PHONEXA PARTNERSHIP PROGRAM TERMS AND CONDITIONS
Effective Date: May 1, 2022
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING OR PARTICIPATING IN THE PARTNERSHIP PROGRAM, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED HEREIN BY REFERENCE.
This Phonexa Partnership Program Agreement (“Agreement”) is between you (the “Partner) and Phonexa Holdings, LLC (“Phonexa”) and describes the terms and conditions that apply to your participation and use of the Phonexa Partnership Program. If you do not wish to be bound by these Terms, you may not access or use the Phonexa Partnership Program. Certain elements of the Partnership Program may be subject to additional terms and conditions specified from time to time; your use of those elements of the Phonexa Partnership Program is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
During the Term, the Partner may, from time to time, refer an individual or organization (collectively, a “Referral”) to Phonexa to become a “New Client” of Phonexa (to be used interchangeably). The Partner is under no obligation to refer a minimum or maximum quantity of Referrals or New Clients to Phonexa, nor will Phonexa be obligated to accept a minimum or a maximum quantity of Referral or New Clients. Phonexa has the sole discretion, pursuant to the terms set forth herein, to admit a Referral as a New Client.
- Referral Client Criteria.
Each Referral submitted to Phonexa by the Partner under this Agreement shall be required to undergo regular due diligence performed by Phonexa as part of client criteria requirements, appropriate to the type of relationship such Client will have with Phonexa. Upon satisfactory completion of the criteria and approval by Phonexa, the Referral will become a Client for the purpose of this Agreement.
- Phonexa Partnership Portal.
Phonexa may provide Partner an online referral program interface (the “Partnership Portal”). Any use of the Partnership Portal is subject to policies, terms and conditions that Phonexa may establish from time to time, including the policies located at Terms & Conditions.
- Partner Information.
Partner will provide requested information to Phonexa including contact and payment information, and will keep all information accurate and up-to-date through the Partnership Portal. Partner consents to Phonexa using the contact information provided, including email addresses, to contact Partner from time to time.
- Referral Program Code.
Phonexa will provide one or more unique codes to Partner (the “Referral Code”) in which Partner may provide to their Referrals in the form of an internet link, an alphanumeric identifier, or other formats as determined by Phonexa.
- Account Security.
Partner will maintain the confidentiality and security of their Partnership Portal login credentials and will notify Phonexa immediately of any unauthorized access to the account, login credentials, Referral Code, or any other actual or potential breach of security involving the Partnership Portal or this Agreement.
- Grant of Rights.
Phonexa hereby grants Partner a nonexclusive nontransferable license during the term of this Agreement to market and promote the Phonexa Products, Services, Network or platform to prospective referrals or Referrals.
- Phonexa Rights.
During the term of this Agreement, Phonexa may list Partner name, logo or marks on Phonexa’s website as a referral program participant or for any other similar marketing purposes.
- Partnership Program.
The Program contains general information about the Program and describes the Program requirements and benefits. The Partnership Program is incorporated into this Agreement by Phonexa Partnership Program; if there is any conflict between a provision in the Partnership Program and this Agreement, the Partnership Program will govern.
- Program Changes.
Phonexa may modify the Program and the Phonexa Partnership Portal, including but not limited to, any conditions, products, benefits or branding, at any time. The up-to-date version of the Program is available on the Phonexa website. Partner’s continued participation in the Program is subject to Partner’s compliance with such updated Partnership Program. Partner should periodically review the Program Guide to ensure compliance with any updates.
- Program Feedback.
Partner consents to Phonexa contacting Partner (e.g., by email) for any of the following purposes: (a) regarding Program updates relating to the Products; (b) with relevant Phonexa promotional materials, and/or (c) to reasonably request information from Partner about Partner’s business and Referrals as it relates to the Program. Partner represents and warrants that it has obtained the consents necessary for Phonexa to send these communications to its representatives.
- Partner Tools.
Phonexa may make certain Partner Tools via the Phonexa Portal available to Partner. Partner is responsible for complying with, and ensuring that its employees, agents, and representatives comply with, any applicable policies and terms governing access to such Partner Tools.
- Partnership Subject to Approval.
Phonexa may reject or decline to accept Partner or Partnership for any or no reason in its sole discretion.
- Misleading Statements.
Partner will not make any unauthorized, false, misleading or illegal statements in connection with this Agreement, or regarding the Program, Platform or Products. Partner will not make any representations or warranties concerning the such Products on behalf of Phonexa. Phonexa will not be responsible for any representations or warranties made by Partner concerning the Products.
- No Resale.
Except as expressly stated otherwise in this Agreement, this Agreement does not authorize distribution, resale, or supply of any Products or Services.
- Partner Privacy Compliance.
Partner is responsible for maintaining appropriate privacy policies as required in accordance with applicable laws.
- Referral Contact Details.
Partner agrees it will only disclose Referral contact details to Phonexa in connection with this Agreement if it has obtained the appropriate consents from such Referral and/or its representatives, as applicable, to allow Phonexa or a Phonexa-authorized partner to use such details to communicate directly with the Referral for purposes related to Phonexa (or Phonexa authorized partners) soliciting a direct or indirect sales or service provider relationship with such Referral.
- Payment and Taxes
Upon the Referral becoming a New Client, Phonexa will pay the Partner a commission pursuant to the Partnership Program terms. Each Party shall be responsible for any taxes applicable to it which includes but is not limited to any franchise or privilege tax on its business, VAT, and for any tax based on its gross or net income or gross receipts.
This Agreement is entered into as of the Effective Date and will continue until terminated in accordance with these terms (the “Term”).
Phonexa may, in Phonexa’s sole discretion, suspend, disable, or delete Partners account (or any part thereof) or block or remove any user data that Partner submitted, for any lawful reason, including if Phonexa determines that Partner has violated these Terms or that Partners conduct or user data would tend to damage Phonexa’s reputation or goodwill. If Phonexa deletes Partners’ account, Partner may not re-register for or use the Phonexa’s Partnership Platform under any other user name or profile. Phonexa may block access to the Phonexa Platform to prevent re-registration.
- Effect of Termination / Account Deletion.
Upon termination of these Terms all licenses granted by Phonexa will terminate. The following sections survive termination: Privacy (Section 23), Indemnification (Section 26), Disclaimers/Warranties (Section 24), Limitation of Liability (Section 25), Class Action Waiver (Section 27i), Choice of Law/Venue (Section 27g), and all general provisions. In the event of account deletion for any reason, user data may no longer be available and Phonexa is not responsible for the deletion or loss of such user data.
(a) Phonexa and Partner, and either party’s affiliates, and their or their affiliates’ officers, directors, trustees, employees, advisers, agents and other personnel, shall use at least the same care and discretion to prevent disclosure of Confidential Information (as hereinafter defined) of the other party as it uses with similar Confidential Information of its own that it does not desire to disclose, but in no event with less than a reasonable degree of care. Either party may use Confidential Information of the other party in order to carry out its obligations hereunder, but in doing so will only allow dissemination of Confidential Information internally on a need-to-know basis (provided such persons are first informed of the confidential nature of such information and directed to use or disclose it only as permitted herein). If either party must disclose any Confidential Information of the other party as required by law, then that party may make such disclosure after providing the other party with reasonable notice so that the other party may seek protective relief.
(b) Nothing herein shall be construed as granting either party any property rights, by license or otherwise, to any Confidential Information of the other party, or to any invention or any patent, copyright, trademark, or other intellectual property right of the other party except as specifically provided for in this Agreement. Neither party shall make, have made, use or sell any product or service or other item using, incorporating or derived from any of the other party’s Confidential Information except as provided in this Agreement.
(c) The obligations under this Section 5 will survive the Termination Date, but Confidential Information that is not a trade secret will cease to be protected hereunder two (2) years after the Termination Date. On or before the Termination Date, each party will return to the other party all of that other party’s Confidential Information embodied in tangible form, and will destroy, unless otherwise agreed, all such other Confidential Information in that party’s possession.
(d) For purposes of this Section 22, “Confidential Information” means (1) business or technical information or data (oral, written, electronic or otherwise), including, without limitation, a trade secret (as defined under applicable law), of or about a party provided or made available by such party to the other party that is competitively or commercially valuable to that party and not generally known or readily available by legal means to others, and (2) information regarding the existence, content or status of the business relationship described herein. Confidential Information shall not include information which (i) at the time of disclosure, was published, known publicly, or otherwise in the public domain, (ii) after disclosure, is published, becomes known publicly, or otherwise becomes part of the public domain through no fault of the party receiving the Confidential Information, (iii) prior to the time of disclosure, is known by that receiving party or, after disclosure, is independently developed by that receiving party as evidenced by its written records, (iv) after disclosure, is made available to that receiving party in good faith by a third party who is under no obligation of confidentiality or secrecy to the party disclosing the Confidential Information, or (v) information agreed to be disclosed in accordance with Section 22 hereof.
PHONEXA IS PROVIDING THE PLATFORM AND SERVICES TO THE PARTNER “AS IS” AND THE PARTNER IS USING THE PLATFORM AND SERVICES AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PHONEXA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MARKETING SERVICES PROVIDED TO THE PARTNER AND OTHER OBLIGATIONS UNDERTAKEN HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES THAT THE PLATFORM OR SERVICES ARE MERCHANTABLE, RELIABLE, AVAILABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING, FREE OF DEFECTS OR VIRUSES, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE USE OF THE SITES BY THE USER IS IN COMPLIANCE WITH LAWS APPLICABLE TO THE USER, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE PLATFORM OR SERVICES WILL BE SUCCESSFULLY, ACCURATELY, OR SECURELY TRANSMITTED OR RECEIVED. THE MATERIALS AND INFORMATION ON THE SITES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.
- LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF CONFIDENTIALITY AND OBLIGATIONS ARISING UNDER INDEMNIFICATION, PHONEXA WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL PHONEXA’S LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000). THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Partner agrees to indemnify, defend and hold Phonexa, its affiliates and their respective directors, officers and agents harmless, from and against any and all liabilities, damages, losses, costs and expenses, including, but not limited to, reasonable attorneys’ fees and disbursements (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding brought by a third party (each a “Claim”), arising from or relating to (a) the marketing, promotion or use by Partner of the Platform or services in any manner which violates this Agreement, including any unauthorized representations, warranties or guarantees made by Partner concerning the platform or services or any applicable law, rule, or regulation, (b) violation of applicable law, or (c) arising from Partner’s acts or omissions that are inconsistent with this Agreement.
a. No Representations/No Obligation. The Partner makes no representations regarding any Prospect that may or may not become a New Client. Phonexa assumes the burden to perform any due diligence it may desire prior to admitting such Referral as New Client. Phonexa reserves the right to terminate any relationship it has with any Referral or New Client, at any time, with or without cause, without any liability to the Partner.
b. Independent Contractor. The Parties are independent contractors, and the Parties agree that no partnership, joint venture, or agency relationship exists between them. This Agreement does not (i) give either Party the power to direct or control the day-to-day activities of the other Party, (ii) create a principal-agent or employer-employee relationship, or (iii) give either Party the authority to bind the other Party to any contract with a third party.
c. Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of the non-assigning Party. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of the Agreement in violation of the foregoing shall be void.
d. No Third-Party Beneficiaries. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a Party by any third party claiming as a third-party beneficiary of this Agreement.
e. Force Majeure. Neither Party will be liable for any loss or delay resulting from any force majeure event, including but not limited to acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war, military hostilities, or government restrictions. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for more than thirty (30) days, then either Party may terminate this Agreement upon written notice.
f. Modifications. Phonexa reserves the right to modify, update, amend or supplement the terms and conditions of this agreement from time to time. Partner may review such terms and conditions at (Input hyperlink to terms and conditions). If the modified Terms are not acceptable to Partner, then Partners only recourse is to cease using the Phonexa Platform and Services. These Terms may only be modified in writing as set forth in this paragraph and may not be modified orally.
g. Choice of Law/Venue. This Agreement will be governed and will be construed in accordance with the laws of the State of California excluding its conflict of laws principles. Any dispute arising out of or related to this Agreement will be heard by the State or Federal Courts located in Los Angeles County, California.
h. Non-Waiver; Severability. If any portion of the Agreement is stricken as invalid, the remaining portions will remain in full force and effect. Failure of either Party to exercise any of its rights in a particular instance will not be construed as a waiver of those rights or any other rights for any purpose.
i. Class Action Waiver. Each party waives the right to litigate in court or arbitrate any claim or dispute as a class action, either as a member of a class or as a representative.
j. Notices. Any notice or consent under the Agreement will be in writing and delivered personally, by nationally-recognized overnight delivery service, or by prepaid registered or certified mail, addressed to the addresses set forth in the preamble and below the signature line hereto or at such other address as a Party may from time to time designate. Notice is deemed delivered on: (i) the date of actual personal service; (ii) the business day after delivery of overnight delivery; or (iii) the date of delivery via registered or certified U.S. mail. To the extent not prohibited by Applicable Law, a Party may, at its option, use electronic communications to provide the other Party with any notice or consent hereunder.
k. Entire Agreement. This Agreement, including information incorporated by reference into this Agreement, constitutes the entire understanding of the Parties with respect to Partner’s participation in the Partnership Program and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding Partner’s participation in the Program. If any provision of this Agreement is declared to be invalid or unenforceable, the other provisions of this Agreement remain in full force and effect.
If you have questions or concerns about these Terms, you can contact us via e-mail at email@example.com; or by writing to us via certified mail to 505 N Brand Blvd. 16th Floor, Glendale, CA 91203. You may also contact us toll-free at (818) 800-0000 or facsimile at (818) 484-2733.