Please carefully read these Partner Program Terms of Service (the “Agreement“), as it is a legal agreement between you, an individual or legal entity as set forth in this online sign-up (“You” or “Partner”), and ActiveProspect, Inc., a Delaware corporation (“ActiveProspect” or “We”), regarding the ActiveProspect Partner Program (the “Program”). By clicking the “I Agree,” or similarly labeled button, You agree to abide by this Agreement. If You do not agree to this Agreement, then do not indicate acceptance and do not participate in the Program. If You are an individual, You acknowledge that You are of least 18 years of age. If You agree to this Agreement on behalf of a legal entity, You represent that You have authority to bind that legal entity to this Agreement. 

  1. Program Overview.

1.1 Overview and Program Tiers. Under the Program, Partner has the rights and responsibilities described in this Agreement. The Program has certain tiers of usage and benefits (each, a “Program Tier”) which may be found here. ActiveProspect, in its sole and reasonable discretion, will determine Partner’s Program Tier and will provide Partner with notice of such Program Tier and any subsequent changes thereto. Subject to Partner’s compliance with this Agreement, Partner will enjoy the benefits for its applicable Program Tier.  Your Program Tier status will be reviewed on a quarterly basis.  You may be eligible to increase Your Program Tier as your engagement and impact within the Program grow.   ActiveProspect may, in its sole discretion, downgrade Your Program Tier at any time for any reason.  

1.2 Audit.  ActiveProspect reserves the right to conduct an audit of Your participation in the Program at any time during the Term to determine compliance with the terms of this Agreement, any other agreement entered into with ActiveProspect, or applicable law.

  1. Partner’s Use of the Services. 

2.1  Terms. Partner’s use of the Services is subject to ActiveProspect’s Terms of Service, Privacy Policy, and any other terms or agreements referenced therein, which are incorporated herein by reference. 

2.2 Modifications.  ActiveProspect may modify, change, or cancel all or any part of the Program, including the terms of this Agreement at any time upon notice to Partner.  Upon making any modifications to the Program or this Agreement, ActiveProspect will send You a written notice via email. You will be responsible for reviewing and becoming familiar with any such modifications. Your continued participation in the Program following such notification constitutes your acceptance of the modified terms.

2.3 Disclaimers. ActiveProspect provides no support, warranty, service level or other obligations for the Services made available under this Agreement and no additional storage, security, confidentiality or privacy obligations for any Partner data in the Services.  

2.4 Other Agreements. Nothing in this Agreement (including this Section 2) modifies, replaces, or supersedes any other agreement between Partner and ActiveProspect for Partner’s use of the Services as a customer of the Services.

2.5 No Endorsement or Compliance Guarantee.  ActiveProspect’s grant of the use of any badges, placement in the Directory, and any other benefits provided under this Agreement do not constitute an endorsement of Partner, its business, conduct, employees, officers, directors, investors, or other third parties linked to Partner.  The benefits of this Program DO NOT GUARANTEE COMPLIANCE WITH ANY LAW OR REGULATION OR PROVIDE ANY CERTIFICATION OF COMPLIANCE by Partner from ActiveProspect.

  1. Partner Obligations

    3.1 Obligations of the Partner are outlined in the Program Tiers available here.

    3.2 Partner must be meet with a representative of ActiveProspect at least once per quarter or other mutually agreed cadence as set forth by ActiveProspect.
  1. Marketing

4.1 Use of Brand Elements. During the Term and subject to this Agreement, each party grants the other party the right to use and display any trademarks, service marks, names, logos, images, collateral or similar materials provided by a party for use under this Agreement (collectively, “Brand Elements”) solely to identify the parties’ relationship under this Agreement and for mutually agreed upon (in writing) marketing activities. Rights granted under this Agreement are non-exclusive and (except as expressly set forth in this Agreement) non-sublicensable and non-transferable. Partner shall only use approved Brand Elements as provided by ActiveProspect.  

4.2 Approvals and Usage Limits. Use of a party’s Brand Elements is subject to that party’s prior written approval and any usage guidelines it provides in writing. After initial approval, substantially similar uses do not require subsequent approval. In addition, any press release or other public announcement relating to this Agreement must be approved in writing by each party in advance. Partner hereby approves ActiveProspect’s use of Partner’s Brand Elements to promote Partner’s participation in the Program. Each party will promptly (and in no case more than 10 days from notice) cease any use of the other party’s Brand Elements upon written request.  Partner’s use of ActiveProspect’s Brand Elements in any marketing references, co-branding, or public announcements must be approved in advance in writing by ActiveProspect.

4.3 No Disparagement. Partner will not disparage, defame, libel, or slander ActiveProspect or the Services in any manner likely to be harmful to ActiveProspect or its business reputations and will promote the Services in a balanced and equitable manner compared to any competing services.  ActiveProspect reserves the right to terminate this Agreement immediately at any time if, in its sole and reasonable discretion, it believes You are causing reputational or brand harm to ActiveProspect or any of its employees, officers, directors, affiliates, subsidiaries, or other parties as reasonably connected with ActiveProspect.

4.4 Co-Marketing.  Partner may from time to time be allowed to participate in certain co-marketing opportunities with ActiveProspect.  These opportunities are not guaranteed under this Agreement and are subject to availability.  

  1.  Confidentiality/Non-Exclusivity

5.1 Confidentiality. This Agreement shall be subject to the Confidentiality provisions set forth in any separate Mutual Non-Disclosure Agreement executed by the parties or the ActiveProspect Terms of Service, whichever was agreed to by Partner first.

5.2 Non-Exclusivity. Nothing in this Agreement establishes an exclusive arrangement between the Parties, and neither party shall be an exclusive partner to the other.

  1. Term

The term of this Agreement shall continue until terminated by either party as set forth in Section 7 herein. 

  1. Termination 

7.1 Termination.  Either Party may terminate this Agreement immediately upon written notice at any time. Upon expiration or termination of this Agreement, Partner shall return to ActiveProspect any and all technical, sales and promotional materials pertaining to ActiveProspect’s products and Services.  ActiveProspect may access, modify, or delete any Partner data in the Services upon termination.

7.2 Pause.  ActiveProspect, in its sole discretion, may temporarily pause Partner’s participation in the program at any time and for any reason.  While ActiveProspect will make reasonable efforts to work with Partner to resume Partner’s participation in the Program, ActiveProspect does not guarantee that a pause will be lifted.

  1. Qualified Referrals and Directory Inclusion

8.1. Qualified Referrals. To be considered a “Qualified Referral” for purposes of this Agreement, a referred customer must meet all of the following conditions:

  1. The referral has a clear need aligned with ActiveProspect’s products and services;
  2. The referral is introduced to ActiveProspect via a warm, explicit email or connection (not a forwarded lead list or vague mention of ActiveProspect);
  3. The correct stakeholder of the referral included in the email (decision-maker or strong influencer);
  4. The referral is actively evaluating solutions such as ActiveProspect or is planning to do so in the near term (next 6 months); and
  5. The referred customer is not currently an opportunity or lead in ActiveProspect's existing database.

7.2  Referral Submission and Tracking.  All referral emails must copy the ActiveProspect Partner Program email at [email protected].  You must also ask your ActiveProspect point of contact to log the account or opportunity under your business (proof may be required).

7.3  Rights of  ActiveProspect with Qualified Referrals.  ActiveProspect reserves the right to terminate the Order Form or other agreement with any Qualified Referral at any time, per the Terms of Service, without notice or liability to Partner hereunder.  If this Agreement is terminated, ActiveProspect shall continue to honor the Order Forms of all Qualified Referrals at the rates agreed upon. Revenue from a Qualified Referral (“Referral Revenue”) is revenue when a referred customer either signs up online or enters into an annual written agreement with ActiveProspect. 

7.4 Partner/Seller Directory.  ActiveProspect will provide Partner with access to and inclusion in a Partner/Seller directory (the “Directory”) within the ActiveProspect platform, subject to the Partner Tier restrictions set forth here. Directory placement and benefits generally scale with your Program Tier. ActiveProspect may modify the Directory, including but not limited to, Partner’s placement, order, and any other criteria within the Directory, at any time and without notice.  ActiveProspect reserves the right to remove or suppress any Directory listings in its sole and reasonable discretion.  ActiveProspect does not guarantee that Partner will receive any leads, introductions, revenue, or other benefits from participation in the Directory. Partner is responsible for the accuracy and compliance of all profile data submitted by Partner.

  1. Warranties and Representations

8.1 Partner represents, warrants and covenants that:  (i) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement has been duly authorized, executed and delivered by Partner and constitutes a legally enforceable agreement of Partner; (iii) this Agreement is not limited or restricted by, and is not in conflict with, any commercial arrangements, obligations, contract, agreement or other instrument to which Partner is either bound or subject; (iv) the performance of this Agreement by Partner shall not infringe any intellectual property rights of any person or entity;  (v) Partner shall not violate any rules, regulations or laws in marketing AP’s products and services; (vi) Partner will not and will not allow its representatives, employees, customers, or affiliates to fabricate, forge, copy, recreate, reverse engineer, or otherwise modify any of the Services including but not limited to any TrustedForm Certificate.  

8.2 ActiveProspect represents and warrants that (i) it is a duly existing corporation under the laws of Delaware; (ii) it has full power and authority to enter into this Agreement and to carry out its obligations hereunder ; and (iii) to the best of it’s knowledge, ActiveProspect’s products and Services will not include any content matter or service that will infringe or misappropriate any rights of any third party. ActiveProspect makes no representations or warranties to Partner that its actions under this Agreement will produce any level of profit or business or that any defined action will lead to further economic benefit for Partner.  

  1. Intellectual Property Rights.

9.1 Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for any use rights expressly granted to ActiveProspect in this Agreement, Partner retains all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use). Except for any use rights expressly granted to Partner in this Agreement, ActiveProspect, its affiliates, and its licensors retain all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use), the Services and any related ActiveProspect technology, templates, formats, know-how, documentation, and dashboards, including any modifications or improvements to these items made by ActiveProspect.

9.2 Feedback. If either party provides the other party with feedback about the other party’s offerings, the recipient may use the feedback without restriction and retains all rights to such. This is not a license under the feedback provider’s patent rights.

9.3 No Fees or Expenses. Except as expressly set out in this Agreement, there are no fees, revenue share or other amounts due from either party to the other under this Agreement. Each party is solely responsible for its expenses and costs of performing under this Agreement.

  1. Conduct and Warranties.

10.1 Conduct. In performing this Agreement, neither party will (a) hold itself out as a reseller or distributor of the other party’s services, (b) engage in any misleading or deceptive conduct detrimental to the other party or (c) make any representations, warranties or commitments on behalf of the other party or regarding the other party’s services.

10.2 Warranties. Each party represents and warrants to the other that (a) it has the required power and authority to enter into and perform its obligations in this Agreement, (b) its acceptance and performance of this Agreement will not violate any other agreement to which it is a party, and (c) it will comply with all applicable laws in its performance of this Agreement, including Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of Anti-Corruption Laws.

10.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ACTIVEPROSPECT PROVIDES THE SERVICES, ITS BRAND ELEMENTS AND ALL OTHER MATERIALS ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 

  1. Indemnification and Liability

11.1 Indemnification. You will indemnify and hold ActiveProspect, its directors, officers, employees, agents, and representatives harmless, including all costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your access to or use of the Services, (ii) your violation of this Agreement, and (iii) any data or materials you provide (including your Brand Elements) infringing the intellectual property rights or other rights of any person or entity.

11.2 Limitation of Liability. EXCEPT FOR DAMAGES AND LIABILITIES ARISING FROM: (a) A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY), (b) A PARTY’S VIOLATION OF APPLICABLE LAWS; (c) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (d) THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE TO THE OTHER FOR: (i) ANY INDIRECT, INCIDENTAL PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, OR OTHER INTANGIBLES, ERRORS OR OMISSIONS. 

EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ACTIVEPROSPECT’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT PAID, IF ANY, UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE, OR (B) $100.00 US DOLLARS. 

  1. General.

12.1 Assignment. This Agreement is not assignable, transferable, or sublicensable by you except with ActiveProspect’s prior written consent. ActiveProspect may transfer, assign or delegate this Agreement and any or all of its rights and obligations without consent.

12.2 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled by the state and federal courts located in Travis County, Texas. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.

12.3 Survivability. The following sections of this Agreement shall survive the termination of this Agreement:  Sections 3, 4.1, and 11.