Master Partner Agreement
Effective as of September 13, 2023
This Master Partner Agreement (the “Agreement”) governs the relationship between Employ, Inc. (together with its Affiliates as defined herein, “Employ”) and the go to market partner (“Partner”) identified in the applicable partner addendum (each a “Partner Addendum”). Partner represents that the individual executing the Partner Addendum is entering into this Agreement on behalf of the entity identified on the Partner Addendum and that the individual executing the Partner Addendum has authority to bind the Partner to this Agreement. In consideration of the obligations, covenants, and agreements set forth below and other valuable consideration the sufficiency of which is hereby acknowledged, the Parties enter into this Agreement effective as of the last date of signature in the first Partner Addendum executed between the Parties (“Effective Date”).
Employ’s direct competitors are prohibited from accessing the software and/or services provided by Employ, except with Employ’s prior express written consent. In addition, the software and services may not be accessed for the exclusive purpose of monitoring performance, or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated September 13, 2023. Employ reserves the right to periodically modify this Agreement upon written notice to Partner, and such modification will become effective in the next Term.
- Introduction. During the Term of the Agreement, Partner will participate in partnership programs made available by Employ (“Partner Program”), subject to the conditions set forth in the Agreement and the applicable Partner may elect to participate in the following programs subject to Partner’s execution of a Partner Election Form selecting a program. Partner is solely responsible for its own costs as may be required with respect to its participation under this Agreement, unless otherwise mutually agreed upon in writing.
1.1 Appointment. Employ grants Partner a non-exclusive, non-transferable right during the term of the agreement to market and promote Employ products and services in connection with the Partner Programs set forth in this Agreement and limitations described herein.
1.2 Partner Programs.
1.2.1 Channel Partner. The Employ channel partner program (“Channel Program”) allows service providers, consultants and advisors (each a “Channel Partner”) to refer leads to Employ for referral compensation during the Term of the Agreement as set forth in the Channel Partner Addendum (“Channel Partner Addendum”).
1.2.2 Platform Partner. The Employ platform partner program (“Platform Program”) allows HR technology software vendors that offer Employ-integrated solutions (each a “Platform Partner”) to engage with Employ during the Term of the Agreement as set forth in the Platform Partner Addendum (“Platform Partner Addendum”).
- Fees and Payment.
2.1 Fees. Partner will pay Employ the applicable fees described in the Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. If Partner believes that Employ has billed Partner incorrectly, Partner must contact Employ no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable.
2.2 Renewal Service Term Fees. In the event that Partner exceeds any Employee Limit identified in an applicable Order Form, no additional Fee will be assessed during the Service Term. To the extent Partner exceeds the Employee Limit upon renewal a prorated increase in fees will automatically be assessed and applied to the invoice for the next service term (“Renewal Service Term”) to the extent the Agreement is automatically renewed. Employ reserves the right to change the Renewal Service Term fees or applicable charges and to institute new charges and fees or to bring rates to the then current per unit rate at the end of any Service Term, except as may be outlined otherwise in any executed Order Form, upon sixty (60) days prior notice to Partner. Without limiting the foregoing, any Renewal Term in which product or subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior Service Term’s per-unit pricing and may result in a larger increase in per unit pricing.
2.3 Invoices. All Fees will be invoiced annually upon the effective date of the applicable Order Form, unless otherwise identified in the Order Form. Unless otherwise specified in an Order Form, Employ will bill through an invoice and full payment for invoices issued must be received by Employ thirty (30) days after the electronic delivery date of the invoice. In the event of a Service Term of more than one year, amounts will be billed in annual instalments annually upon the anniversary of the effective date of the Order Form for the duration of the Service Term.
2.4 Taxes. Any amounts payable hereunder are exclusive of, and Partner shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Employ, unless Partner provides to Employ a valid tax-exempt certificate. In the case of any withholding requirements, Partner will pay any required withholding itself and will not reduce the amount paid to Employ on account thereof.
- Intellectual Property.
3.1 Software License. Employ grants Partner a non-exclusive, non-transferable right during the Term of the Agreement to use certain Employ software made available by Employ to Partner in connection with the applicable Partner Program (“Partner Software”). Use of the Partner Software is subject to the terms in Exhibit A.
3.2 Ownership. Each Party owns all right, title and interest in and to its proprietary software, products, and processes. Partner will take no action inconsistent with such right, title and interest and agrees to always use Employ’ copyright notice when applicable. Partner agrees not to challenge or make claims against any Employ’ products or services provided under this Agreement.
3.3 Employ License. Subject to the terms and conditions contained in this Agreement, during the Term, Employ hereby grants to Partner, and Partner hereby accepts, a limited, non-exclusive, non- transferable, worldwide right to use the Employ Materials and Documentation solely to perform its obligations under this Agreement. Partner acknowledges that this Agreement does not convey to Partner any right, license, title, or interest in or to the Subscription.
3.4 Partner License. Subject to the terms and conditions contained in this Agreement, during the Term, Partner hereby grants to Employ, and Employ hereby accepts, a non-exclusive, non-transferable, royalty-free, worldwide right to use the Partner Materials solely to perform its obligations under this Agreement. Employ acknowledges that this Agreement does not convey to Employ any right, license, title, or interest in or to the Partner Offerings.
- Confidential Information.
4.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes software services, business data, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, 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, (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, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
4.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The 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 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 and its Affiliates’ 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. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Employ may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Employ’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
4.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Representations and Warranties.
5.1 General Warranty. Each party’s performance under this Agreement will be in a professional manner consistent with industry standards. Neither party will make any representation or warranty on behalf of the other Party. ALL SOFTWARE AND SERVICES PROVIDED BY EACH PARTY UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3 THE PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SOFTWARE AND SERVICES PROVIDED HEREUNDER, AND ALL SUCH OTHER WARRANTIES ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
5.2 Mutual Representations. Each Party further represents and warrants that: (i) it fairly and lawfully gathered the Leads in accordance with laws applicable to both the Receiving Party and Disclosing Party; (ii) it shall not engage in fraud or fraudulent misrepresentation, or cause death or personal injury caused by negligence, or any matter for which it would be unlawful for the Parties to exclude liability; (iii) it shall not present itself as an employee, agent, representative, Partner or joint venture Partner of Employ and shall not make or promise to make any representations on behalf of Employ, including any warranties; (iv) it will not make any statements, or take any other actions whatsoever, to disparage, defame, sully or compromise the goodwill, name, brand or reputation of the other Party or any of its affiliates (collectively, the “Party’s Goodwill”) or commit any other action that could likely injure, hinder or interfere with the business relationships or Party Goodwill; (v) it has obtained consent in accordance with applicable laws, including data protection and marketing laws, regulations and guidance, from each individual whose personal information is included in the Leads to (a) share contact information with Receiving Party and (b) allow Receiving Party to use the Leads for the Email Marketing Campaign only; (vi) it has all rights, permissions and authorizations necessary to provide the Leads to the Receiving Party for purposes of the Campaign; and (vii) will comply with all laws, rules, regulations applicable to its conduct under this Agreement.
- Data Protection. Each Party must ensure compliance with applicable national data protection laws at all times during the term of this Agreement. The Parties may enter into additional data sharing agreements in the event they share personal data from certain countries. To the extent that each Party shares leads from joint marketing efforts, each Party represents that (i) it has obtained necessary consent from the data subject for purposes of sharing contact information and for the other party to contact the individual, and (ii) The Parties agree that each will act as joint controllers as defined by Article 26 of the General Data Protection Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC. To the extent a Party shares lead referral information with the other Party, the referring party represents that it has obtained all necessary consent for the party receiving referral lead information to contact the referral lead.
7.1 Partner Indemnification. Partner agrees to defend Employ, its affiliates, and their respective directors, officers, employees, licensors, and agents (each an “Employ Indemnitee”) from and against any third-party claim, demand, lawsuit or legal action: (i) alleging that Partner Materials or the Partner Offering infringe or violate an Intellectual Property Right of a third party; (ii) arising from the gross negligence or intentional misconduct of Partner or its affiliates, and their respective employees and agents; (iii) arising from any violation of Partner’s obligations in this Agreement; or (iv) arising from Partner’s violation of an applicable law or regulation (including any anti- corruption, anti-kickback, or anti-bribery law), (each of (i), (ii), (iii), and (iv) a “Partner Indemnified Claim”), and indemnify each Employ Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with a Partner Indemnified Claim.
7.2 Employ Indemnification. Employ agrees to defend Partner, its affiliates, and their respective directors, officers, employees, and agents (each a “Partner Indemnitee”) from and against any third- party claim, demand, lawsuit or legal action: (i) arising from the gross negligence or intentional misconduct of Employ or its affiliates, and their respective employees and agents; or (ii) arising from any use of Partner’s Materials by Employ or its affiliates, and their respective employees and agents, not in accordance with this Agreement (each of (i) and (ii) an “Employ Indemnified Claim”), and indemnify each Partner Indemnitee against any damages, attorneys’ fees, or other costs awarded against it in connection with an Employ Indemnified Claim.
7.3 Indemnification Procedure. As a condition to the indemnifying party’s obligations pursuant to this Section 7, the indemnified party must: (i) promptly notify the indemnifying party in writing of all indemnifiable claims; (ii) provide the indemnifying party with reasonable assistance to settle or defend such claims, at the indemnifying party’s own expense; and (iii) grant to the indemnifying party the right to control the defense and/or settlement of such claims, at the indemnifying party’s own expense; provided, however, that: (1) the failure to so notify, and/or provide assistance will only relieve the indemnifying party of its obligation to the indemnified party to the extent that the indemnifying party is prejudiced thereby; (2) the indemnifying party will not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement that: (x) makes any admission of wrongdoing on behalf of the indemnified party; or (y) consents to any injunction against the indemnified party (except an injunction relating solely to the indemnified party’s continued use of any infringing Service); and (3) subject to the foregoing, the indemnified party will have the right, at its expense, to participate in any indemnifiable claim and to be represented by legal counsel of its choosing, but will have no right to settle a claim without the indemnifying party’s written consent.
- Limitation of Liability.
8.1 Limitation of Damages. EXCEPT WITH RESPECT TO BREACHES OF SECTION 5 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S INDEMNITY OBLIGATIONS, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY CLAIMS, SUITS, LIABILITY OR DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY PARTNER TO EMPLOY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.
8.3 Limitation of Claims. Any claim or cause of action arising out of or related to the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever waived.
- Term and Termination.
9.1 Term. This Agreement will commence as of the Effective Date and will remain in effect until October 1 of the then current calendar year (“Initial Term”), unless terminated earlier in accordance with its terms. It will automatically renew for subsequent annual terms (together with the Initial Term, the “Term”), unless either party notifies the other of its intent not to renew the Agreement at least sixty days prior to the expiration date. Any Partner Addendum made between the Parties will co-terminate with this Agreement and any Partner Program benefits and requirements will be prorated to correspond to the co-terminated Term.
9.2 Termination. Either party may terminate this Agreement upon thirty days prior written notice to the other party (i) due to an uncured material breach of the other party; (ii) due to the insolvency or bankruptcy of the other party; or (iii) in the event of a change in the control or business operations of a party that the other party reasonably deems would affect such party’s ability to perform its obligations under this Agreement. Employ may in its sole discretion terminate this Agreement should it reasonably determine that Partner is not meeting its obligations or performing in accordance with the Agreement.
9.3 Effect of Termination. Upon termination of this Agreement, the following will occur: (i) Partner will return to Employ the materials and information provided under this Agreement and its Attachments and Exhibits; and (ii) all rights granted to Partner under this Agreement, including but not limited to the license to Employ’ software, will immediately cease. In no event may Partner use any information it learns through its performance under this Agreement in a manner that could be detrimental to Employ.
10.1 Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the Service and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement.
10.2 Amendment. There will be no force or effect to any different terms of any related purchase order provided as part of payment processing, even if signed by the parties after the date hereof. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.
10.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to:
20 N. Meridian St.
Indianapolis, IN 46204
The business contact identified on the applicable partner addendum.
All Notices must be delivered by personal delivery, email or certified or registered mail (in the latter case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party (or upon delivery, if by email); and (ii) if the Party giving the Notice has complied with the requirements of this Section.
10.4 Publicity. Each party may reference the other Party as a ‘partner’ and may use the name and logo of the other party for that purpose. Other than as permitted in the previous sentence, neither party will use the name, logo, trademark or other intellectual property of the other Party in any press release, public statement, advertising or customer list, or disclose the nature of the work being performed by one Party for the other Party in connection with this agreement without the prior written consent of the other Party.
10.5 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.
10.6 Waiver. No failure to exercise, or delay in exercising, any rights, powers or remedies arising from this Agreement will operate or be construed as a waiver of the rights of such a party to demand full compliance with the terms of this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
10.7 Severability. If any provision of this Agreement is declared invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability, the remainder of the agreement will remain valid and enforceable to the fullest extent permitted.
10.8 Dispute Resolution. THE AGREEMENT AND SERVICES WILL BE GOVERNED BY NEW YORK LAW WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.
10.9 Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
10.10 Cumulative Remedies. Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative and in addition to (not in lieu of) any other remedies available to a Party at law or in equity.
10.11 Assignment. Neither party may assign any part of this Agreement without the other party’s prior written consent, except that no such consent will be required with respect to an assignment of this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to transfer or assign is void.
10.12 Compliance with Laws. Notwithstanding anything to the contrary, Partner may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Partner acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).
10.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Partner Software Evaluation License Agreement
- Terms for Limited Use License. Employ grants to Partner a worldwide, nontransferable, nonexclusive right during the term of the Agreement to use the Software listed in Section 3 of this Exhibit A internally and with existing or prospective customers subject to the terms of this Exhibit A and the Agreement. Partner may use the Software solely for the following purposes: (i) demonstration, marketing and “proofs of concept”; (ii) internal evaluation; (iii) incident-limited Partner technical support of Partner’s sales and technical personnel, and (iv) providing delivery, installation and implementation services to customers that maintain valid Employ licenses (the items described in clauses (i-iv) being referred to as the “Derivative Works”). Partner grants to Employ a nonexclusive, fully paid, license, which Employ may sublicense to its customers as part of the Software, to the portions of the Derivative Works that are generic in nature and do not include Confidential Information of Partner or its clients.
- Excluded Uses. Partner will not use the Software for any other purpose, including, but not limited to, application development, reproduction, resale, distribution, preparation of derivative works not listed in Section 1 above, or any other revenue-generating products or services.
- Covered Software. The term “Software” as used in this Attachment means (a) Any Employ software and related services, and (b) any applications or other software that are then generally-available and that are mutually agreed upon by the parties in writing.
- Term. The license and rights set forth in this Exhibit will be valid only during the term of the Agreement. Employ may terminate this license sooner, however, if Partner breaches either the terms of this Exhibit or the Agreement and fails to cure any such breach within ten days’ notice from Employ. Upon termination for any reason, Partner agrees to promptly de-install the Software from any hardware on which it has been installed and to return all copies of the Software immediately to Employ.
5.1 Partner will prevent its agents, employees and subcontractors from copying the Software, documentation or other property of Employ or from disclosing, providing or copying or otherwise making known to any person or entity any information concerning the Software without written authorization from Employ unless otherwise set forth in this Exhibit or the Agreement. Notwithstanding the foregoing, Partner may make one back-up copy of the Software.
5.2 Partner will not make any change, alteration or modification to the Software, or use with Software in any manner inconsistent with this Exhibit, unless authorized by Employ. Partner will not reverse engineer or decompile the Software.
6. Indemnity. Partner will indemnify and hold harmless Employ, its officers, agents, and employees from all claims, including damages, costs, attorneys’ fees and other expenses, arising out of 1) Partner’s misuse of the Software, and 2) any claim that a Derivative Work infringes any third party intellectual property.