Referral Partner Agreement


OVERVIEW

This Partner Agreement ("Agreement") is made and entered into by and between Waitwhile and Partner (each, as defined below). The Agreement shall become binding once You complete and return the Waitwhile Referral Partner Program Form ("Form") to indicate Your acceptance of this Agreement, and receive an email confirmation from Waitwhile indicating that the Form and Agreement have been received and processed by Waitwhile (the "Effective Date"). Waitwhile and Partner are sometimes referred to as a "Party", and together as the "Parties."

As used in this Agreement, the following terms shall have the meanings set forth below:

Waitwhile

"Waitwhile." means Waitwhile, Inc. a U.S., State of Delaware company with corporate offices in San Francisco, California

1595 Pacific Ave, Apt 508, San Francisco, CA 94109

  • Contact Name: Christoffer Klemming
  • Telephone: +1650-960 6879
  • Email: christoffer@waitwhile.com

For legal notices, provide copies to: Waitwhile - Legal Department; hello@waitwhile.com

Partner

"Partner" or "You" means the person or company (including Company Name and other information) detailed in the Form submitted to Waitwhile

Term

"Term" shall mean the "Initial Term" and all "Renewal Term(s)" thereafter (each, as defined in Section 4 of the Business Terms).

BUSINESS TERMS

Background

Waitwhile, Inc. was founded in 2016. Waitwhile's mission is to improve the waiting experience of every queue in the world to "make every wait worthwhile".

Waitwhile is a cloud-based customer queue management system built to scale for the most demanding customer queues at minimal costs. It provides a user-friendly interface, self-serve check-in kiosk, customizable waitlist settings, insightful analytics and real-time sync - without any IT investments or physical integration needs for your customer.s You can set up and operate your Waitwhile customer queue in minutes from any smartphone, tablet or computer with industry-grade security - to provide customers a truly delightful waiting experience.

Partner wishes to promote, market and advertise the Waitwhile Service to potential Waitwhile customers ("Referrals") through its website(s) and other marketing channels, in accordance with Waitwhile's Partner Program ("Program") detailed in this Agreement.

Agreement

The Parties agree as follows:

    1. License
    2. Subject to this Agreement and its terms, Waitwhile hereby grants to Partner a free, non-exclusive, non-transferable and revocable license ("License") to market and distribute the Waitwhile Service to Referrals, and to use the Waitwhile trademarks, logos and URLs provided by Waitwhile and listed in Exhibit A ("Licensed Marks," as may be amended by Waitwhile from time to time), and associated materials, language or code for the sole purpose of promoting the Waitwhile Service (collectively, "Marketing Materials").
    3. The license to use the Licensed Marks granted herein is subject to Waitwhile's Trademark Usage Guidelines ("Guidelines") (which can be found at https://waitwhile.com/terms, incorporated here by reference, as updated from time to time by Waitwhile at its sole discretion. Waitwhile may revoke this license at any time by giving Partner a written notice (including via email). A complete list of Waitwhile's trademarks and logos ("Waitwhile Marks") is included in the Guidelines.
    1. Program Commitments
    2. The Program. To participate in the Program Partner must complete the online application for participation in the Program found on Waitwhile's website ("Site") and enter this Agreement. Waitwhile may accept or reject any application at its sole discretion.
    3. Legal Agreements. As part of its participation in the Program and in acting as Waitwhile's Partner, Partner hereby agrees and consents to the terms of this Agreement and the Program, the Guidelines, and any other requests and rules set by Waitwhile from time to time, in its reasonable discretion, in connection with Partner's ongoing participation in the Program and promotion of the Waitwhile Service to Referrals. In all its activities under this Agreement, and specifically such activities relating to Partner's promotion of Waitwhile Service, Partner shall cooperate with Waitwhile and act in good faith. In entering this Agreement Partner further recognizes and accepts the terms and rules set in Waitwhile's Terms of Service ("Terms," found at https://waitwhile.com/terms) and Waitwhile's Privacy Policy ("Privacy Policy," found at https://waitwhile.com/privacy), as applicable to Waitwhile's provision of the Waitwhile Service to Referrals, and particularly regarding Partner's adherence to the Privacy Policy in all matters involving privacy of Referrals' information.
    4. Promotion, Referral Activities: Partner agrees to engage in continued, active promotion of the Waitwhile Service in various marketing channels using the Licensed Marks and Marketing Materials, and do so in compliance with the terms of this Agreement.
    5. Prohibited Activities. Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Waitwhile's sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients ("Spamming") in promoting the Waitwhile Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.
    6. Permissible Use of Waitwhile Marks.
      1. Partner expressly agrees to comply with all the terms herein (particularly Section 5(c)) in using the Licensed Marks and in creating Marketing Materials.
      2. Through the Guidelines and otherwise, Waitwhile shall provide specifications and other instructions from time to time as to Partner's permissible use of the Licensed Marks in creating Marketing Materials and promoting the Waitwhile Service. Partner further agrees to comply with all such specifications and instructions.
      3. Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Waitwhile in the Guidelines or otherwise, shall not modify any Waitwhile Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by Waitwhile, and shall further comply with reasonable instructions from Waitwhile as to the form, content and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by Waitwhile, the license granted herein shall expire and Partner shall immediately cease all its activities under this Agreement.
    7. Partner shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Partner's operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Waitwhile Mark violates a third party's trademark rights, Waitwhile is not responsible for the development, operation or content of Partner's Marketing Materials and Partner agrees to defend, indemnify and hold Waitwhile harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner's Marketing Materials.
    8. Customer Relations. During and after the Term, Waitwhile shall be the exclusive owner of all relations created via Partner among Waitwhile and Referrals with respect to the Waitwhile Service, including any and all information identifying Referrals who contract with Waitwhile for the use of the Waitwhile Service. The Terms, Privacy Policy, and Waitwhile's rules and procedures for the Waitwhile Service will apply to these Referrals and may be changed by Waitwhile without prior notice to Partner, and Partner agrees to convey to Referrals the nature of their relations with Waitwhile under the Terms.
  1. Qualified Referrals, Commissions.
    1. "Qualified Referrals" mean Referrals (i) referred by Partner to Waitwhile and who complete the sign-up procedure in accordance with the procedure described in Section 3(b) below; (ii) of whom Waitwhile has no record in connection with the Waitwhile Service, or who are not, at the time referred to Waitwhile by Partner, in any contractual relations or ongoing negotiations with Waitwhile in connection with the Waitwhile Service; (iii) who accept the Terms and acquire, at a Referral's own discretion and without receiving any monetary or other incentive from Partner, subscription of any of the following Waitwhile Service plan bundles: (A) Starter Plan, (B) Business Plan, or (C) Enterprise Plan at https://waitwhile.com/pricing); and (iv) who are not rejected by Waitwhile, and make at least one payment to receive the Waitwhile Service.
    2. Referral Procedure. Each Referral shall be referred to Waitwhile by Partner through an online form provided by Waitwhile to Partner, which Partner shall fully complete and submit to Waitwhile ("Referral Form"). Upon receiving each Referral Form, Waitwhile shall send an email to the Referral's email address indicated in the Referral Form, detailing the steps to be taken towards registration to receive the Waitwhile Service and becoming a Qualified Referral. Waitwhile shall be responsible for the sales process to all Referrals, subject to the Parties' continued good-faith cooperation in promoting the sales process to Referral. 3.
      1. Waitwhile shall collect all fees from Referrals for the Waitwhile Service directly from Referrals.
      2. Referral Fees. Upon a Referral becoming a Qualified Referral, Waitwhile shall pay Partner referral fees in arrears at the applicable percentage of the fees listed on waitwhile.com/referrals payable by the Qualified Referral pursuant to their initial order under the Terms for the first year of the associated subscription ("Referral Fees"). The Referral Fees shall be calculated based on the net Qualified Referral Subscription Fees after any discounts. For initial orders that have subscription terms in excess of one (1) year, Referral Fees payable with respect to the first year shall be determined proportionately to the total Subscription Fees payable pursuant to the initial order. For clarity, Partner shall only receive Referral Fees on Qualified Referral's initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Qualified Referral. Such Referral Fees shall become payable and be paid to Partner within ninety (90) days of the end of the calendar quarter in which Subscription Fees attributed to such Qualified Referrals are paid to Waitwhile. If a Qualified Referral terminates Service prior to one year after becoming a Qualified Referral, Partner will only receive a pro-rata portion of the Referral Fees for the year in proportion to the Subscription Fees paid by Qualified Referral to Waitwhile.
      3. Associated charges. Partner shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Waitwhile harmless from and against any claims arising out or relating to all charges emanating from Waitwhile's payment of Referral Fees.
    3. Sales/Commissions Reports. Waitwhile shall provide Partner, via email, or through extranet login and password, a quarterly report summarizing the sales activities of Partner and its commissions for Qualified Referrals derived from Referral Forms. Waitwhile shall not reveal the names or other personal information about Referrals and Qualified Referrals.
  2. Term and Termination.
    1. Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter ("Initial Term"), unless Waitwhile reject Partner's application to participate in the Program.
    2. Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, "Renewal Term"), unless a Party gives written notice of termination to the other Party at least thirty (30) days' prior to the end of the Initial Term or any Renewal Term.
    3. Early Termination.
      1. Without Cause. Waitwhile shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days prior written notice to Partner.
      2. For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days opportunity for the breaching Party to cure such breach.
      3. Effect of Termination. From and following the date of termination of this Agreement Partner's rights under this Agreement shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.
  3. General
    1. Modification of Agreement. Waitwhile may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site (at https://waitwhile.com/referrals) or notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner's continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.
    2. Waitwhile may assign this Agreement at any time. Partner may not assign or transfer this Agreement without Waitwhile's prior written consent, such consent not to be unreasonably withheld.
    3. Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Waitwhile Marks, the Waitwhile Service and related content and technology around the world ("Waitwhile IP Rights") are and will remain the exclusive property of Waitwhile and its subsidiary companies. The License granted by Waitwhile to Partner under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner's right to use the Licensed Marks is at the discretion of Waitwhile and is subject to Partner's compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Waitwhile IP Rights in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Waitwhile IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Waitwhile IP Rights; (d) promptly notify Waitwhile of any unauthorized use of any Waitwhile IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Waitwhile Marks in compliance with the Guidelines. Waitwhile may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner.
    4. No Waiver. Either Party's failure to enforce the other Party's strict performance of any provision of this Agreement will not constitute a waiver of the first Party's right to subsequently enforce such provision or any other provision of this Agreement.
    5. Limited Warranty. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of practice, as well as this Agreement, the Terms, Privacy Policy and Guidelines. During the Term and after its termination for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Waitwhile and will not make, publish or allow to be made or published any disparaging remarks concerning Waitwhile, its representatives, or the Waitwhile Service.
    6. Disclaimer of Warranty. Other than Waitwhile's express warranty under the previous subsection (e), Waitwhile makes no other warranty, express or implied, of any kind and Waitwhile expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.
    7. Limitation of Liability. Neither Waitwhile nor any officer, employee, director or any other representative of Waitwhile shall be liable towards Partner or towards any third party, under or in connection with this Agreement or its termination, in contract, pre-contract, tort or otherwise for (i) any economic loss (including loss of revenues, profits, contracts, business or anticipated savings) or (ii) any loss of goodwill or reputation. Such losses include, without limitation, any special, indirect, incidental, statutory, punitive or consequential losses or damages as well as any losses or damages caused by interruption of operations. Notwithstanding any other circumstances or understandings surroundings any relations among the Parties, Waitwhile's entire liability to Partner under this Agreement shall not exceed $100 U.S. for any and all claims for damages of any kind made by Partner under this Agreement, and by entering this Agreement Partner recognizes the limitations herein on Waitwhile's liability.
    8. Independent Contractors. The Parties herein act on their own behalf as independent contractor. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Partner is expressly precluded from acting on Waitwhile's behalf. Partner's display of Licensed Marks under this Agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.
    9. Partner will indemnify, defend and hold Waitwhile and its subsidiaries, affiliates, officers and employees (the "Waitwhile Indemnified Parties") harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys' fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Waitwhile Indemnified Parties arising from any of the following: (i) a breach of the Agreement by Partner; (ii) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (iii) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.
    10. Confidential Information and Prohibition on Raiding. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals' information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for one year after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.
    11. Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. "Force majeure" events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Waitwhile's suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
    12. Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties' respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement, and this Agreement may not be modified except in a writing executed by both parties. . Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
    13. Counterparts; Notices. This Agreement may be signed in counterparts and such counterparts shall be valid and binding on the parties hereto with the same effect as if original signatures had been exchanged. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page.
    14. Governing Law; Jurisdiction; Dispute Resolution. This Agreement shall be governed by the laws of the State of California, U.S.A, without giving effect to any principles of conflicts of law. Jurisdiction shall lie exclusively in the District Courts of Santa Clara County, California, . The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of California, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within ten (10) business days of the receipt of such notice.

By submitting the Referral Partner Application, Partner represents and warrants that it has read, understands and accepts this Agreement.

EXHIBIT A

Permitted Waitwhile Marks for Use by Partner

  1. Logos: Licensed Marks to be provided to Partner by Waitwhile, Inc.
  2. Box Letter Trademarks: Waitwhile® or Waitwhile® (Top level Waitwhile Mark associated with all of Waitwhile's help desk product line).

EXHIBIT B

Referral Fees

Referral Fee Table to be provided to Partner after signing up for the Waitwhile Referral Program.