respect to any Third-Party Applications. Except for Impartner’s obligations related to Google Ads for Channel (if applicable) Customer maintains all obligations related to the implementation, customization, and exchange of data between Customer and any Third-Party Applications.
Third Party Applications may offer Customer the ability to share Customer Data with Third-Party Applications (for example, through a marketplace, via application program interfaces (each an “API,” or collectively, “APIs”), or otherwise). In the event Customer utilizes Third Party Applications to access or process Customer Data, Customer assumes all risk and liability with such access and processing. Impartner is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third Party Applications. Impartner may treat any requests to access Customer Data by Third Party Applications as written instructions by Customer to access Customer Data, so long as such access requires authentication to Impartner’s platform using Customer’s login credentials to the Licensed Services.
2.5 Google Ads for Channel. This Section applies if Customer purchases Impartner’s Google Ads for Channel. Impartner will create a Google Ads account to establish and run Partners’ advertising campaigns (“Campaigns”) on the Partners’ behalf. Portal Users will not have access to Google Ads accounts that Impartner creates. All campaigns that run through Google Ads for Channel must comply with, and are subject to, the Google Ads Terms & Conditions. Impartner will not commence a Campaign until Impartner has received payment in full for that Campaign. Any fees paid for Google Ads ad campaigns will not count towards the limits of liability delineated in this Agreement.
2.6 Rewards Services
2.6.1 General. This Section titled Rewards Services applies solely if Customer is buying Ignite Pro, MDF, Payment Processing Engine, Payments Manager, or Referral Automation Programs (collectively, “Rewards Services.”) Customer will be responsible for providing all necessary information required for Impartner to provide the Rewards Services, such as reward amount(s) (“Rewards“), reward recipient (“Rewards Recipient”), and method of calculating and issuing the Rewards (“Calculation Method”). Impartner will calculate the amount of the Rewards to be paid to each Rewards Recipient based upon the most recent Calculation Method provided by Customer. The minimum amount for any individual Rewards to be paid to a Rewards Recipient is one hundred dollars ($100). If Customer approves Rewards less than one hundred dollars ($100), Impartner may, in its sole discretion, charge Customer a per/transaction fee of twenty five dollars ($25). Rewards will only be issued to Rewards Recipients after Customer approves such Rewards within the Licensed Service. Impartner will only process approved Rewards once it receives the funds necessary to pay such Rewards. Any unused, prefunded Rewards will be returned to Customer within thirty (30) days of the termination or expiration of this Agreement. If Rewards are paid to Rewards Recipients in a currency other than the currency in which the funds are paid to Impartner, exchange rates will be calculated using the prevailing rate of the Payment Processor applicable at the time Rewards payments are made.
2.6.2 Payment Processors. Impartner may utilize the services of one or more third-party payments processors (each a “Payment Processor“) to process Rewards payments. Impartner shall have no liability for the acts or omissions of third-party Payment Processors, including any rejected payments or payment delays. Impartner reserves the right to charge Customer for any transaction fees associated with wire investigations, insufficient funds, return payments, generation or mailing of end-of-year Form 1099s or other tax statements. For clarity, unless expressly agreed otherwise in writing, Impartner does not issue Form 1099s for Customer or Rewards Recipients.
2.6.3 Rewards Indemnification. Customer agrees to indemnify, defend, and hold Impartner and its Payment Processors harmless from and against all losses, damages, liabilities, costs, and expenses resulting from any claims or actions arising out of any actual or alleged violation of Customer’s obligation to report taxes associated with the Rewards. This obligation shall not be subject to any limitation of liability set forth elsewhere in the Agreement.
2.6.4 Rewards Compliance with Law. Customer is solely responsible for determining if a Reward payment or designated Rewards Recipient receiving a Reward would violate any provision of any present or future risk control program of the Federal Reserve, Office of Foreign Assets Control (OFAC) policy, Presidential Order, Financial Industry Regulatory Authority (FINRA) policy, any anti-money laundering (AML), anti-terror regulations, other applicable law, or the rules of the NACHA, Electronic Check Clearing House Organization, card associations, clearinghouses, networks and/or other associations which regulate Rewards transactions.
3. PERMITTED USE OF THE LICENSED SERVICES
3.1 Use of Licensed Services. Customer shall: (i) not make the Licensed Services available to anyone other than those authorized under this Agreement; (ii) not use the Licensed Services in any manner that exceeds the scope of the applicable Order Form; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Licensed Services; (iv) promptly notify Impartner of any unauthorized access or use of the Licensed Services, passwords, authentication credentials, or any unauthorized use, access, or disclosure of Customer Data; (v) comply, and cause its Portal Users to comply, with the Agreement, and be solely responsible for its Portal Users’ compliance with this Agreement; (vi) be solely responsible for all Customer Data, including the reliability, accuracy, completeness, timeliness, legality, and appropriateness of the Customer Data; (vii) secure and maintain any consents or permissions required to use the Customer Data as required by applicable law; (viii) ensure that the Customer Data does not infringe the rights of any third party, and is not otherwise obscene, threatening, defamatory, racially or ethically offensive, libelous, fraudulent or otherwise unlawful or tortious; (ix) not use the Licensed Services to send or store known viruses, worms, time bombs, Trojan horses, and other harmful, destructive, deceptive or malicious code, files, scripts, agents or programs; and (x) comply with all local, state, federal and foreign laws applicable to Customer’s use of the Licensed Services. Customer may not provide user login credentials to any individuals or entities other than Third Party Applications. In the event Customer shares its login credentials, and/or Customer Data with one or more Third Party Applications, Customer shall be responsible for all actions performed by the Third Party Applications, including API calls to share Customer Data with Third Party Applications, and any such API calls will be considered actions performed by Customer.
3.2 Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Portal User to: (i) copy, modify or create derivative works based on the Licensed Services; (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part of the Licensed Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Licensed Services, in whole or in part; (iv) intentionally disable, interfere with, or disrupt the integrity or performance of the Licensed Services; or (v) access or use the Licensed Services in order to build (or assist others in building) a competitive product or service or in any manner beyond the scope of the authorization granted herein.
3.3 Two Factor Authentication. The Licensed Services support access using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Licensed Services. Impartner strongly encourages Customer to use, and cause its Partners and Portal Users to use 2FA. Impartner disclaims all responsibility for any damages, losses or liability to Customer, Partners, Portal Users, or any other affected individuals, where such damages, losses, or liability could have been prevented by the use of 2FA.
3.4 Service Suspension. Notwithstanding anything to the contrary in the Agreement, Impartner may suspend Customer’s and/or any Portal User’s access to any portion or all of the Licensed Services if: (i) any charge owing by Customer is thirty (30) days or more overdue, until such amounts are paid in full; (ii) Impartner reasonably determines that: (A) Customer’s or any Portal User’s use of the Licensed Services disrupts or poses a security risk to Impartner or to any other customer or vendor of Impartner; or (B) Customer, or any Portal User, is using the Licensed Services in breach of the Agreement or in violation of applicable law; (iii) Customer ceases to do business in the ordinary course, becomes insolvent or unable to pay debts as they become due, makes an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding (each, a “Bankrupty Event”); (iv) any vendor of Customer, or Google Ads (if Customer is buying Google Ads for Channel), has denied Impartner’s access to, or use of, any Third-Party Applications needed to enable Customer’s access to or use of the Licensed Services; or (v) Impartner’s provision of the Licensed Services to Customer is or becomes prohibited by applicable law. Any suspension described in subclause (i)-(v) is a “Service Suspension.” Impartner shall use commercially reasonable efforts to promptly provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Licensed Services following any Service Suspension. Impartner shall use commercially reasonable efforts to resume providing access to the Licensed Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Impartner will have no liability for any damage, liabilities, losses (including any loss of data or profits) that Customer may incur as a result of a Service Suspension. Customer’s sole remedy for any Service Suspension made pursuant to 3 shall be a pro rata refund of any pre-paid Fees.
13. GENERAL PROVISIONS
13.1 Export Compliance; Sanctioned Countries. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Licensed Services. Without limiting the foregoing, each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not permit Portal Users to access or use the Licensed Services in violation of any U.S. export embargo, prohibition or restriction. Furthermore, Customer represents and warrants that (i) all Portal Users are prohibited from residing in, or operating from, any country that is sanctioned by either the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the United Nations Security Council (“Prohibited Countries”), and (ii) it will not knowingly permit any data pertaining to residents of any Prohibited Countries be processed by the Licensed Services, including by prohibiting Portal Users from processing any such data via the Licensed Services.
13.2 Force Majeure. Except with respect to the payment of Fees hereunder, neither Party shall be liable to the other Party for a failure or delay in performing any obligation hereunder that is directly caused by conditions beyond that Party’s reasonable control, including acts of God, Pandemic (as defined below), war, terrorism, civil commotion, strikes, labor disputes and governmental actions or restriction (“Force Majeure Event”), provided the Party seeking to be excused from performance promptly notified the other Party of the Force Majeure Event, takes commercial reasonably action to mitigate the effects of the Force Majeure Event, and promptly resumes performance when the Force Majeure Event has subsided. When a Party’s delay or non-performance continues for a period of thirty (30) days or more, the other Party may terminate the Agreement without penalty. Any prepaid amounts shall be refunded on a prorated basis. “Pandemic” shall mean a global transmissible health emergency as declared by the World Health Organization that results in specific governmental restrictions that makes the performance of a party’s obligations under this Agreement illegal or impossible. The parties expressly agree that the novel coronavirus Covid-19 pandemic, ongoing as of the date of the execution of this Agreement, is not a Force Majeure Event.
13.3 Relationship of the Parties. The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between them.
13.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
13.5 Notices. Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and delivered to the addresses set forth on the first page of the Agreement and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after overnight delivery, or (iii) receipt of acknowledgment by recipient if sent by email. Any legal notices sent to Impartner by email must additionally be sent to [email protected], and any notices sent by email related to invoices or billing must additionally be sent to [email protected].
13.6 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.7 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect.
13.8 Assignment. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under this Agreement will be void.
13.9 Governing Law; Venue. The Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Utah, without regard to its conflicts of laws rules. The state and federal courts located in Salt Lake City, Utah shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
13.10 Entire Agreement. The Agreement, including all Exhibits or addenda incorporated by reference herein, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of conflict between the Order Form, the order of precedence shall be: (i) DPA, if applicable, (ii) other Exhibits, including the SLA, (iii) Order Form, and then (iii) the MSA. No modiﬁcation, amendment, or waiver of any provision of the Agreement shall be effective unless in writing that speciﬁcally references the Agreement and is signed by the Party against whom the modiﬁcation, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.