PARTNER PROGRAM TERMS AND CONDITIONS
PARTNER PROGRAM TERMS AND CONDITIONS
These Partner Program Terms and Conditions (the “Terms”) are incorporated into, and constitute an essential part of, the Partner Agreement (the “Agreement”) between We Are Kaizen LLC d.b.a. KaizenCX (“KaizenCX”) and Partner. Unless otherwise defined, capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
I. PARTNER OBLIGATIONS.
A. Partner shall use and observe the highest standards of honesty, integrity and fair dealing. Partner will not discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of KaizenCX or any Provider.
B. To the extent required under the Agreement between KaizenCX and a Provider or if required by the terms of Exhibit 1 to the Agreement for Partner to be eligible for a Tier set forth therein, Partner shall continually provide reasonable customer service and care to Customers to ensure satisfaction and proper account management.
C. To the extent required under the Agreement between KaizenCX and a Provider or if required by the terms of Exhibit 1 to the Agreement for Partner to be eligible for a Tier set forth therein, Partner shall submit complete and accurate forms and other paperwork, including, but not limited to Customer’s credit information, copies of the Customer’s latest provider invoices and any other forms deemed reasonably necessary by the applicable Provider. Partner acknowledges that errors in such paperwork may result in delays and possibly even cancellation of orders.
D. To the extent required under the Agreement between KaizenCX and a Provider, Partner shall use commercially reasonable efforts to assist the Provider in collection efforts regarding any Customer account balances which are past due (regardless of whether Partner is entitled to residual Commissions in connection with the account); provided, however, the foregoing shall not apply if Partner is at Tier 1 (as defined in Exhibit 1 to the Agreement).
E. During the Term of the Agreement and for a period of one (1) year following the termination thereof, Partner shall not solicit or sell competing services (“Competing Services”) to any Customer to whom Partner or another KaizenCX sub-agent has previously sold Services and the Competing Services would replace or reduce the Services to which the Customer is currently subscribed. If Partner does solicit or sell Competing Services to a Customer and KaizenCX is or could reasonably be adversely affected, such conduct shall be considered a material breach of this Agreement and all of Partner’s rights hereunder, including any right to continue to receive Commissions, shall immediately terminate. The provisions of this Section I(E) are necessary to enable KaizenCX to comply with the requirements of certain Provider Agreements. KaizenCX will not enforce this Section I(E) unless KaizenCX receives notice from a Provider that KaizenCX is in violation of the applicable Provider Agreement due to Partner’s actions in violation of this Section I(E).
F. Partner shall abide by all applicable anti-corruption and anti-bribery laws, including but not limited to the United States Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.) and any other applicable laws or regulations. Partner shall not pay, offer, or promise to pay, or authorize the payment directly or indirectly of any money, gift, or anything of value greater than $250 (a “Kickback”) to any employee or agent of: (a) a Provider in order to gain a business advantage; or (b) a current or prospective Customer to induce the Customer to purchase Services. Such Kickback is considered commercial bribery and a violation of state criminal laws and/or a violation of federal laws such as the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO.
G. Partner will not incur any processing fees in connection with Commission payments that are made via ACH to an account based in the United States. If Partner requests that KaizenCX pay Commissions in any other form, KaizenCX will pass through the direct cost incurred by KaizenCX for making such payment, plus an administrative charge of $30.00 per payment.
H. Partner understands, acknowledges and agrees that a vital requirement of Partner’s relationship with KaizenCX is Partner keeping abreast of product developments, promotions, market prices, news, etc. regarding the Services, KaizenCX and Providers. As a result, Partner agrees that Partner shall: (1) subscribe to and accept all communications from KaizenCX in whatever form customarily utilized by KaizenCX (e.g. email); and (2) take no action which would discontinue or preclude Partner’s receipt of such communications.
I. Partner agrees to maintain regular contact with each Customer in order to provide support and ongoing customer service, including but not limited to assisting with Customer contract renewals. If KaizenCX reasonably determines that Partner is not satisfying this requirement, KaizenCX will notify Partner in writing regarding the same. If Partner is unwilling or unable to fulfill the requirement within thirty (30) days of such notice and KaizenCX incurs costs to perform these duties on Partner’s behalf, either directly or indirectly, KaizenCX may reduce Partner’s Commission in an amount to be reasonably determined by KaizenCX.
II. KaizenCX’S OBLIGATIONS.
A. KaizenCX shall use commercially reasonable efforts to help Partner select a Provider for each Customer based on Partner’s request for information regarding service capabilities.
B. Partner acknowledges that KaizenCX or one or more of KaizenCX’s other independent sales representatives may already be involved with or have a preexisting relationship with a Customer.
C. KaizenCX shall authorize Partner to use the marketing materials provided by or previously approved by Providers for the purpose of marketing and selling the Services.
III. NON-SOLICITATION, ETC.
Partner hereby agrees that during the Term and for a period of one (1) year thereafter, Partner shall not directly or indirectly:
A. solicit any Provider for the purpose of securing a direct agency agreement with the Provider without KaizenCX’s prior written approval which approval shall not be unreasonably withheld (provided, however, this provision shall not apply to any Provider with whom Partner already had an agreement in place before the Effective Date or for whom Partner already marketed services through another master agent or other distributor before the Effective Date);
B. solicit, request or influence any Customer, Provider or other person which has a business relationship with KaizenCX to discontinue such relationship or otherwise adversely affect the relationship;
C. solicit or otherwise attempt to cause any Customer of a Provider, including but not limited to any Customer procured by Partner hereunder, to receive the Services or similar services other than through KaizenCX hereunder; or
D. if Partner has utilized the resources of KaizenCX with respect to any sales opportunity, solicit or otherwise attempt to sell any Services directly through a Provider or through another master agent with respect to such opportunity.
IV. PARTNER’S STATUS AS INDEPENDENT CONTRACTOR.
A. Partner is an independent contractor and not an employee, franchisee, partner or co-venturer of KaizenCX or any of its Providers.
B. Partner is not entitled to receive support, office space, resources, or any direct benefit and/or training from the employees, officers, representatives or agents of KaizenCX.
C. If required by applicable law, KaizenCX will issue an IRS Form 1099 to Partner annually.
D. Partner will be solely responsible for any and all tax liabilities resulting from payments made to Partner under this Agreement.
E. Partner shall pay all of its own expenses in connection with all aspects of its performance hereunder.
F. Partner shall not incur any obligation of indebtedness on behalf of KaizenCX or any Provider. Partner shall not represent or imply to any third party that Partner possesses the power or authority to enter into a contract or commitment in the name of or on behalf of KaizenCX or any Provider.
G. Partner is free to perform services without the control or direction of KaizenCX.
H. Partner is performing work tasks that are outside the usual course of KaizenCX's business activities.
I. Partner is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work that Partner will perform hereunder.
V. INDEMNIFICATION, LIMITATIONS OF LIABILITY, DISCLAIMERS, ETC.
A. PARTNER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS KaizenCX AND KAIZENCX'S AFFILIATES, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, ITS AGENTS, AND SUCCESSORS, FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, SUITS, LIABILITIES, PROSECUTIONS, PENALTIES, SETTLEMENTS, LOSSES, DAMAGES, COSTS, CHARGES, ATTORNEYS’ FEES, JUDGMENTS, OR SUMS OF MONEY AWARDED TO ANY PARTY AND ACCRUING OR ASSESSED AGAINST KaizenCX RESULTING FROM ANY ACT AND/OR OMISSION OF PARTNER WHILE ENGAGED IN, OR IN CONNECTION WITH, THE DISCHARGE OR PERFORMANCE OF THE SERVICES TO BE DONE OR PERFORMED BY PARTNER HEREUNDER (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURY, DEATH OR DAMAGE TO PROPERTY)
B. PARTNER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS KAIZENCX AND KAIZENCX'S AFFILIATES, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS AND SUCCESSORS FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, SUITS, LIABILITIES, PROSECUTIONS, PENALTIES, SETTLEMENTS, LOSSES, DAMAGES, COSTS, CHARGES, ATTORNEYS’ FEES, JUDGMENTS, OR SUMS OF MONEY AWARDED TO ANY OF PARTNER’S SUB-CONTRACTORS, MARKETING AGENTS, SALES REPRESENTATIVES, EMPLOYEES AND/OR ANY THIRD PARTY UTILIZED BY PARTNER IN ITS SALES AND MARKETING EFFORTS. PARTNER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE PAYMENT OF COMPENSATION, FEES, BONUSES AND SALARIES TO ANY SUCH PERSON.
C. UNDER NO CIRCUMSTANCES SHALL KAIZENCX OR ANY PROVIDER BE LIABLE TO PARTNER FOR DAMAGES OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE SUSPENSION OR INTERRUPTION OF SERVICES, DELAYED INSTALLATION DATES, MISSED MOVE DATES, TERMINATION OF THE PROVISION OF ANY SERVICE BY THE APPLICABLE PROVIDER, TERMINATION OF COMMISSIONS THAT CORRESPOND TO TERMINATION OF COMPENSATION PAYMENTS TO KAIZENCX BY A PROVIDER, OR TERMINATION BY KAIZENCX PURSUANT TO SECTION 4(c) OF THE AGREEMENT.
D. IN NO EVENT SHALL KAIZENCX BE LIABLE TO PARTNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS OR LOSS OF GOODWILL, ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR KAIZENCX’S AND/OR ANY PROVIDER’S PERFORMANCE OR NONPERFORMANCE HEREUNDER. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL KaizenCX’S TOTAL LIABILITY HEREUNDER EXCEED AN AMOUNT EQUAL TO THE LESSER OF THE COMMISSIONS DUE TO PARTNER DURING THE THREE (3) MONTHS PRIOR TO ANY CLAIM OF BREACH OR DAMAGE OR $5,000.
E. KAIZENCX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE SERVICES PROVIDED BY ANY PROVIDER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
VI. MISCELLANEOUS.
A. Partner understands and acknowledges that KaizenCX will not pay Commissions to Partner for certain Services (“Non-Commissionable Services”). KaizenCX will use commercially reasonable efforts to note any Non-Commissionable Services in the Portal.
B. Partner understands and acknowledges that KaizenCX reserves the right to revoke Portal access to Partner or to any user in its sole and absolute discretion, at any time and for any or no reason.
C. Partner understands and acknowledges that KaizenCX maintains a zero-tolerance Anti-Harassment/Discrimination/Retaliation Policy (“Policy”). The Policy applies to all persons involved in KaizenCX’s business and prohibits harassment, disrespectful or unprofessional conduct by any employee or independent contractor of KaizenCX.
The complete Policy and additional information related to reporting any conduct that does not comply with the Policy can be found in KaizenCX’s Portal at https://kaizencx.biz/partner-program-harassment-anti-discrimination-policy. By signing the Agreement, Partner acknowledges that Partner: (1) has read and agrees to abide by the Policy; and (2) will immediately report any conduct that violates the Policy as outlined in the section titled “Reporting Harassment” for investigation and remedial action.
D. This Agreement is binding upon and shall inure to the benefit of the successors and assigns of each party. Any assignment by Partner of this Agreement or Partner’s rights hereunder without the prior written consent of KaizenCX shall be null and void. KaizenCX will not unreasonably refuse to grant such consent; provided, however, KaizenCX may refuse to consent to Partner’s assignment of this Agreement or Partner’s rights hereunder to a KaizenCX competitor (for avoidance of doubt, such refusal shall be deemed reasonable for purposes of this Section VI(D)). KaizenCX may freely assign this Agreement and/or KaizenCX’s rights hereunder. This Agreement is binding upon and shall inure to the benefit of the successors and assigns of each party.
E. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Should any provision contained in this Agreement violate any laws of any other state in which this Agreement is to be performed, that provision shall be deemed void to the extent it is in violation without invalidating any other provision contained herein.
F. In the event of any dispute or controversy or legal action of any kind concerning the terms of this Agreement, the prevailing party shall be entitled to all reasonable attorneys’ fees and costs.
G. This Agreement may not be changed or modified except by a written agreement signed by the parties hereto.
H. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and shall supersede all previous communications, representations, understandings, and agreements, whether oral or written, between the parties.
I. Partner may request in writing that KaizenCX engage in legal action to collect unpaid Compensation (“Collection”). KaizenCX may determine, in its sole discretion, whether or not to agree to the request:
(1) If KaizenCX agrees to pursue Collection in response to such request, Partner shall be liable for all fees and costs incurred by KaizenCX in connection with the Collection, including but not limited to court costs and attorney’s fees (collectively, “Collection Costs”), regardless of the outcome of the Collection;
(2) Partner acknowledges and agrees that KaizenCX may subtract Collection Costs from any Commissions owed to Partner. If KaizenCX reasonably anticipates that Partner’s Commissions over the following ninety (90) days will be insufficient to fully reimburse KaizenCX for all Collection Costs, KaizenCX may demand the deficiency from Partner and Partner shall thereafter have thirty (30) days within which to pay same; and
(3) Partner acknowledges and agrees that in the event KaizenCX incurs any Collection Costs, the applicable Compensation amount to be used for the calculation of Partner’s Commissions shall be reduced by the amount of any unreimbursed Collection Costs.
J. Partner understands and acknowledges that KaizenCX may destroy any records it maintains related to Partner in the event KaizenCX:
(1) owes Partner no Commissions for a period of at least three (3) years, or
(2) this Agreement is terminated.