Partner Referral Terms of Service

Last Updated June 6, 2017

This is a contract between you (the “Referral Partner”) and us (“Losant”). It describes how we will work together and other aspects of our business relationship. By participating in our Referral Partner Program, you are agreeing to these terms.

Definitions

"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Subscription Services.
“Active Referral Partner” means that you have one or more active Service Subscriptions listed in your Losant Referral Partner account for which you have received Referral Fee payments. Active status is re-evaluated on an annual basis.
“Agreement” means the terms and conditions of this Referral Partner Program Agreement, all materials referred or linked to in here, and the Signature Page hereto.
"Authorized User" means each of the individuals authorized to access the Losant Products on a limited basis on behalf of End User, as authorized by the End User and pursuant to the other terms and conditions of this Agreement.
“Closing a Sale” means directly causing the execution of a binding agreement by (i) an End User to receive Losant Products and (ii) a Paying Party to pay us in return for provision of the Losant Products to the End User. “Close a Sale” and “Closed a Sale” have similar meanings.
“Customer Terms of Service” means those terms and conditions located at https://www.losant.com/legal/terms-of-service, as modified from time to time.
"Documentation" means the manuals and other documentation that Losant has created for the Losant Products, available at https://docs.losant.com.
“End User” means the authorized actual user of the Losant Products or the party on whose behalf you use the Losant Products.
“End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the Losant Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the Losant Products.
“Inactive Referral Partner” means that you do not meet the criteria of an Active Referral Partner (defined above.)
"Intellectual Property Rights" means current and future worldwide rights under patent, copyright, design rights, trade secret, trademark, moral rights, and other similar rights, whether registered or unregistered.
“List Price” means the standard pricing for the Losant Products as listed on the pricing guide supplied with the Signature Page. However, we will not apply any price change to End Users who purchase Subscription Service within ten (10) days after such price change.
"Losant Background IP" means Intellectual Property Rights: (a) owned by or licensed to Losant as of the Effective Date; (b) developed or acquired by Losant after the Effective Date but independent of, and unrelated to, Losant’s provision of the Losant Products; (c) relating to standard products or services offered or provided by Losant (including any improvements or enhancements to those products and services that are made in the course of Company providing its services or products to Customer), or (d) embodied in Documentation, Losant Content, and the Losant IoT Platform.
“Losant Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our products and services.
“Losant IoT Platform” means a cloud-based Internet of Things (“IoT”) orchestration platform for developing connected experiences for IoT objects and/or devices. The platform facilitates device management with data visualization that reacts in real-time.
“Losant Products” means the Subscription Service from the Losant Platform, it does not include "Other Products."
“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include, implementation, customization, training, consulting and other professional services, or fees for third-party products or services.
“Paying Party” means the party responsible for paying us for provision of the Losant Products to the End User, as indicated on the Signature Page.
“Referral Partner Program” means our referral partner program as described in this Agreement.
“Referral Transaction” means Closing a Sale with a Registered Prospect.
“Registered Prospect” has the meaning as set forth in the “Prospects; Non-Competition” section of this Agreement.
“Referral Fee” means an amount equal to the percent of Annual Net Revenue from Losant Products, indicated on the Signature Page.
“Support Level Agreement” means the support level agreement that sets forth yours and our support obligations for the Losant Product as outlined at you have ordered such support services on the Signature Page. For the purposes of this Agreement, Technical support and service shall be provided by Losant, 9am – 5pm EST work days via email.
“Signature Page” means the signature page attached to this Agreement.
“Subscription Service” means a subscription license to the Losant IoT Platform. For the purposes of this Agreement, the Subscription Service does not include any implementation, customization, training, consulting, or other professional services.
“We”, “us”, “our”, and “Losant” means Losant, Inc., a Delaware Corporation.
“You” and “Referral Partner” means the party, other than Losant, entering into this Agreement and participating in the Referral Partner Program.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Referral Partner Rights and Obligations

Rights Granted to You. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Losant Products to your prospects and customers, and (ii) to provide End Users access to use the Losant Products in accordance with this Agreement and the Customer Terms of Service, provided that such End Users have agreed to the Customer Terms of Service. At our discretion, we will provide limited sales support to you, such as occasional participation on a call with you and a prospect.
Your Obligations.
1. You will comply with the terms and conditions of this Agreement at all times;
2. you will respect the service limits that we reserve the right to impose in the future, which we will either add to this Agreement or about which we will notify you

Prospects; Non-Competition.

Prospect Registration.
1. “Registered Prospect” means a person or entity, prior to us Closing a Sale with such person or entity:
  1. Whose contact first name, contact last name, email, URL and company name you provide to us;
  2. who is not at the time of attempted registration or sixty (60) days prior, (1) our previous or existing customer, (2) a Losant Prospect, or (3) your affiliate; and
  3. who we decide to classify as such based on the criteria in A and B above and other criteria, in our reasonable discretion.
2. If we do not Close a Sale for any Losant Products with a Registered Prospect within one hundred and twenty (120) days of registration, you must again complete the registration process according to this Section (4)(a) for such prospect to re-qualify as a Registered Prospect.
Losant Prospects. We may choose to introduce you to, or send you information on, a prospect of ours when we identify that such prospect may have a need for the services you or we offer (each, a “Losant Prospect”). We are permitted to do the same for other partners and referral partners of ours, even if it is for the same Losant Prospect. You may use the information about the Losant Prospect provided only to market and sell your services to them and not for any other purpose (unless the Losant Prospect otherwise consents). Immediately upon ours or the Losant Prospect’s request, you will promptly discontinue all use of and delete the Losant Prospect’s information.
Non-Competition; Engagement with Prospects. We agree not to compete with you for sales of Losant Products to Registered Prospects, your prospects for whom you are seeking Registered Prospect status, and prospects of yours who were not approved as Registered Prospects within sixty (60) days of such non-approval. However, we may engage with any such parties: (i) to complete the subscription process, (ii) to fulfill or enforce our obligations under an agreement with such party, such as the Customer Terms of Service, (iii) to provide support, (iv) to conduct our standard marketing activities with prospects that have subscribed to or requested any of our marketing materials, or (iv) as otherwise permitted by this Agreement. When we do engage, we may choose how and whether to engage with each prospect. We may elect to contact the prospects directly, whether or not such contact is by us directly or in conjunction with you. Upon our request, you will provide us with the name and contact information of the prospect, and facilitate an introduction. If a prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a prospect.
If we request, you will facilitate our participation on calls with you and various End User(s), Losant Prospects, Registered Prospects or other parties in our reasonable discretion. We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Referral Partner Program.
You will take all reasonable steps to ensure that End Users do not use the Losant Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the Losant Products in violation of the Customer Terms of Service, then you will immediately notify us in writing.

Fees; Revenue Share Eligibility and Payment.

Fees. The Paying Party will pay us all applicable fees for the Losant Products pursuant to the Signature Page and the pricing guide.
Invoicing and Payment Terms.
1. Fees for Losant Products provided during an annual period will be invoiced to the Paying Party at the beginning of such monthly period; and
2. invoices are due for payment by the Paying Party within thirty (30) days of the invoice date.
Referral Fee Eligibility.
1. You will be eligible to receive Revenue Share payments based on our first year's Annual Net Revenue of Losant Products that is attributable only to your Referral Partner Transactions.
2. You will not be eligible to receive a Referral Fee payment or any other compensation for non-Referral Transactions (i.e., Closing a Sale with parties other than Registered Prospects), for Forfeited Transactions (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us or our affiliates; (iii) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you, or (iv) the End User participates as a referrer in the Referral Partner Program.
3. In competitive situations with other partners, we may in our sole discretion elect to provide some or all of a Referral Fee payment to the partner that actually Closes the Sale with a Registered Prospect of yours, which may result in you being ineligible for Referral Fee Payment, regardless of whether or not you registered the Registered Prospect before the other party. We might also determine that you are not eligible for a Referral Fee if you are no longer actively engaged with the End User. If we request, you will provide written documentation that the End User is engaged with you (for example, by providing a copy of your retainer agreement with the End User if we so request).
Referral Fee Payment. We, or one of our affiliates, will pay the Referral Fee amount due to you within forty-five (45) days after the end of an annual contract closing, provided that:
1. you are eligible to receive such Referral Fee payments pursuant to this Section and the “Term and Termination” Section;
2. you have provided us with your bank account information; and
3. you have submitted to us the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Referral Partners, or Form W-8BEN or W-8BEN-E(instructions here) for non-U.S. based Referral Partners).
Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 5(d)(ii)-(iii) remain unfulfilled for 12 months immediately following the Referral Transaction, then your right to receive a Referral Fee arising from any and all Referral Transactions with the associated End User will be forever forfeited (each, a Forfeited Transaction). We will have no obligation to pay you Referral Fee associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5(d)(ii)-(iii), then you will be eligible to receive Referral Fee on Referral Transactions, as long as these Referral Transactions do not involve the same End User associated with a Forfeited Transaction.
Taxes. You are responsible for payment of all taxes applicable to the Referral Fee payment. You will be assessed sales tax unless you provide us with a valid Referrer certificate that indicates tax should not be applied to the Referral Fee amount. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

Records and Inspection

Audit. During the Term and for a period of not less than two (2) years thereafter, you shall maintain true and accurate books of account and records relating to the sale of the Losant Products and other aspects of this Agreement. Upon not less than five (5) days' prior notice and during regular business hours, we or our agents may inspect your books and records to verify the accuracy of any reports, payments or statements furnished or required to be furnished under this Agreement. We or our agents shall have access to, and the right to copy pertinent portions of, any accounting information or other records to the extent necessary to verify your compliance with its obligations under this Agreement.
We shall bear our own costs and expenses associated with any audit unless the results of the audit show that the amounts determined to have been rightfully due us are at least five percent (5%) greater than the amounts previously reported to us for the audited period, in which event you shall pay all costs and expenses associated with such audit. Within thirty (30) days after written notice from us of a deficiency in payment, you shall remit all amounts owing to us, including the costs and expenses associated with the audit, if applicable, together with a late payment penalty calculated as provided for in the Section herein entitled "Fees; Revenue Share Eligibility and Payment."

Training and Support

Training. Unless otherwise agreed on the Signature Page, we will not provide you or the End User with any training or on-boarding support. However, we will make the Documentation available to you and the End User.
Technical Support. If you have elected to purchase support services on the Signature Page, we will provide technical support to the End User as set forth in the Support Level Agreement. If you elect not to purchase support services on the Signature Page, we will only provide support to an End User if we determine in our sole discretion that it is necessary and only between the hours of 9am and 5pm (Eastern Standard Time). Notwithstanding the foregoing, regardless of whether you have elected to purchase support services from Losant, we may communicate directly with any End User at any time about use of the Losant Products and any support issues experienced.

Trademarks

You hereby grant to us a non-exclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos (“Referral Partner Marks”) in connection with the Referral Partner Program and this Agreement.
During the term of this Agreement, you may use our trademark solely in furtherance of this Agreement and the Referral Partner Program as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Referral Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Proprietary Rights

Losant’s Proprietary Rights. Other than as expressly set forth herein, no license to any Losant Background IP is granted to you by this Agreement. We retain all ownership rights in the Company Background IP.
Documentation. We grant you a worldwide, royalty-free, non-exclusive limited license to use the Documentation solely for training and support of End Users.
You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Company Background IP, in whole or in part, by any means, except as expressly authorized in writing by us.
We encourage all customers and partners to comment on the Losant Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments, suggestions and improvements, including those made to the Losant Products during your support thereof, will be non-confidential and that we own all rights to use and incorporate them into the Losant Products, without payment to you.
End User’s Proprietary Rights. Subject to any agreements between us and End User:
1. As between you and End User, End User retains the right to access and use the Losant IoT Platform associated with the Losant Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If we deem it to be necessary based on the relationship status between you and the End User or the particular situation, we may communicate directly with the End User.

Confidentiality

Confidential Information. Each Party (the “Receiving Party”) acknowledges that in connection with this Agreement it will gain access to Confidential Information of the other Party (the “Disclosing Party”). As used herein, "Confidential Information" means any information, knowledge and know-how that may be disclosed to the Receiving Party by the Disclosing Party in writing, orally, visually or in the form of drawings, technical specifications, software, samples, pictures, models, recordings or other tangible or intangible forms, including, but not limited to (i) any current or future information, know-how, techniques, methods, information, tools, development specifications, programming instructions and code, proprietary manufacturing processes and trade secrets; (ii) unpatented inventions, ideas, methods and discoveries, trade secrets, unpublished patent applications and other confidential intellectual property; (iii ) information that the Disclosing Party is obligated to keep confidential on behalf of a third party; (iv) any business, legal, marketing or sales data or information of the Disclosing Party; (v) Losant Prospects, or (vi) any information that, by its nature, would be understood by the Receiving Party to be confidential or proprietary information. Company’s Confidential Information further includes Company Background IP and non-public information regarding features, functionality and performance of the Services.
Exclusions. 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 or (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.
Protection of Confidential Information. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to Losant Prospects. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

Security

Security. We have implemented and will maintain appropriate technical, physical, and organizational measures intended to protect End User Data against unauthorized or unlawful processing and against accidental loss of, or damage to, such End User Data.
Customer Control and Responsibility. You have and will retain sole responsibility for: (a) all End User Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Losant Products; (c) Your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (Referral Partner Systems); (d) the security and use of yours and your Authorized Users' Access Credentials; and (e) all access to and use of the Losant Products and Documentation, directly or indirectly by or through the Referral Partner Program or yours or your Authorized Users' Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Access and Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Losant Products; and (b) control the content and use of End User Data (to the extent that you and your Authorized Users are accessing the Losant Products on behalf of the End User), including the uploading or other provision of End User Data for processing by the Losant Products.

Term and Termination

Term. This Agreement will apply for as long as you participate in the Referral Partner Program, until terminated.
Termination for Convenience. Both you and we may terminate this Agreement on thirty (30) days written notice to the other party.
Termination of Inactive Referral Partners. If you are an Inactive Referral Partner, then we may terminate this Agreement on thirty (30) days written notice to you. If, within fifteen (15) days from the date of such notice, you present us with a plan that will result in you becoming an Active Referral Partner, we will consider this plan in good faith. We may then choose to notify you in writing that we withdraw our notice of termination, in which case the Agreement will not terminate.
Our Termination for Cause. We may terminate this Agreement and/or suspend yours or the End User’s access to the Losant Products: (i) upon thirty (30) days’ notice to you of a breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (vi) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Your Termination for Cause. You may terminate this Agreement upon thirty (30) days’ notice to you of a breach if such breach remains uncured at the expiration of such period.
Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement without cause by us or by you with cause, shall not affect our obligation to pay you a Referral Fees, so long as the related payment by the End User is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on payments received by us from the Paying Party thirty (30) days after the date of such termination or expiration. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Revenue Share payments will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Revenue Share payments after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete all Losant Prospects if we provided them to you and you do not otherwise have consent from the applicable Losant Prospect to continue use of their data and information. Upon termination or expiration, a prospect is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of our trademark, and will remove all Losant trademarks and Referral Partner Program information and references from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause the provision of Losant Products to your (if applicable) or an End User to end.

Referrer Representations and Warranties

You represent and warrant that: (i) you have the full power and authority to grant us the rights granted herein without the need to obtain the further consent or license of any licensor; and (ii) your participation in this Referral Parter Program will not conflict with or cause you to be in breach of any of your existing agreements or arrangements.

Indemnification

By Us. We will indemnify, defend, and hold harmless you, your affiliates, and your officers, directors, employees, agents and representatives from and against any and all third party claims, demands, causes of action, lawsuits or liabilities (collectively “Claims”) arising out of or related to:
1. any actual of alleged infringement by the Losant technology used to provide the Subscription Services of any copyright, U.S. patent, trademark or trade secrets of such third party. However, in no event will Company have any obligations or liability under this Section arising from: (a) use of any Subscription Services in a modified form or in combination with materials not furnished or authorized by Company, including those provided by you in supporting the Losant Products; or (b) any End User Data or other content or data provided by you, End Users, or third parties;
2. any actual or alleged grossly negligent act, omission, willful misconduct, or breach of Agreement by us; or
3. your participation in the Referral Partner Program.
By You. You will indemnify, defend and hold harmless us, our affiliates, and our respective officers, directors, employees, agents and representatives from and against any and all Claims arising out of or related to, any actual or alleged:
1. Negligent act, omission, willful misconduct, or breach of Agreement by you; or
2. Infringement or misappropriation of a third party’s Intellectual Property Rights related to your support of Losant Products and End User Data and all materials that you, acting on End User’s behalf, submit, collect, provide, post, upload, input, or submit for public display via or through the Losant Products.
Potential Infringement. If we believe the technology used to provide the Losant Products may infringe or may be alleged to infringe a third party's Intellectual Property Rights, then we may: (a) obtain the right for you or the End User, at our expense, to continue using the Losant Products; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Losant Products so that they no longer infringe. If we do not believe that the foregoing options are commercially reasonable, then we may suspend or terminate yours and the End User’s use of the impacted Losant Products and provide a pro rata refund of any fees prepaid by the you or the End User applicable to the period following the termination of such Losant Products.
Indemnity Procedures. A party seeking indemnification under this Agreement will promptly notify the other party of the claim and reasonably cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party's prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense. THE INDEMNITIES IN THIS AGREEMENT ARE A PARTY'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR VIOLATIONS BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

Disclaimers; Limitations of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LOSANT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Non-Solicitation

You agree not to intentionally solicit for employment, or for any other engagement, any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any publication (online or paper) or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.

General

Amendment; No Waiver. We may update and change any part or all of this Agreement. If we update or change this Agreement, the updated Agreement will be posted at https://www.losant.com/partners. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.
1. If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Applicable Law. This Agreement shall be governed by the laws of the State of Ohio, without regard to its conflict of laws provisions. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive venue and personal jurisdiction of the courts located Hamilton County, Ohio.
Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Losant Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (“OFAC”) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Losant Products to prohibited countries or individuals or permit use of the Losant Products by prohibited countries or individuals.
Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
1. To Losant IoT, Inc.: Losant, Inc., 1100 Sycamore Street, Cincinnati, Ohio 45202 Attention: General Counsel
2. To you: your address as provided on the Signature Page.
3. We may give electronic notices by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
Entire Agreement. This Agreement is the entire agreement between us for Referral Partner Program and supersedes all other proposals and agreements (including all prior versions of the Losant Referral Partner Program Agreement, if any), whether electronic, oral or written, between us. Unless we agree expressly in writing, we object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. In the event that a conflict exists amongst this Agreement, the Signature Page, and the other documents linked to or incorporated herein, the following order of precedence governs: 1) the Signature Page, 2) this Agreement, and 3) the other documents linked to or incorporated herein. Our obligations are not contingent on the delivery of any future functionality or features of the Losant Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Losant Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement without your prior written consent.
No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Losant Products, our trademarks, or any other property or right of ours.
Sales by Losant. This Agreement shall in no way limit our right to sell the Losant Products, directly or indirectly, to any current or prospective customers.
Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Fees; Revenue Share Eligibility and Payment’, ‘Records and Inspection’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.