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THIS PARTNER PROGRAM AGREEMENT (“AGREEMENT”) GOVERNS YOUR PARTICIPATION IN THE KULTURRA PARTNER PROGRAM. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR OTHERWISE ELECTRONICALLY INDICATING ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. YOU AND KULTURRA.COM, INC. (“KULTURRA”) ARE EACH A “PARTY” AND COLLECTIVELY “PARTIES” TO THIS AGREEMENT.
YOU MAY NOT PARTICIPATE IN THE PARTNER PROGRAM IF YOU (I) DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR (II) ARE OR BECOME (IN WHOLE OR IN PART) A DIRECT COMPETITOR OF KULTURRA EXCEPT WITH KULTURRA’S PRIOR WRITTEN CONSENT. FURTHER, YOU MAY NOT JOIN THE PARTNER PROGRAM FOR PURPOSES OF MONITORING KULTURRA OR ITS SERVICES, THEIR PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
This Agreement is effective between Kulturra and Partner as of the date of the Partner accepting this Agreement.
“Customer” means an individual or entity (including its affiliates) that has entered into a service agreement with Kulturra to purchase Kulturra Services.
“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.
“Kulturra Trademarks” means the trademarks, logos, service marks and trade names of Kulturra.com, Inc., whether registered or unregistered.
“Partner”, “You” or “Your” means an individual or entity that has agreed to the terms of this Agreement and participates in the Kulturra Partner Program.
“Partner Program” means, collectively, the program benefits made available by Kulturra to Partners, and rights and obligations of Partner and Kulturra under this Agreement.
“Taxes” means all federal, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.
“Referred Customer” means any unique Customer that: (a) has signed up for a paid Kulturra Service; and (b) was introduced by a Partner that actively promoted the Service.
“Service” means the products and services that are ordered by Customer from Kulturra.
“We,” “Us” or “Our” means the Kulturra company who You are entering this Agreement with.
“Website” means any websites that are owned, operated or managed by a Partner and that relate to Partner’s activities pursuant to this Agreement
2.1.1. Partner will bear all costs and expenses related to Partner’s marketing or promotion of Kulturra or Partner’s products or services associated with Partner’s participation in the Partner Program in any area, location, territory or jurisdiction, unless otherwise determined by Kulturra in its sole discretion.
2.1.2. A Partner will not (i) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Kulturra; (ii) make any false, misleading or disparaging representations or statements with respect to Kulturra; (iii) prior to the termination of this Agreement in accordance with its terms, target communications to Customers solely on the basis of the intended recipient being a Customer and with the intention of migrating Customers away from the Service; (iv) copy, resemble or mirror the look and feel of Kulturra’s websites or Services or otherwise misrepresent Partner’s affiliation with Kulturra; or (v) engage in any other practices which may adversely affect the credibility or reputation of Kulturra, including but not limited to 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 Kulturra or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.
In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations, including obtaining any licenses required in order for Partner to operate and to offer the products or services associated with Partner’s participation in the Partner Program.
Partner represents and warrants that none of the Partner, its subsidiaries, or any director or officer thereof, is, or is owned or controlled by individuals or entities that are: (i) the target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Asset Control or the U.S. State Department, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions.
Partner will inform Kulturra of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Kulturra by any third party, within 30 days of knowing such information.
If Partner is acting as an agent on behalf of a Customer, then Partner will disclose to the Customer any Fees that Partner is entitled to receive from Kulturra in accordance with this Agreement that are associated with such Customer.
2.5.1. If the Partner is an individual, you must be the older of (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from where you carry out Partner activities.
2.5.2. You represent and warrant that you have the authority to be bound to this Agreement. Partner is responsible for: (a) ensuring that its employees, agents and subcontractors comply with this Agreement and (b) any breach of this Agreement by Partner’s employees, agents or subcontractors.
2.5.3. 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.
2.5.4. Partner acknowledges and agrees that Kulturra may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Kulturra’s website and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Kulturra will provide reasonable notice by email. Partner’s continued participation in the Kulturra Partner Program after the amended Partner Program Agreement is posted to Kulturra’s website 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 Kulturra Partner Program.
2.5.5. The Partner shall acknowledge and promptly respond to reasonable requests for information from Kulturra. From time to time, the Partner shall take such action and execute and deliver such documents as Kulturra reasonably requests.
Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing and fee plan associated with a Partner’s activities pursuant to the Partner Program, Partner will be entitled to receive certain fees from Kulturra (the “Fees”). The revenue sharing plans are set out in Schedule A.
3.2.1. Fees payable to the Partner as described in Schedule A will be paid out directly from Kulturra to the Partner.
For Partners who bundle Kulturra Services with their own products or services, and therefore bill the Customer their products or services together with Kulturra’s Services, Kulturra will bill the Partner Kulturra’s Services, less Partner Fees as described in Schedule A.
3.2.2. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes that arise from or as a result of any activities under this Agreement. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3.1. Notwithstanding anything to the contrary in this Agreement, Kulturra will not be responsible to pay any Fees:
(a) related to amounts that have been refunded to Customers by Kulturra;
(b) for a Referred Customer created or owned in whole or in part by a Partner;
(c) related to fraudulent sales;
(d) related to revenues that have been subject to chargebacks;
(e) to Partners who are employed by Kulturra (whether full-time, part-time, term or any other employment-type relationship);
(f) to Partners who are employed by the Customer to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship); or
(g) related to revenues from existing Customers of Kulturra who were referred by an individual or company prior to participating in the Partner Program.
3.3.2. If any Fees paid by Kulturra are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.1, or to have been paid in error, Kulturra will have the right, at its sole discretion, to: (a) reclaim any Fees paid to Partner in error; or (b) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Kulturra, Partner will pay to Kulturra the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
3.3.3. Kulturra reserves the right to modify the Fees 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, Kulturra’s determination will be final and binding.
3.3.4. Audit. Partner may request an independent third-party auditor audit Kulturra’s relevant books and records to determine the accuracy of Fees, as long as the Fees in question are within ninety (90) days from the date of payment. Partner may conduct an audit once per calendar year during the term upon no less than thirty (30) days’ prior written notice. The auditor may conduct the audit during Kulturra’s normal working hours in a manner designed to minimize disruption. Any auditor selected by Partner under this provision must first enter into a nondisclosure agreement with Kulturra. Each Party will receive a single copy of the report, and the results of any audit will be considered Kulturra’s Confidential Information. Partner will pay for the audit unless the report reveals a net underpayment of at least ten percent (10%). In such a case, Kulturra will pay the amount of the underpayment and reimburse Partner for the reasonable cost of the audit.
4.1.1. Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party. Kulturra will not be responsible to pay any future Fees upon termination of the Agreement.
4.1.2. Kulturra reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Kulturra will provide reasonable notice by email.
4.2.1. Upon termination of this Agreement: (a) each Party will 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 Confidential Information (as defined below)); (b) Partner will immediately cease displaying any Kulturra Trademarks on any Website or otherwise; and (c) all rights granted to Partner under this Agreement will immediately cease, including but not limited to, the right to receive any payments of Fees under this Agreement, unless otherwise determined by Kulturra in its sole discretion.
4.2.2. This Section 4.2 and the following Sections will survive any termination or expiration of this Agreement: Section 1 (Definitions), Section 5.1 (Proprietary Rights), Section 6 (Confidentiality), Section 7 (Disclaimer of Warranty), Section 8 (Limitation of Liability and Indemnification), and Section 9 (General Provisions).
In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
As between Partner and Kulturra, all demographic and other information relating to Customers including Referred Customers, prospective Partners and Partners, the Services, 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 Kulturra or otherwise related to the Service, Kulturra Partner Program, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Kulturra Property”) will be and remain the sole and exclusive property of Kulturra. To the extent, if any, that ownership of any Kulturra Property does not automatically vest in Kulturra by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to Kulturra, upon the creation thereof, all rights, title and interest Partner may have in and to such Kulturra Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.
Partner grants to Kulturra a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and license to use and display in any manner the Partner’s trademarks, service marks, logos, trade names, copyrighted content, graphic files, images and other intellectual property, in connection with and for the purpose of performing its obligations and exercising its rights under this Agreement.
6.1. “Confidential Information” will include, but will 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, product designs, sales, costs (including any relevant processing fees), 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. For the avoidance of doubt, as between Kulturra and Partner, Customer Data is the Confidential Information of Kulturra.
6.2. Each Party agrees to use the other Party’s/ies’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 6. Each Party agrees that it will 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 under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; 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 will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.
The Kulturra Partner Program and the Service are provided “as-is”. Kulturra makes no warranties under this Agreement, and Kulturra expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, Kulturra further disclaims all representations and warranties, express or implied, that the Service satisfies all of Partner’s or Customer’s requirements and or will be uninterrupted, error-free or free from harmful components.
Kulturra will have no liability with respect to the Kulturra Partner Program, the Service, or Kulturra’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, or Partner’s participation or inability to participate in the Kulturra Partner Program, even if Kulturra has been advised of the possibility of such damages. In any event, Kulturra’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Kulturra 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 a Customer and a Partner is strictly between the Customer and the Partner, and Kulturra is not obligated to intervene in any dispute arising between the Customer and the Partner. Under no circumstances will Kulturra be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Customer. These limitations will apply even if Kulturra has been advised of the possibility of such damages. The foregoing limitations will apply to the fullest extent permitted by applicable law.
Partner agrees to indemnify, defend and hold harmless Kulturra 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 Kulturra granted by Partner to any Customer, prospective Partner or other third party; (d) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference); (e) any third party claim that Partner’s products or services infringes the intellectual property or other rights of a third party; (f) Partner Taxes, including any audits or penalties related thereto; (g) the performance, non-performance or improper performance of the Partner’s products or services; (h) Partner’s relationship with any Customer; and (i) any breach of applicable law by the Partner.
In claiming any indemnification under this Agreement, the Indemnified Party will 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 will 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.
In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 or 6 above, in addition to all other rights and remedies available to Kulturra under this Agreement and under applicable law, Kulturra will 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, (c) receive a prompt refund of all amounts paid to Partner under this Agreement, and (d) be indemnified for any losses, damages or liability incurred by Kulturra in connection with such violation, in accordance with the provisions of this Section 8.
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 under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to recommence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.
The Parties to this Agreement are independent contractors. Kulturra is not an agent, representative or related entity of the Partner. Neither Kulturra nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party, except where the Partner expressly authorizes Kulturra to act on its behalf in this Agreement. This Agreement will 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.
Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will 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 on file, and to partner@kulturra.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. Notice will be sent to the Partner at the address on file, and to Kulturra at 21151 S. Western Ave., Suite 215, Torrance, CA 90501, USA.
The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will 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 will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.
This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Kulturra nor the Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
All the terms and provisions of this Agreement will 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. Kulturra will be permitted to assign this agreement without notice to or consent from Partner. Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without Kulturra’s prior written consent, to be given or withheld in Kulturra’s sole discretion. Transfer can include acquisition, merger, change of control, or other forms of transfer. To submit a request for Kulturra’s consent to assignment or transfer, contact partner@kulturra.com.
This Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Any lawsuit arising out of or in connection with this Agreement shall be adjudicated by the state or federal courts in Los Angeles County, California.
Partner and its affiliates covenant not to assert patent infringement claims against Kulturra, or Kulturra products and services.
Kulturra is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, regardless of their similarity to Partner’s products or services, provided that Kulturra does not use Partner’s Confidential Information in so doing.
If Partner provides any feedback (including identifying potential errors and improvements) to Kulturra concerning the Partner Program, or any aspects of the Service (“Feedback”), Partner hereby assigns to Kulturra all right, title, and interest in and to the Feedback, and Kulturra is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, or the Service and to create other products and services. Kulturra will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.
If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement.
| Payment Center Plan | Fees |
| PRO | 20% |
| ENTERPRISE | 15% |
| UNLIMITED | 5% |
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