BY MARKING THE “I HAVE READ AND AGREE TO THE PARTNER PROGRAM AGREEMENT” CHECKBOX, OR SIGNING UP ONLINE FOR AN ACCOUNT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS PARTNER PROGRAM AGREEMENT (THE “AGREEMENT”). THE AGREEMENT IS BETWEEN YOU, AS PARTNER (AS DEFINED BELOW IN SECTION 1), AND 852256-1 CANADA CORP. (KIMOBY)(TOGETHER, THE “PARTIES”, AND EACH A “PARTY”). YOU CAN REVIEW THE CURRENT VERSION OF THE AGREEMENT AT ANY TIME AT https://help.kimoby.com/partner-program-agreement. YOU ARE ADVISED TO CHECK THE AGREEMENT FROM TIME TO TIME FOR ANY UPDATES OR CHANGES THAT MAY IMPACT YOU.
YOU MUST READ, AGREE WITH AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND KIMOBY'S PRIVACY POLICY BEFORE YOU MAY BECOME A PARTNER. SOME TYPES OF KIMOBY PARTNER PROGRAM ACTIVITIES MAY REQUIRE THAT YOU AGREE TO ADDITIONAL TERMS (“ADDITIONAL TERMS”). SUCH ADDITIONAL TERMS ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE. IN THE EVENT OF A CONFLICT OR INCONSISTENCY BETWEEN THIS AGREEMENT AND THE ADDITIONAL TERMS, THE ADDITIONAL TERMS WILL GOVERN, TO THE EXTENT OF SUCH CONFLICT OR INCONSISTENCY.
1. DEFINITIONS
“Account” means a subscription made by an Account Owner that gives access the Services.
“Account Owner” means an individual or business that uses the Service to communicate with clients by text.
“Account Agreement” means the agreement entered into between a Partner and the Account Owner governing the Account Owner’s use of the Partner’s services., including, if applicable, the installation and use of an Application. (Can be found at: https://help.kimoby.com/account-subscription-agreement)
“Account Data” means information (including personal information) relating to an Account, including but not limited to business, financial and product information and any Customer Data. Where Partner uses the Kimoby API, Dealer Data may be delivered in the form of an API response.
“Agreement” means this Partner Program Agreement.
“Customer” means a customer of the Company’s Account.
“Customer Data” means information (including personal information) relating to a Customer.
“Kimoby API” means all software (including routines, data structures, object classes, protocols, programs, development tools, templates, libraries and interfaces), updates, application programming interfaces, information, data, files, documentation and other materials, whether tangible or intangible, in whatever form or medium that is available at https://api-doc.kimoby.com/.
“Kimoby Brand” means the trademarks, logos, service marks and trade names of 852256-1 Canada Corp., whether registered or unregistered, including but not limited to the word mark Kimoby or text bubble icon.
“Kimoby Promotional Materials" means any marketing and/or promotional materials relating to Kimoby and/or Kimoby brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Kimoby brand.
“Kimoby Test Account” means an account used by the Partner to make tests.
“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Kimoby Partner Program.
“Partner Account” means a Kimoby Partner Program account.
“Partner Manager” means the Kimoby employee designated by Kimoby from time to time as the Partner’s primary Kimoby contact.
“Partner Access” means the internal administrative page available at: app.kimoby.com/login that allows Partners to manage their Partner Account.
“Partner Program” means Kimoby’s program for Partners that provides exclusive access to resources and the opportunity to earn revenue share.
“Payment Period” means the period for the payment of Fees owing to Partner by Kimoby, as set out in Section 3.2.
“Service” means the Kimoby hosted texting platform available via www.kimoby.com and any associated websites, that is used by Accounts to text their customers.
“Updates” means bug fixes, updates, upgrades, enhancements, modifications and new releases or versions of the Kimoby API.
2. PARTNER RESPONSABILITIES
2.1 Marketing Activities.
2.1.1 Partner shall bear all costs and expenses related to Partner's marketing or promotion of Kimoby, and/or Partner’s Partner Program activities in any area, location, territory or jurisdiction, unless otherwise determined by Kimoby in its sole discretion.
2.1.2 In no event shall Partner engage in any email marketing or promotion with respect to Kimoby and/or any Kimoby Related Entity except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Kimoby to send emails regarding the offering of Kimoby and Kimoby Related Entities to the individuals on the Opt-in List. In the event Kimoby approves such request, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
2.1.3 Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Kimoby and/or Kimoby Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Kimoby, Kimoby Related Entities, the Service and/or the Kimoby platform; and (iii) not imply that such emails are being sent on behalf of Kimoby or Kimoby Related Entities.
2.1.4 A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Kimoby and/or Kimoby Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Kimoby and/or Kimoby Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Kimoby and/or Kimoby Related Entities; (iv) copy, resemble or mirror the look and feel of Kimoby’s websites, Kimoby brand or Services or otherwise misrepresent Partner’s affiliation with Kimoby and/or Kimoby Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Kimoby and/or Kimoby Related Entities, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Kimoby or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.
2.2 Compliance with Laws. In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations. Partner will comply with all applicable laws.
2.3 Partner Duty to Inform. Partner shall promptly inform Kimoby of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Kimoby and/or the Kimoby Related Entities by any third party.
2.4 Prohibited Activities. An Account cannot be opened and owned by a Partner and for which that Partner seeks compensation pursuant to this Agreement. A Partner will be deemed to have introduced only those referred Accounts that access Kimoby from the Partner’s reference. A Partner shall not:
2.4.1 promote or advertise Kimoby and/or Kimoby Related Entities on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code;
2.4.2 use its unique referral link directly in any pay-per-click advertising;
2.4.3 purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Kimoby Trademarks and/or the names or trademarks of any Kimoby Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Kimoby Trademarks or the names or trademarks of any Kimoby Related Entity;
2.4.4 create or participate in any third party networks or sub-affiliate networks without the express written permission of Kimoby;
2.4.5 use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
2.4.6 use direct linking to any page on any Kimoby website, without prior written permission from Affiliate’s Partner Manager; or mask its referral sites or use deceptive redirecting links;
2.4.7 mask its referral sites or use deceptive redirecting links.
2.5 Kimoby Test Account. During the development of an Account by the Partner on behalf of an Account Owner, the latter may designate the Account as a Kimoby Test Account. A Kimoby Test Account is not publicly visible, and is not subject to monthly subscription fees. A Kimoby Test Account is deemed to become an Account upon the earlier of: (a) the payment of monthly subscription fees for the store by either the Partner or Account Owner; and (b) the transfer by the Partner of ownership of the Kimoby Test Account to the Account Owner.
2.6 Relationship between Partner and Account. The services provided by a Partner to an Account are the responsibility of the Partner and not of Kimoby. It is the Partner’s responsibility to ensure that there is an Account Agreement in place between the Partner and Account for the services to be provided, and that the Account Agreement includes appropriate remedies in the event of non-payment by Account for services rendered by the Partner In the event of a dispute between the Partner and the Account, Kimoby is not obligated to intervene in any such dispute.
2.7 Other Partner Terms.
2.7.1 If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.
2.7.2 To become a Partner, the Partner must create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Kimoby may reject an application for a Partner Account for any reason, in its sole discretion. The Partner acknowledges that Kimoby will use the email address provided by the Partner as the primary method for communication. The Partner is responsible for keeping its Partner Account password secure. Kimoby cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account, related Accounts and password.
2.7.3 If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.
2.7.4 Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
2.7.5 Partner acknowledges and agrees that Kimoby may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Kimoby’s website, available at https://help.kimoby.com/partner-program-agreement and such amendments to the Agreement are effective as of the date of posting. Partner’s continued participation in the Kimoby Partner Program constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Kimoby Partner Program. If a significant change is made, Kimoby will provide reasonable notice by email.
2.7.6 Partner acknowledges and agrees that the Partner’s participation in the Kimoby Partner Program, including information transmitted to or stored by Kimoby, is governed by the Kimoby Privacy Policy found at https://help.kimoby.com/privacy-policy .
2.7.7 Other than the limited license to use the Kimoby brand pursuant to Section 5 of this Agreement, the Partner shall not use the Kimoby brand variations or misspellings thereof in the Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).
3. FEES AND PAYMENTS
3.1 Revenue Sharing Plans. Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Kimoby (the “Fees”).
Kimoby reserves the right to (i) demand and receive information from Partners about any Account, including but not limited to information with respect to traffic sources and methods used to acquire the Account, and (ii) assess the legitimacy and qualification of such Account for the purposes of determining whether a Fee is payable for such Account. Kimoby shall not be responsible to pay any Fees for an Account owned in whole or in part by a Partner or Partner’s employer (whether full-time, part-time, term or any other employment relationship).
3.2 Payment. Fees due to the Partner will be paid by Kimoby once per month upon receipt of payment from the Account, for each month that the Account is active. Every first of the month, Kimoby will send a check to the Partner that corresponds to a certain percentage of the amounts paid by the associated Accounts from the previous month. The percentage granted to the partner is at Kimoby’s sole discretion.
3.3 Additional Payment Information.
3.3.1 All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.
3.3.2 Notwithstanding anything to the contrary in this Agreement, Kimoby shall not be responsible to pay any Fees: (a) related to revenues that have been refunded to an Account by 852256-1 Canada Corp; (b) for an Account created or owned in whole or in part by a Partner; (c) related to fraudulent sales; and (d) related to revenues that have been subject to chargebacks; or to Partners who are employed by or who are contractors of 852256-1 Canada Corp.
3.3.3 If any Fees paid by Kimoby are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.2, or to have been paid in error, Kimoby shall have the right, at its sole discretion, to reclaim fees owed. If the Agreement is terminated before such amounts are fully repaid by Partner to Kimoby, Partner shall pay to Kimoby the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
3.3.4 Kimoby reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email. In the event of any disputes over Fees, Kimoby’s determination will be final and binding.
4. TERMINATION
4.1 Termination.
4.1.1 Kimoby may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner. The Partner may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Kimoby.
4.1.2 Fraudulent or other unacceptable behaviours by Partner, as determined by Kimoby in its sole discretion, may result in the termination of Partner’s affiliation with an Account within the Partner Account, suspension of some or all Partner privileges under the Kimoby Partner Program, or termination of the Partner Account entirely without notice to, or recourse for, Partner.
4.2 Consequences of Termination. Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Kimoby Promotional Materials and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Kimoby Promotional Materials and/or any Kimoby Brand on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to access the Partner Account, Partner Access, Kimoby API, or to receive any payments of Fees hereunder, unless otherwise determined by Kimoby in its sole discretion.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Kimoby Promotional Materials.
5.1.1 All Kimoby Promotional Materials will be solely created and provided by Kimoby. Kimoby will provide Partner with access to Kimoby Creative. The Kimoby Promotional Materials may also be accessible from the Partner Program website and the Kimoby brand guidelines (“Kimoby Brand Usage Guidelines”). By using the Kimoby Promotional Materials, you indicate your acceptance of our Kimoby Brand Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the Kimoby Creative. The Kimoby Promotional Materials is provided “as is” and without warranty of any kind.
5.1.2 Partner may display Kimoby Promotional Materials on the Websites solely for the purpose of marketing and promoting the Service and any Kimoby brands promoted by Kimoby and by Kimoby Related Entities during the term of this Agreement, or until such time as Kimoby may, upon reasonable prior notice, instruct Partner to cease displaying the Kimoby Creative. Partner may not alter, amend, adapt or translate the Kimoby Promotional Materials without Kimoby's prior written consent. Nothing contained in any Kimoby Promotional Materials shall in any way be deemed a representation or warranty of Kimoby or any of Kimoby Related Entity. The Kimoby Promotional Materials shall at all times be the sole and exclusive property of Kimoby and no rights of ownership shall at any time vest with the Partner even in such instances where the Partner has been authorized by Kimoby to make changes or modifications to the Kimoby Creative.
5.2 Kimoby Brands. During the term of this Agreement, Kimoby hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Kimoby Brands solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Kimoby’s brands only as permitted hereunder; (b) it will use the Kimoby brands in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Kimoby in writing from time to time, including but not limited to the Kimoby Brand Usage Guidelines; (c) the Kimoby brands are and shall remain the sole property of Kimoby; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Kimoby brands and all use thereof by Partner shall inure to the benefit of Kimoby; and (e) Partner shall not, now or in the future, contest the validity of any Kimoby brands or use any term or mark confusingly similar to any Kimoby brands.
5.3 Restrictions on Partner’s Use of the Kimoby Brand. Notwithstanding Section 5.2, Partners shall not use any Kimoby Brand including but not limited to the text bubble icon, the feature icons or the word mark Kimoby or variations of the word “Kimoby” in Partner’s business name, logo, products or services, including without limitation, unless granted express written permission by Kimoby in advance of such use.
5.4 Proprietary Rights of Kimoby. As between Partner and Kimoby, the Kimoby Creative, Kimoby Brands, all demographic and other information relating to Accounts, prospective Partners and Partners, the Services, the Kimoby API, Account Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Kimoby and/or Kimoby Related Entities or otherwise related to the Service, Kimoby Partner Program, Kimoby and/or Kimoby Related Entities, together with all copyrights, brands, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Kimoby Property”) shall be and remain the sole and exclusive property of Kimoby. To the extent, if any, that ownership of any Kimoby Property does not automatically vest in Kimoby by virtue of this Agreement, or otherwise, Partner hereby transfers and assigns to Kimoby, upon the creation thereof, all rights, title and interest Partner may have in and to such Kimoby Property, including the right to sue and recover for past, present and future violations thereof. Kimoby does not permit (i) copy a service or any part, feature, function or user interface thereof, (ii) copy content except as permitted herein or in an order form or the documentation, (iii) frame or mirror any part of any service or content, other than framing Partner’s own intranets or otherwise for Partner own internal business purposes or as permitted in the documentation, (iv) access any service or content in order to build a competitive product or service, or (v) reverse engineer any service. Any use of the services in breach of this Agreement by Partner that in Kimoby judgment threatens the security, integrity or availability of services.
6. CONFIDENTIALITY
6.1 Confidential Information. Confidential information shall include, but shall not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, Account Data, Customer Data, product designs, sales, costs, price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.
6.2 Other Party’s Informations. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (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.
7. DISCLAIMER OF WARRANTY
The Kimoby Partner Program, the Service, the Kimoby Brands, the Kimoby Creative, and the Kimoby API are provided “as-is”. Kimoby makes no warranties hereunder, and Kimoby expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Kimoby further disclaims all representations and warranties, express or implied, that the Service, the Kimoby API, the Kimoby Brands or the Kimoby Promotional Materials do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction. Partner understands and agrees that the Kimoby Partner Program, the Service, the Kimoby Brands, the Kimoby Creative, and the Kimoby API may not satisfy all of Partner’s or Account’s requirements and may not be uninterrupted, error-free or free from harmful components.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 Limitation of Liability. Kimoby shall have no liability with respect to the Kimoby Partner Program, the Service, the Kimoby API, the Kimoby Brands, the Kimoby Promotional Materials or Kimoby’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Kimoby API, the Kimoby Brands, the Kimoby Creative, or Partner’s participation or inability to participate in the Kimoby Partner Program even if Kimoby has been advised of the possibility of such damages. In any event, Kimoby’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Kimoby during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between an Account and a Partner is strictly between the Acount and the Partner, and Kimoby is not obligated to intervene in any dispute arising between the Account and the Partner. Under no circumstances shall Kimoby be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from the Partner’s relationship with any Account. These limitations shall apply even if Kimoby has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
8.2 Partner Indemnification. Partner agrees to indemnify, defend and hold harmless Kimoby and any Kimoby Related Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Kimoby and Kimoby Related Entities granted by Partner to any Account, prospective Partner or other third party; (d) Partner’s use of the Kimoby API; (e) Partner’s breach of any term of this Agreement or the Account Agreement; (f) any third party claim that Partner’s products or services, infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Partner’s products or services, and (h) Partner’s relationship with any Account.
8.3 Notice of Indemnification. In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
8.4 Non-exclusive remedies. In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Kimoby under this Agreement and under applicable law, Kimoby shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by Kimoby in connection with such violation, in accordance with the provisions of this Section 8.
9. GENERAL PROVISIONS
9.1 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
9.2 Independent Contractors. The parties are independent contractors. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
9.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
9.4 Non-Exclusivity. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so.
9.5 Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to admin@Kimoby.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in the Partner Account, and for Kimoby to 633, St-Joseph East Street, #302, Quebec, Quebec, Canada, G1K 3C1 Attention: Legal Department.
9.6 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
9.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, the party concerned will refund to the other party any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Kimoby shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Kimoby’s prior written consent, to be given or withheld in Kimoby’s sole discretion.
9.8 Service Providers. Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.
9.9 Industry Standards.
9.9.1 Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively,“Partner System”) must be properly configured to Internet industry standards so as to securely operate Partner's Website, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency, and disconnect immediately any intrusions or intruder.
9.9.2 In addition, if Partner has access to Account Data, Partner: (i) shall only use or store such information for the purpose of providing the Partner’s services, and shall not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) shall not communicate with Customers directly or indirectly, provided however that Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) shall only store such information for as long as reasonably necessary to provide the Partner’s services; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) shall notify Kimoby of any actual or suspected breach or compromise of Account Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (a) promptly remedy the Data Breach to prevent any further loss of Account Data; (b) investigate the incident; (c) take reasonable actions to mitigate any future anticipated harm to Kimoby, Accounts or Customers; and (d) regularly communicate the progress of its investigation to Kimoby and cooperate to provide Kimoby with any additional requested information in a timely manner.
9.10 FTC Guidelines.
9.10.1 The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with Kimoby, Partner receives compensation for the Account referrals made to Kimoby. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers.
9.10.2 Full compliance with these guidelines requires that information be provided by Partner to consumers clearly and conspicuously, outlining that Partner is being compensated for referring Accounts to Kimoby. For further information Partner may refer to the statement released by the FTC regarding these guidelines.
9.11 Entire Agreement. This Agreement is the entire agreement between Partner and Kimoby and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (including, but not limited to, any prior version of this Agreement). Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
9.12 Applicable Laws. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Quebec with respect to any dispute or claim arising out of or in connection with this Agreement.