PlanSwift Referral Terms and Conditions
By completing and submitting the sign up application (the “Application”) you (hereinafter referred to as “you” or “Referral Partner”) acknowledge that you have read these terms and conditions (the “Terms and Conditions”) and that you understand and agree with them. Your acknowledgment and agreement to the Terms and Conditions is effective upon PlanSwift’s acceptance of the Application.
(a) Referral Services. Upon acceptance of the Application by PlanSwift, you will become a Referral Partner and be authorized, on a nonexclusive basis, to refer or introduce to End Users the PlanSwift Software, through any means permitted by PlanSwift in advance, including without limitation, an in-person introduction, a telephone introduction, a written introduction (including email), a joint sales call, or a hypertext reference link from your website to PlanSwift’s website, for use by the End Users internal use and not for resale, redistribution or other transfer of the PlanSwift Software to any other person or entity. PlanSwift reserves the right to add, modify, or otherwise change approved advertising strategies or methods at any time, for any reason without notice to you.
(b) Rights to Use Trademarks. During the time you are authorized by PlanSwift, you shall be authorized by PlanSwift to use the trademarks and logos of PlanSwift relating to the PlanSwift Software (the “PlanSwift Marks”) solely in connection with the advertisement and promotion of the PlanSwift Software. Use of any PlanSwift Marks by Referral Partner will be allowed only in accordance with PlanSwift’s trademark policies as determined by PlanSwift from time to time. Nothing contained in these Terms and Conditions shall give Referral Partner or any End User any interest in any of the PlanSwift Marks or other intellectual property rights. Referral Partner shall not: (i) represent that it possesses any proprietary interest in the PlanSwift Software; (ii) register, or have registered, any trademarks, trade names or symbols of PlanSwift or PlanSwift (or which are similar to the PlanSwift Marks); (iii) register any domain name using any of the PlanSwift Marks without PlanSwift’s prior written consent; (iv) use “PlanSwift”, or any term that can be misconstrued as “PlanSwift” in online adword placement within internet search engines or within any URL web addresses, including text manipulation, or the separation of terms; or (v) except for the specific purposes described in herein, use the PlanSwift Marks in any manner whatsoever.
(c) Restrictions. Referral Partner shall not: (i) sell or otherwise provide the PlanSwift Software or purport to represent PlanSwift to any potential End Users not using Referral Partner’s planroom; (ii) purport to provide or distribute the PlanSwift Software via online marketplaces like Amazon.com and auction sites like eBay; (iii) use unsolicited email (e.g., spam) as a means of marketing the PlanSwift Software or associate PlanSwift in any way with unsolicited email; (iv) market the PlanSwift Software by mass mail or telesales; (v) engage in any advertising, including but not limited to, trade magazine and Internet-based advertising, if such advertising does not contain a disclaimer notifying such persons that Referral Partner may not sell to persons not using Referral Partner’s planroom; (vi) make any representations, warranties or guaranties on PlanSwift’s behalf or with respect to the specifications, features or functionality of the PlanSwift Software that are inconsistent with the literature distributed by PlanSwift; (vii) make any false or misleading representations with regard to PlanSwift or the PlanSwift Software; or (viii) participate or engage in any illegal, deceptive, misleading, unethical, or improper practices.
(d) PlanSwift Reservation. PlanSwift reserves the unrestricted right (i) to market, license, distribute, and support the PlanSwift Software worldwide in any location, directly to End Users or through any other channel, including, but not limited to value added resellers, distributors, resellers or retail outlets, or other referrers and (ii) to modify, augment, or otherwise change the methods in which PlanSwift markets, distributes, or supports the PlanSwift Software, without notice or any liability to Referral Partner.
2. Continuing Responsibilities.
(a) License Fees for PlanSwift Software. PlanSwift shall set the price of the PlanSwift Software and maintenance in its sole discretion.
(b) Cost of Promotion. All costs relating to the reference of the PlanSwift Software by Referral Partner, including, without limitation, costs of promotion, advertising or other business expenses (including credit card processing fees and sales or similar taxes), shall be borne by Referral Partner.
(c) Business Practices. Referral Partner will not: (i) conduct business in any manner that would reflect unfavorably on the PlanSwift Software or the name, goodwill and reputation of PlanSwift; (ii) make any false or misleading representation with respect to PlanSwift or the PlanSwift Software; or (iii) publish or use any misleading or deceptive advertising material relating to PlanSwift or the PlanSwift Software.
(d) Compliance with Law. Referral Partner shall insure at all times that its performance under these Terms and Conditions shall comply with all applicable laws, including without limitation, laws governing email marketing and anti-spam.
(a) Referral Fees. Subject to these Terms and Conditions Referral Partner shall receive, as compensation for the referral services hereunder, a fee in an amount equal to thirty percent (30%) of Gross Proceeds received from sales of software and maintenance referred by Referral Partner to End Users (the “Referral Fee”) located in the United States and Canada. The Referral Fee shall be limited to all purchases and maintenance and support fees (except for renewals of maintenance and support) paid by an End User (as confirmed by your AID) during the twelve (12) month period (so long as these Terms and Conditions is in effect) following the first purchase by such End User (the “End User Fee Period”). Any purchases and fees paid by an End User after such End User’s Fee Period shall not accrue Referral Fees. Referral Fees will not be paid to Referral Partner, or organizations, who use the Partner Program as a means to obtain licenses at a discounted rate for their own or company use. PlanSwift will not honor transactions that are believed to be manipulative or otherwise disingenuous in nature.
(i) “Gross Proceeds” means the cash proceeds actually received and collected by PlanSwift for all sales or licenses of the PlanSwift Software to End Users referred by Referral Partner (as confirmed by your AID) located in the United States and Canada less returns and credit card processing fees and sales or similar taxes. Gross Proceeds shall include initial sales, license or subscription fees and any renewal, re-subscription or re-sale amounts received during the 12-month period from the Effective Date from End Users who are introduced by Referral Partner. Gross Proceeds does not include third-party “plug-ins”.
(b) Payment. PlanSwift shall collect payments directly from End Users and shall pay to Referral Partner the applicable Referral Fee in accordance with PlanSwift’s then-standard payment schedule (currently every two weeks, but subject to change in PlanSwift’s sole discretion).
(c) Tracking Records and Inspection Rights. PlanSwift only tracks leads when a contact goes through your Referral Partner link, which is supplied, to you upon approval of your Application. PlanSwift is not obligated to pay Referral Fees on a sale that is not electronically tracked to your referral identification number (AID). Referral Partner shall establish sales tracking procedures sufficient for Referral Partner to unambiguously distinguish sales of the PlanSwift Software to End Users. Referral Partner shall make and keep full and accurate books and monthly records currently updated with respect to sales and licenses of the PlanSwift Software. Referral Partner shall report such data to PlanSwift from time to time, as may be requested by PlanSwift. Referral Partner expressly acknowledges and agrees that transparency and disclosure of records relating to sales of products and materials is a material part of these Terms and Conditions. PlanSwift reserves the right to accept or reject any End User or prospective customer. If disputes arise regarding attribution of sales generated through the PlanSwift Software or calculation of the Referral Fee the Parties agree to first resolve any such dispute mutually and second through other methods (i.e. litigation, mediation or arbitration).
4. Maintenance and Service Obligations.
Referral Partner shall remain responsible for servicing and maintaining its own products and services and PlanSwift have no obligation to provide any such service to Referral Partner. PlanSwift will provide servicing and maintenance for the PlanSwift Software.
5. Proprietary Information and Non-Disclosure.
(a) Ownership. All right, title and interest in and to the PlanSwift Software, including without limitation intellectual property embodied in the PlanSwift Software, are and shall at all times remain the property of PlanSwift or PlanSwift’s licensors as the case may be. Referral Partner shall do nothing inconsistent with PlanSwift’s ownership of the PlanSwift Software, including any attack on the validity of the intellectual property or PlanSwift’s title thereto. All goodwill accrued through use of the PlanSwift Software by Referral Partner and its employees and agents shall inure to the benefit of PlanSwift. Referral Partner acknowledges that nothing in these Terms and Conditions shall give Referral Partner any right, title or interest in the PlanSwift Software or any other intellectual property of PlanSwift. PlanSwift reserves all rights not specifically granted in these Terms and Conditions.
(b) Confidential Information. Referral Partner acknowledges that, from time to time, it may be exposed to certain information concerning PlanSwift, the PlanSwift Software, and the terms of these Terms and Conditions, that may be PlanSwift’s confidential and proprietary information and that are not generally known to the public (“Confidential Information”). Referral Partner agrees that it will take appropriate steps to protect such Confidential Information from any unauthorized disclosure, that it will not disclose such Confidential Information to any third party, and that it will not use any Confidential Information (other than as authorized by these Terms and Conditions without the prior written consent of PlanSwift. Referral Partner’s obligations with respect to Confidential Information shall continue for five (5) years from the date of termination of these Terms and Conditions. Referral Partner will only disclose such Confidential Information to its employees who have a need to know such Confidential Information and acknowledges that it shall be solely responsible to ensure that all of its employees and agents abide by its duties of confidentiality as set forth herein.
Referral Partner will defend and indemnify PlanSwift and its managers, members, officers, directors, equity owners, affiliates, employees, representatives and agents (the “PlanSwift Indemnified Parties”) against and hold the PlanSwift Indemnified Parties harmless from any and all losses incurred by the PlanSwift Indemnified Parties and arising out of (i) the services provided by Referral Partner to any third-party, (ii) any breach by Referral Partner of these Terms and Conditions, (iii) any misrepresentation to any third party regarding PlanSwift or the PlanSwift Software, or (iv) the gross negligence or willful malfeasance of Referral Partner.
7. Term and Termination.
(a) Termination. PlanSwift may immediately terminate Referral Partner’s participation in the referral program at will, at any time, with or without cause upon notice (oral or written) to Referral Partner.
(b) Consequences. Upon termination of Referral Partner’s participation in the referral program, Referral Partner shall: (i) cease all display, advertising, and use of all materials relating to the PlanSwift Software; (ii) promptly return to PlanSwift all business and marketing information and other tangible property representing PlanSwift’s Confidential Information or intellectual property rights and all copies thereof; and (iii) erase or delete any such Confidential Information held by Referral Partner in electronic form. Upon termination, only accrued and earned Referral Fees shall be payable and all other payment or compensation obligations shall immediately cease. PlanSwift shall have the right to offset and/or withhold amounts owed to Referral Partner in the event Referral Partner fails to comply with these Terms and Conditions.
8. General Provisions.
(a) Assignment. Referral Partner’s participation in the referral program, or any part thereof, may not be assigned or subcontracted or by operation of law to any third party whatsoever without the express written approval of PlanSwift.
(b) Governing Law. These Terms and Conditions shall be governed by, and construed and interpreted only in accordance with the laws of the State of Nevada, without giving effect to any choice or conflict of law provision.
(c) Relationship of the Parties. Each Party is acting as an independent contractor and not as an agent, partner, or joint venturer of the other for any purpose. Nothing contained herein shall be deemed to create any relationship between the Parties other than that of principal and independent contractor.
(d) Survival. Notwithstanding any termination of Referral Partner’s participation in the referral program, Sections 5 (Proprietary Information and Nondisclosure), 6 (Indemnification), 7(b) (Consequences) and 8 (General Provisions) shall survive and continue to be in effect in accordance with their terms.
(e) Amendments. PlanSwift reserves the sole right to amend these Standard Terms and/or the referral program at any time and from time to time in its sole discretion. Your continuing participation in the program will constitute your acceptance of any changes.
(f) Entire Agreement. Referral Partner has read these Terms and Conditions and agrees to be bound hereby and further agrees that it constitutes the complete and entire agreement with respect to the subject matter hereof and supersedes all previous communications, oral or written, between them relating to the subject matter hereof. No representations or statements of any kind made by PlanSwift that are not expressly stated herein shall be binding on PlanSwift.
(g) Notices. All notices required or permitted under these Terms and Conditions will be in writing and delivered by courier or overnight delivery services, or by certified mail, and will be deemed given upon receipt. Notice given by email or fax will be valid only upon acknowledgement of receipt by recipient in writing or by email or fax. Notices to Referral Partner shall be delivered to the address set forth on Application and Notice to PlanSwift shall be delivered to the address set forth on PlanSwift’s website.
(h) Remedies; Waiver. PlanSwift shall not be liable for indirect or accidental damages (loss of revenue, commissions, etc.) due to referral tracking failures, loss of database files, and any results of “intents of harm” to the program or our website. PlanSwift does not make any expressed or implied warranties with respect to the Referral program and/or products sold at this site. PlanSwift makes no claim that the operation of the Referral program and our website will be error-free and PlanSwift will not be liable for any interruptions or errors.
(i) Headings. Headings and section numbers are for convenience and should not be used to interpret these Terms and Conditions.