Yodify Agency Partner Program Agreement Updated: Oct 02, 2024

Definitions

Responsible Conduct

1. Marketing Expenses

   The Agency Partner is responsible for all costs and expenses related to marketing or promoting Yodify or any Yodify Related Entity, as well as Agency Partner's Apps, Agency Partner Websites, Channel Platform, or other products or services related to Agency Partner's participation in the Agency Partner Program (collectively, “Agency Partner Marketing Activities”) in any location, area, jurisdiction, or territory, unless otherwise determined by Yodify in its sole discretion.

2. Marketing Emails

   Agency Partner shall not participate in any Agency Partner Marketing Activities unless explicit permission is granted in this Agreement. If Agency Partner possesses a list of email addresses on which the individuals listed therein have explicitly consented to receive communications from Agency Partner ("Opt-in List”), Agency Partner may submit to Yodify a written request to send emails to these individuals concerning the offerings of Yodify and Yodify Related Entities. Yodify may, at its sole discretion, grant Agency Partner permission to send such emails. Agency Partner shall ensure adherence to all relevant laws, rules, regulations, and directives when carrying out all Agency Partner Marketing Activities. This includes, but is not restricted to, those pertaining to email marketing and the practice of "spamming.” Agency Partner will refrain from sending emails to any Agency Partner or Client whose email address it has obtained through Yodify, unless prior consent has been obtained from the relevant Agency Partner or Client. Agency Partner shall, without restricting the generality of Section 2.2, (i) refrain from forwarding any emails concerning Yodify or Yodify-related entities to individuals or entities that have not explicitly requested such information; (ii) commit to incorporate Agency Partner's contact details and "unsubscribe” instructions into all correspondence pertaining to Yodify, Yodify Related Entities, the Service, and the Yodify platform; and (iii) not suggest or imply that these communications are being transmitted on behalf of Yodify or any entity affiliated with Yodify.

3. Act Responsibly

   Agency Partner shall not: (i) participate in any marketing endeavors pertaining to Yodify or Yodify-related entities, that includes, but is not limited to, offline and online approaches such as video platforms, fax, broadcast, telemarketing, SMS/text message, email correspondence, social media, or broadcasting; (ii) employ aggressive advertising or marketing techniques, such as malware, spyware, or similar methods, in any of its activities pertaining to Yodify or Yodify-related entities; (iii) engage in the dissemination of any deceptive, misleading, false, or derogatory representations or statements concerning Yodify or Yodify Related Entities; (iv) prior to the termination of this Agreement in accordance with its terms, target Client with communications having the the intent of migrating Clients away from the Service; (v) replicate, resemble, or mirror the look and feel of Yodify's websites, Services, or Trademarks, nor shall they misrepresent the Agency Partner's affiliation with Yodify or Yodify Related Entities; or (vi) participate in any other activities that could potentially damage or negatively affect the credibility or reputation of Yodify or any Yodify Related Entity, including but not limited to utilizing any Agency Partner Website in an improper manner or hosting any content on an Agency Partner Website that (a) employs aggressive, substandard or low-quality marketing strategies, including all marketing services unrelated to Yodify or the Agency Partner's offerings, (b) endorses or promotes violence, sexually explicit content, discrimination based on nationality, race, sex, religion, age, sexual orientation or age, (c) endorses or promotes any illegal or objectionable activity, or (d) infringes upon, or violates, the intellectual property or other proprietary rights of any third party; or (e) violates the Acceptable Use Policy.

4. Compliance with Laws

   Agency Partner shall ensure that, in addition to and not precluding the other provisions of this Agreement, it complies with all applicable laws, rules, and regulations and upholds the highest industry standards for the performance of its obligations under this Agreement. This includes acquiring any licenses necessary for Agency Partner to operate and provide the products or services associated with its participation in the Agency Partner Program. Agency Partner represents and warrants that (i) none of its directors, officers, employees, subsidiaries, related entities, nor the Partner itself, being at any time, engaged with Yodify, are Sanctioned Persons, or are owned or controlled by one or more Sanctioned Persons; and (ii) Agency Partner does not have a place of residence, establishment, or operation within an Unsupported Region. If the Agency Partner discovers or has reason to believe that the aforementioned representation and warranty may no longer be valid, it will immediately notify Yodify in writing. The Agency Partner agrees, without limitation, that in carrying out its responsibilities and utilizing the Services pursuant to this Agreement, it shall (i) refrain from participating directly or indirectly in any transactions or activities that benefit, relate to, or involve a Sanctioned Person or Unsupported Region, and (ii) notify Yodify in writing without delay in the event that it discovers or suspects any breach of the Sanctions or the related provisions of this Agreement. Without limiting Yodify's general termination rights, Agency Partner acknowledges that Yodify reserves the unilateral right to terminate this Agreement with Agency Partner with immediate effect via written notice in the event that Yodify, in its sole discretion, determines that Agency Partner (i) is or becomes a Sanctioned Person and/or (ii) is or becomes in breach of any of its representations, warranties, and/or covenants in this in this Section 2.4, for the avoidance of doubt and without limiting Yodify's general termination rights.

5. Agency Partner Duty to Inform

   Agency Partner will immediately notify Yodify of any information Agency Partner is aware of from or about any third party that could reasonably lead to a claim, demand, or liability of or against Yodify or the Yodify Related Entities.

6. Agency Partner Duty to Disclose

   If Agency Partner is acting as an agent on behalf of a Client, Agency Partner will inform the Client about any Fees that Agency Partner is eligible to receive from Yodify for services related to that Client, as outlined in this Agreement.

7. Agency Partner Age of Majority

   If Agency Partner is an individual, you are required to meet one of the following conditions: (i) you must be at least 18 years old, or (ii) you must be at least the age of majority in the jurisdiction where they reside and conduct Agency Partner activities.

8. Additional Agency Partner Terms

   1. You confirm that you are becoming an Agency Partner solely to engage in business-related activities and not for any personal, domestic, or familial purpose.
   2. You are required to create a Yodify account prior to accessing or using the Services.
   3. Agency Partner must create an Agency Partner Account by entering all the required information in order to qualify as an Agency Partner. In its sole discretion, Yodify may reject an application for an Agency Partner Account for any reason. An Agency Partner Account must contain a full legal name and a valid email address. Agency Partner acknowledges that the email address it provides will be the principal means of communication between Yodify and Agency Partner.
   4. Agency Partner is responsible for maintaining the security of its Agency Partner Account password. Yodify cannot and will not be liable for any loss or harm resulting from the Agency Partner's failure to keep the Agency Partner Account and password secure. Yodify may request additional security measures at any time and reserves the right to modify these requirements at its discretion.
   5. If you sign up for an Agency Partner Account on behalf of your employer, your employer will be deemed to be the Agency Partner for the purposes of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Agency Partner is responsible for ensuring that its employees, agents, and subcontractors comply with the terms of this Agreement. Additionally, any violation of this Agreement by the Agency Partner's employees, agents, or subcontractors is the Agency Partner's responsibility.
   6. Agency Partner acknowledges and agrees that Agency Partner shall remain responsible and liable for the performance of all its obligations as stipulated in the Agreement; this responsibility shall remain in full effect irrespective of whether Agency Partner subcontracts or sublicenses any of those obligations to any third party, including but not limited to any affiliates or subsidiaries of Agency Partner.
   7. Agency Partner acknowledges and agrees that Yodify may modify this Agreement at any time by displaying the applicable amended and restated Agency Partner Program Agreement at yodify.com/partners/terms on its website. Any such modifications shall take effect from the date of publication. Yodify shall furnish reasonable notice of any significant changes through email and/or posting a notice in the Agency Partner Portal. Agency Partner's continuing participation in the Yodify Agency Partner Program following the publication of the revised Agency Partner Program Agreement on Yodify's website signifies Agency Partner's acceptance and agreement with the amended Agreement. Agency Partner shall cease participation in the Yodify Agency Partner Program and terminate the Agreement in the event that it objects to and disagrees with any modifications to the Agreement.
   8. By participating in the Yodify Agency Partner Program, Agency Partner acknowledges and agrees to use the Services, Content, and Order Forms only in accordance with this Agreement, the Yodify Terms of Use, the Yodify Acceptable Use Policy, the Yodify Privacy Policy, the Yodify Artificial Intelligence Acceptable Use Policy, and applicable laws and government regulations that govern Agency Partner's activities, including the transmission of information to or by Yodify and all information stored by Yodify.
   9. The partner acknowledges and agrees that Agency Partner may only access Client Websites through the use of any of the permitted tools specified for the Agency Partner as stated on yodify.com. Asking a Client for their password or using a Client's credentials to gain entry to their Website, is strictly prohibited.
   10. The Agency Partner shall acknowledge and accept reasonable requests for information from Yodify and provide a prompt response. The Agency Partner shall execute and deliver documents and take such action as Yodify reasonably requests from time to time. Furthermore, without limiting the foregoing, should Yodify initiate communication with the Agency Partner regarding its Agency Partner Account and request a reply or acknowledgement of said communication, the Agency Partner shall provide Yodify with a prompt response.

   
   
   

Referral Plans, Fees and Payment

1. Payment

   Subject to Agency Partner's compliance with this Agreement and the Referral Plan associated with an Agency Partner's activities in accordance with the Agency Partner Program, the Agency Partner will be eligible to receive specific fees from Yodify (the "Fees”).
   

   
   

   1. Value-Added Referral Plan. Fees due to Agency Partner under the Value-Added Referral Plan will be calculated by Yodify once per month upon Yodify's receipt of full payment from the Client, for each month that the Referred Client Website is active, provided that Agency Partner has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period (as set out in Part B, Section 2.1).
   2. Affiliate Referral Plan. Fees due to Agency Partner under the Affiliate Referral Plan will be calculated by Yodify once per month upon Yodify's receipt of full payment of subscription revenue from the Client for two consecutive months.
   3. Data Services. Fees due to Agency Partner for Data Services will be calculated by Yodify once per month upon Yodify's receipt of full payment for Data Services performed to date by Yodify.
   4. Development Services. Fees due to Agency Partner for Development Services will be calculated by Yodify once per month upon Yodify's receipt of full payment for Development Services performed to date by Yodify.
   5. Payment of Subscription Fees. Yodify distributes Fees owing to Agency Partners and funds payable to Agency Partners from Clients twice every calendar month (each period being referred to as a "Payment Period"). The first Payment Period occurs in the first half of the month, while the second Payment Period occurs in the second half of the month. The Fees described in Section 3.2.1 will be paid during either the first or second Payment Period, depending on the date Yodify calculated the Fee. If Agency Partner's Fees are less than USD $25 at the end of any Payment Period, Yodify will be entitled to withhold payment until the end of the next Payment Period in which the balance of unpaid Fees from any previous Payment Period and current Fees are USD $25 or more.
   6. Payment of Data Services Fees and Development Services Fees . Yodify distributes Fees owing to Agency Partners and funds payable to Agency Partners from Clients twice every calendar month (each period being referred to as a "Payment Period") upon Clients and Agency Partners written approval and acceptance of work performed by Yodify. The first Payment Period occurs in the first half of the month, while the second Payment Period occurs in the second half of the month. The Fees described in Section 3.2.1 will be paid during the Payment Period, depending on the date Yodify calculated the Fee. If Agency Partner's Fees are less than USD $25 at the end of any Payment Period, Yodify will be entitled to withhold payment until the end of the next Payment Period in which the balance of unpaid Fees from any previous Payment Period and current Fees are USD $25 or more.
   7. Any Fees payable by one Party to another as a result of any activity under this Agreement shall be exclusive of Taxes. Such Taxes are in addition to any Fees. If you are exempt from paying such taxes, you are required to provide us with an original certificate that satisfies all relevant legal criteria and attests to your tax-exempt status. Tax exemption will solely be applicable following the date on which we receive said certificate. Agency Partners shall bear full liability for any Taxes that may be levied in relation to their dealings with a Client or activities transpiring under this Agreement. In the event that Yodify does not collect Taxes relating to Fees or on a transaction between an Agency Partner and a Client, the Agency Partner shall be responsible for determining whether Taxes are owed on the transaction and, if so, remitting the necessary payments to the relevant tax authorities.
   8. Fees assessed by Yodify will be reflected on an invoice issued by Yodify. Yodify shall produce an invoice on your behalf to Yodify for any Fees paid to you for your referral activities. Once a payout is processed, invoices are created. Invoices for transactions that are still pending cannot be viewed by you.

   
   
   

2. Additional Payment Information

   1. All transactions and payments are subject to fraud and risk assessment, as well as anti-money laundering protocols. Yodify reserves the right to withhold any payments while an investigation is ongoing. Yodify may also withhold payment in the event that Agency Partner neglects to furnish Yodify with the necessary information to process the payment.
   2. Notwithstanding anything to the contrary in this Agreement, Yodify will not be responsible for the payment of any Fees: (i) relating to funds that Yodify has refunded to Clients; (ii) for a Referred Client formed or owned entirely or partially by an Agency Partner; (iii) related to fraudulent sales; (iv) related to revenues that were subject to chargebacks; (v) to Agency Partners who are in some capacity of employment by Yodify (full-time, part-time, term, or any other employment-type nature); or (vi) to Agency Partners who hold employment, whether directly or indirectly, with the Client to whom the Fees relate (regardless of whether the relationship is of a full-time, part-time, term, or other employment-type nature).
   3. In the event that any Fees paid by Yodify are found to have been paid in error or are subject to one or more of the exclusions detailed in Section 3.3.2, Yodify reserves the right, in its sole discretion, to: (i) claim back any fees that were incorrectly paid to the Agency Partner; or (ii) set off the amounts specified in Section 3.3 from any payments owed to Agency Partner during future Payment Periods. If the Agreement is terminated prior to Agency Partner's full repayment of such amounts to Yodify, Agency Partner shall remit the remaining balance to Yodify within thirty (30) days of the Agreement's effective termination date.
   4. Yodify reserves the right, with reasonable prior notice to Agency Partner, to modify the Fees or payment terms at any time. Such notice will be sent by email or posted in the Agency Partner Portal. In the event of a Fees dispute, Yodify's decision will be final and binding.

   
   
   

Termination

1. Parties Rights to Terminate

   1. Any Party may terminate this Agreement at any time, with or without cause, and with immediate effect upon notice to the other Party, unless otherwise specified in the Agreement.
   2. If an Agency Partner engages in fraudulent activity or engages in other inappropriate behavior, including violating the Acceptable Use Policy, Yodify reserves the right to take one or more of the following actions: (i) termination of Agency Partner's association with Clients in the Agency Partner Account; (ii) temporary or permanent suspension of some or all Agency Partner privileges within the Agency Partner Program; and (iii) Agency Partner Account may be terminated without any prior notice to, or recourse for, Agency Partner.
   3. The Agency Partner Program Agreement in its entirety, inclusive of Fees, is subject to modification or cancellation by Yodify at any time. In the event that the Agency Partner Program Agreement undergoes a substantial modification, including a material change to Fees, Yodify shall furnish reasonable notice by email or post a notice in the Agency Partner Portal.

   
   
   

2. Consequences of Termination

   1. Upon termination of this Agreement: (a) each Party shall either return or destroy (and furnish certification that such destruction has occurred) all property owned or controlled by the other Party (including any Yodify Creative or Confidential Information as defined below); (b) Agency Partner will immediately stop displaying any Yodify Creative or Yodify Trademarks on any Website or otherwise; and (c) unless otherwise determined by Yodify in its sole discretion, all rights granted to Agency Partner under this Agreement will terminate immediately, including but not limited to the right to access the Agency Partner Account and Agency Partner Portal, the Yodify API, or to receive any payments of Fees under this Agreement.
   2. This Section 4.2.2 and the following Sections shall survive any termination or expiration of this Agreement:
      
      1. PART A: Section 1 (Definitions), Section 5.4 (Proprietary Rights of Yodify), Section 6 (Confidentiality), Section 7 (Disclaimer of Warranty), Section 8 (Limitation of Liability and Indemnification), and Section 9 (General Provisions); and
      2. PART B: Section 6 (Relationship between Value-Added Referral Partner and Client)

   
   

   Furthermore, any provisions of this Agreement that are by their nature intended to survive termination will do so.

Intellectual Property Rights

1. Yodify Creative

   1. All Yodify Creative shall be produced and supplied exclusively by Yodify, unless Yodify agrees otherwise in advance and in writing. Yodify shall grant Agency Partner access to or copies of Yodify Creative. The Yodify brand guidelines ("Yodify Trademark Usage Guidelines") and the Agency Partner Program website may also provide access to the Yodify Creative. You agree to abide by our Yodify Trademark Usage Guidelines by using the Yodify Creative, and you acknowledge that violation of any of these guidelines will result in a termination of your license or authorization to use the Yodify Creative. Yodify Creative is provided "as is" and with no warranty of any kind.
   2. During the term of this Agreement, Agency Partner may display Yodify Creative on the Agency Partner Websites for the exclusive purpose of marketing and promoting the Service and any Yodify brands authorized by Yodify and Yodify Related Entities, and Agency Partner may continue to do so until Yodify instructs Agency Partner in writing, with a reasonable prior notice, to stop displaying all Yodify Creative. The Yodify Creative may not be modified, amended, animated, distorted, translated, adapted, or combined with any other words, symbols, images, or design elements (including, without limitation, those of Agency Partner), by the Agency Partner without the prior written consent of Yodify. Nothing in any Yodify Creative will be considered under any circumstances a representation or warranty of Yodify or any Yodify Related Entity. The Yodify Creative will forever remain the sole and exclusive property of Yodify and no rights of ownership will be transferred to or vest with Agency Partner, even if Agency Partner has been authorized by Yodify to make adjustments, alterations, or modifications to the Yodify Creative.

   
   
   

2. Yodify Trademarks

   Yodify hereby grants Agency Partner, during the term of this Agreement, a non-transferable, limited, revocable, non-exclusive, and non-sublicensable license to display the Yodify Trademarks for the exclusive purpose of performing Agency Partner's obligations under this Agreement. Agency Partner acknowledges and agrees that: (a) it shall only use the Yodify Trademarks in compliance with the terms of this agreement; (b) it will use the Yodify Trademarks in legal manner and in strict compliance with all of the format(s), standards, guidelines, and other requirements that Yodify may prescribe in writing from time to time, including but not limited to the Yodify Trademark Usage Guidelines; (c) the Yodify Trademarks are and shall continue to be the exclusive property of Yodify; (d) nothing in this Agreement neither confers nor grants Agency Partner any ownership rights in the Yodify Trademarks, and any use thereof by Agency Partner will inure to the benefit of Yodify; (e) Agency Partner will not, now or in the future, apply for or dispute the validity of any Yodify Trademark; and (f) Agency Partner will not, now or in the future, apply for or use any term or mark that is confusingly similar to any Yodify Trademark.

3. Restrictions on Agency Partner's Use of Yodify Trademarks

   Notwithstanding Section 5.2, Agency Partner will not: (i) use the Yodify Trademarks or variations or misspellings thereof in Agency Partner’s branding, business name, logo, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services (including without limitation, in the name or design of any Application), unless granted express written permission by Yodify in advance of each use; (ii) register or purchase search engine or other pay-per-click keywords (such as Google Ads), trademarks, email addresses, or domain names that use the Yodify Trademarks or any variations or misspellings thereof that may be confusingly or deceptively similar to the Yodify Trademarks. Agency Partner is highly encouraged to add the Yodify Trademarks as negative keywords to help prevent violation of this Section.
   

4. Proprietary Rights of Yodify

   As between Agency Partner and Yodify, the Yodify Creative, Yodify Trademarks, all demographic and other information relating to Clients including Referred Clients, prospective Agency Partners and Agency Partners, the Services, the Yodify API, Client Data, and all software, hardware, tools, equipment, devices, documentation, documents, templates, websites, processes, methodologies, know-how, and any additional intellectual or other property used by or on behalf of Yodify or Yodify Related Entities or otherwise related to the Service, Yodify Agency Partner Program, Yodify or Yodify Related Entities, together with all copyrights, trademarks, trade names, service marks, patents, trade secrets, rights associated with works of authorship, industrial property rights, and any other proprietary rights inherent therein and accompanying thereto (collectively, “Yodify Property”) will be and shall remain the sole and exclusive property of Yodify. To the extent, if any, that ownership of any Yodify Property does not automatically vest in Yodify by means of this Agreement, or otherwise, and vests in Agency Partner, Agency Partner hereby transfers and assigns to Yodify, upon the creation thereof, all rights, title, and interest Agency Partner may have in and to such Yodify Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present, and future violations thereof.

5. Yodify's Use of Agency Partner's Intellectual Property

   Agency Partner grants to Yodify a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and license to use, publicly display, sublicense, and display in any manner the Agency 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. In addition, at Yodify's discretion, Yodify may use any such intellectual property for the purposes of promoting or marketing Agency Partner, Agency Partner's products and/or services, or as otherwise agreed to with Agency Partner.

6. Branding and Marketing

   When presenting Yodify content and/or promotional materials to existing or prospective end users, third parties, or partners, Agency Partner will not modify, obscure, or remove the Yodify branding, trademarks, copyright notices, or indications that the content is licensed from Yodify. You shall, if requested by Yodify, furnish Yodify with copies of the promotional materials Agency Partner created or modified, and Agency Partner shall implement any modifications put forth by Yodify. In the event the Parties are unable to agree on any such modifications, Agency Partner shall immediately cease using any and all of the associated promotional materials, subject to Agency Partners survival rights as set forth in this Agreement.

Confidentiality

Disclaimer of Warranty

Limitation of Liability and Indemnification

1. Limitation of Liability

   Yodify, together with the Yodify Related Entities, shall bear no liability in relation to the Yodify Agency Partner Program, the Service, the Yodify API, the Yodify Trademarks, the Yodify Creative, or any obligations pursuant to this Agreement or otherwise, for any form of damages, whether direct, indirect, incidental, special, consequential, or exemplary. This includes, but is not limited to, damages for loss of profits, goodwill, utility, data, or other intangible losses that may arise from the utilization of the Service, the Yodify API, the Yodify Trademarks, the Yodify Creative, or from the Agency Partner's participation, inability to participate, or failure to participate in the Yodify Agency Partner Program, notwithstanding any prior advisement to Yodify of the potential for such damages. Under any circumstance, the liability of Yodify and the Yodify Related Entities towards the Agency Partner pursuant to this Agreement, for any cause whatsoever, shall be confined to the sum of Fees remitted to the Agency Partner by Yodify within the six (6) month period directly preceding the occurrence that initiated the claim for damages. This restriction shall be applicable collectively to all causes of action, encompassing, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and other tortious conduct. The relationship between a Client and an Agency Partner is solely between those two Parties, and neither Yodify nor the Yodify Related Entities to Yodify bear any obligation to mediate any disputes that arise between the Client and the Agency Partner. At no event shall Yodify, nor any Yodify Related Entities, incur liability for any form of damages, whether direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or otherwise, arising from or in connection with the Agency Partner's interactions or engagements with any Client. Such limitations shall be enforced notwithstanding any advisement to Yodify or the Yodify Related Entities affiliated with Yodify of the potential occurrence of such damages. The aforementioned restrictions shall be applied to the maximum extent allowed by the prevailing applicable law.

2. Agency Partner Indemnification

   Agency Partner commits to indemnify, defend, and hold harmless Yodify, its Related Entities, and their respective directors, officers, employees, subcontractors, and agents (individually referred to as an "Indemnified Party" and collectively as the "Indemnified Parties"), from and against all claims, demands, legal actions, debts, liabilities, including reasonable attorneys' fees (collectively, “claims”), to the extent that such claims are predicated on or result from: (a) the Agency Partner’s violation of any representation, warranty, obligation, or covenant stipulated in this Agreement; (b) the Agency Partner’s gross negligence or intentional wrongdoing; (c) any warranty, condition, representation, indemnity, or guarantee provided by the Agency Partner to any Client, prospective Agency Partner, or other third party concerning Yodify and its Related Entities; (d) the Agency Partner’s use of the Yodify API; (e) the Agency Partner’s infringement of any condition of this Agreement (including documents incorporated herein by reference) or Client Agreement; (f) claims from third parties that the Agency Partner’s products or services violate the intellectual property or other rights of a third party; (g) taxes attributable to the Agency Partner, including any audits or penalties related thereto; (h) the execution, non-execution, or flawed execution of the Agency Partner’s products or services; (i) the Agency Partner’s dealings with any Client; and (j) any violation of applicable laws by the Agency Partner.

3. Notice of Indemnification

   In pursuit of any indemnity pursuant to this Agreement, the Indemnified Party shall expeditiously deliver to the Agency Partner a written notice of any claim that is deemed by the Indemnified Party to be within the ambit of the indemnification obligations stipulated in this Agreement. The Indemnified Party reserves the right to assist in the defense at its own cost, subject to the condition that the Agency Partner retains authority over such defense and all related settlement negotiations. Additionally, it is stipulated that the Agency Partner shall not, in resolving any claim, concede any liability on behalf of the Indemnified Party nor consent to any terms that could, either directly or implicitly, infer an admission by, or impose any obligation upon, the Indemnified Party without obtaining the Indemnified Party's prior written consent.

4. Non-Exclusive Remedies

   Should the Agency Partner commit or threaten to commit a breach of any provisions outlined in Sections 2, 3.2.5, 5, or 6 herein, Yodify shall, in addition to availing itself of all other rights and remedies conferred by this Agreement and under the law, possess the authority to (a) seek an immediate injunction against any such actions without the need to demonstrate harm or furnish a bond or other form of security, (b) forthwith terminate this Agreement and the Agency Partner's participation in and access to the Agency Partner Program, (c) demand the expedited return of all sums paid to the Agency Partner pursuant to this Agreement, and (d) secure indemnification for any losses, damages, or liabilities suffered by Yodify as a result of such breach, in line with the terms of this Section 8.

General Provisions

1. Force Majeure

   If the performance of any part of this Agreement by either Party is prevented, hindered, delayed, or otherwise made impracticable due to circumstances beyond either Parties reasonable control, including, for example, any fire, flood, earthquake, extreme weather event or acts of nature, acts of God, accident, riot, rebellion, labor conditions, disputes or stoppages, public health emergency, widespread illness, pandemic, epidemic, an act of sabotage, hostility, terrorism, or war (whether declared or not) or the serious threat of same, cyber related disruptions, cyber-attacks, ransomware sabotage, an electrical, internet, or telecommunication disturbance, delay or outage that is not caused by the obligated Party, delays or failures in delivery from carriers or suppliers, energy or fuel interruption, or any reason whether similar to the foregoing or otherwise, judicial or governmental action, restriction, order, injunction, embargo, or restraint (including, but not limited to, the denial or cancellation of any export, import, or other license, or any law or regulation 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), or any other event or cause outside the reasonable control of the obligated Party, that Party will be excused from such performance to the extent that it is prevented, hindered, or delayed by such cause. Party is not liable for delay or failure to perform any of its obligations by reason of any events or circumstances beyond its reasonable control. Party will use reasonable efforts to mitigate the effect of a force majeure event. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Party's obligation to pay for the Services, or other contracted services where applicable. The right to allocate capacity is in Yodify's sole discretion. An event of force majeure in the meaning of this Agreement means any circumstances beyond Parties control that permanently or temporarily hinder performance, even where that circumstance was already foreseen. An event of force majeure shall not include financial distress, insolvency, bankruptcy, or other similar conditions affecting one of the Parties, affiliates, and/or subcontractors. Party shall not be entitled to cancel any orders following its claim of an event of force majeure. Notwithstanding anything in this Agreement to the contrary, the affected Party prevented from performing under this Agreement by a force majeure event will nevertheless use its best efforts to restore and resume its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement. All delivery dates affected by an event of force majeure shall be tolled for the duration of such event of force majeure and rescheduled for mutually agreed dates as soon as practicable after the event of force majeure ceases to exist.
   

2. Independant Contractors

   The Parties bound by this Agreement shall operate solely as independent contractors. Save for the activities concerning the collection, transfer, and remittance of payments, credits, or refunds between Clients and the Agency Partner, or as specifically provided for in this Agreement, neither Yodify nor any Yodify Related Entity shall be deemed an agent, delegate, representative, associate, or related entity of the Agency Partner, nor does this Agreement create a consortium, association, partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will be solely responsible for the payment of all compensation owed to its employees, as well as all employment-related taxes, and except as otherwise expressly set forth herein, each Party will bear its own costs and expenses of its performance under this Agreement. Neither Yodify nor the Agency Partner shall possess any right, capability, or authority to forge agreements for, act on behalf of, assume any obligations or liabilities for, assign or impose any liability on, or in any way obligate, the other Party, except in instances where the Agency Partner has explicitly granted Yodify the authorization to represent it as per the terms of this Agreement. To eliminate any ambiguity, it is hereby explicitly authorized by the Agency Partner that Yodify is empowered to act in its stead for the express purpose of facilitating the collection and disbursement of payments, credits, or refunds between the Client and the Agency Partner.

3. Non-Exclusivity

   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.

4. Notice

   Unless stated otherwise in this Agreement, all notices pertaining to this Agreement, including any approval, request, authorization, direction, or other communication, must be in writing and will become effective upon (a) the delivery day when delivered in person, (b) two business days after mailing, (c) on the day of dispatch via email, or (d) two business days following submission to a globally reputable commercial express delivery service, accompanied by written confirmation of receipt. Notice will be sent to the Agency Partner at the address provided in the Agency Partner Account, and to Yodify at 3372-114 Avenue S.E., Calgary, Alberta, Canada, T2Z 3V6 Attention: Legal Department.

5. No Waiver

   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.

6. Entire Agreement

   This Agreement encompasses the complete terms, inclusive of any application forms, guidelines, and documents referenced or linked herein, and nullifies all previous agreements, whether written or oral, between the Parties concerning its subject matter. This includes any earlier versions of this Agreement. Both Yodify and the Agency Partner explicitly reject any terms, conditions, or provisions proposed by the other Party that deviate from or add to this Agreement's terms, regardless of their potential to materially change the Agreement, unless such terms are expressly accepted in writing by the Party to be bound by them. This Agreement may be provided in languages apart from English. In cases where discrepancies or contradictions arise between the English version of this Agreement and versions in other languages, the latest English version shall take precedence and govern.

7. Assignment

   We may assign this Agreement, in whole or in part, at any time without notice to you. Agency Partner may not assign this Agreement or transfer any rights to use the Services to any third party without Yodify’s prior written consent, to be given or withheld in Yodify’s sole discretion. Transfer can include acquisition, merger, change of control, or other forms of transfer. To request Yodify’s consent to assignment or transfer, contact Yodify Agency Partner Support in the Agency Partner Portal. All the terms and provisions of this Agreement will bind and inure to the benefit of the Parties, their respective successors, permitted assigns, and legal representatives.

8. Applicable Laws

   This Agreement will be governed by and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.
   
   The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Alberta with respect to any dispute or claim arising out of or in connection with this Agreement.

9. Patents Non-Assertion

   Agency Partner and its affiliates covenant not to assert patent infringement claims against Yodify, Yodify Related Entities, or Yodify products and services including the Yodify API.

10. Competitive or Similar Materials

    Yodify retains the right to engage in dialogue, evaluation, self-development, commissioning of development, procurement, licensing, or development on behalf of or by third parties, in addition to the marketing and distribution of materials, products, or services that compete with those of the Agency Partner, including but not limited to any Application or Theme. This entitlement is irrespective of any resemblance to the Agency Partner's offerings, on the condition that Yodify refrains from employing the Agency Partner's Confidential Information in these endeavors.

11. Feedback

    If Agency Partner provides Yodify with any feedback (including identifying potential errors and improvements), suggestions, request for changes, comments (whether existing, suggested, or contemplated) or other feedback that is or may be subject to any Intellectual Property rights (“Feedback”) relating to any aspects of the Agency Partner Program, the Yodify API, the Yodify Creative, or any aspect of the Service, Agency Partner hereby irrevocably assigns to Yodify, all worldwide right, title, and interest in and to the Feedback, and Yodify is free to use, reproduce, disclose, and otherwise exploit, for commercial purposes or otherwise, the Feedback without attribution, payment, or restriction, including to improve the Agency Partner Program, Yodify API, the Yodify Creative, or any aspects of the Service and to create other products and services. By providing such Feedback to us, Agency Partner gives to us, without charge, and Agency Partner acknowledges and agrees that it may be used by Yodify to share and/or commercialize it in any way and for any purpose, including to: (i) further develop, evaluate, customize, improve, or market the Agency Partner Program, Yodify API, the Yodify Creative, or the Service and to create other products and services, (ii) provide ongoing assistance and technical support, (iii) contact you with general or personalized Yodify-related notices and/or interview requests based on your feedback or otherwise, (iv) facilitate, sponsor and offer certain promotions, and monitor performance; (v) to create aggregated statistical data and other aggregated and/or inferred information that Yodify may use to provide and improve its services; (vi) to enhance Yodify's data security and fraud prevention capabilities; and (vii) to comply with any applicable laws and regulations. In addition, you (1) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (2) represent and warrant Yodify is free to use, copy, disclose, reproduce, license, distribute, and otherwise exploit the Feedback without attribution, payment, or restriction, in any manner, including to improve the Agency Partner Program, Yodify API, the Yodify Creative, or the Service and to create other products and services; and (3) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide in or to such Feedback, in any manner without obligation, royalty or restriction based on intellectual property rights or otherwise. Yodify will treat any Feedback as non-confidential and non-proprietary. Agency Partner will not submit any Feedback that it considers confidential or proprietary.

12. Beta Services

    Yodify may, from time to time, in its sole discretion, invite Agency Partner to try, at its option and discretion, at no additional charge on a trial basis, possible new functionality, tools, resources, and related information that may contain ideas about new tools and functionality designated "beta" ("Beta Services") that are not yet available to all our Agency Partners or Clients. Any version of the Yodify Service designated as beta may not function in the same way as a final version. You understand that any pre-release and Beta Services, and any pre-release and beta features within generally available Services that we make available, are still under development, may be inoperable or incomplete, and are likely to contain more errors and bugs than the generally available Services. Yodify may suspend, limit, or terminate access to a Beta Service at any time. You agree that Beta Services are the confidential information of Yodify, and Agency Partner is not to disclose any information about any Beta Service to any third party or use the Beta Service other than for your internal testing and evaluation purposes and otherwise in accordance with this Agreement. You agree that Yodify is under no obligation to make any portion of any Beta Service generally available in a new release of the Services. We may alter or not release a commercial or final version of a Beta Service in our sole discretion. The Beta Service, along with any related discussions and documents, shall be deemed as Confidential Information belonging to Yodify and shall be governed by the confidentiality standards outlined in this Agreement. All information regarding the characteristics, features, or performance of any Beta Service constitutes our Confidential Information. You agree that Yodify makes no representations, warranties, guarantees, or conditions with respect to your use of, the performance, availability, functionality of, or general release of any Beta Services. Yodify is not liable for damages that may result from or be connected with a Beta Service, including any interruptions or errors in functioning.

13. Service Providers

    Agency Partner may work with service providers as needed to facilitate Agency Partner's performance under this Agreement. Agency Partner acknowledges and agrees that it is responsible for all of its service providers' acts or omissions in connection with Agency Partner's performance of the Agreement, and any act or omission by Agency Partner's service provider that constitutes a breach of this Agreement will be deemed a breach by Agency Partner.

14. Industry Standards

    1. Agency Partner will implement and maintain appropriate industry standard human, organizational, technological security, and Internet controls to preserve the confidentiality, availability and integrity of its information systems, networks, operating system, software of its web servers, routers, databases, and computer systems (collectively, “Partner System”) and the information held therein so as to securely operate Agency Partner’s Website, and Applications, and its information and computer systems, as applicable.
    2. In the event that Agency Partner relies on a third party to provide any aspect of the Agency Partner System, Agency Partner will use the maximum influence that Agency Partner has over the Agency Partner System to do so. Notwithstanding the foregoing, Agency Partner is solely responsible for all aspects of the Agency Partner System. Agency Partner is responsible for any security deficiencies and intrusions into the Agency Partner System. Agency Partner will maintain industry-standard controls to block intruders, and in the event the Agency Partner System is accessed by an intruder, Agency Partner will use all means necessary to immobilize and remove intruder.
    3. Furthermore, in the event that Agency Partner has access to Client Data, Agency Partner shall: (i) only use or retain said information solely for the purpose of delivering the Agency Partner's services to the Client to whom the Client Data pertains; and (ii) will refrain from sharing, selling, disclosing, or otherwise offering said information to any third party, unless explicitly permitted to do so in this Agreement; (iii) shall not share, sell, disclose, or otherwise provide such information to any third party, except as provided for in this Agreement; (iv) will only store and/or use such information solely for the purpose of delivering the Agency Partner's services to the Client associated with the Client Data; (v) refrain from engaging in direct or indirect communication with Customers. Nevertheless, Agency Partner retains the right to contact Customers if it obtains the information from a third party, including the Customers themselves; (vi) retain such information solely for the duration that is reasonably required to deliver the Agency Partner's services to the Client to whom the Client Data pertains; (vii) implement industry-standard safeguards to prevent unauthorized access, disclosure, or use of said information; (v) ensure that Agency Partner's services are provided in accordance with all relevant laws and regulations pertaining to the protection and privacy of personally identifiable information; and (vii) immediately notify Yodify of any known or suspected breach or compromise of Client Data (a "Data Breach") by submitting a report to Yodify Agency Partner Support via email at https://help.yodify.com/questions/partners. Notification of the breach must occur within twenty-four (24) hours of the partner becoming aware of the occurrence.
    4. Upon becoming aware of the data breach, Agency Partner will, at its own expense, promptly rectify the data breach in order to avert any additional loss of Client Data, and immediately investigate and determine the cause of the data breach, and immediately thereafter remedy with all reasonable measures the possibility of any further breach and mitigate any potential future harm to Yodify, the Yodify Related Entities, Clients, and/or Customers. Furthermore, Agency Partner shall ensure consistent communication with Yodify regarding the advancement of its investigation and collaborate with Yodify to promptly furnish any further information that Yodify may request.

    
    
    

15. Severability

    If any provision, or portion of a given 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 the validity or enforceability of any other provision (or the unaffected portion of the provision), and the Agreement will be given effect as if such invalid, illegal, or unenforceable provision, or portion of the provision, had never been contained within this Agreement, and to this end, the provisions of this Agreement are severable. No waiver of any breach or default of any of this Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default.

16. Description of Yodify Entities

    Yodify, Inc. is a corporation formed under the laws of Canada, with offices located at 3372-114 Avenue S.E., Calgary, Alberta, Canada, T2Z 3V6.

Part B - Terms Applicable to Referral Partners

1. FTC Guidelines

   The Federal Trade Commission in the United States (“FTC”) has guidelines to ensure endorsements and testimonials reflect the basic truth-in-advertising principle that they must be honest and not misleading. The purpose of these regulations is to promote greater transparency between consumers and endorsers. As a participant in the Yodify Agency Partner Program, Agency Partner receives compensation from Yodify for referring Referred Clients to Yodify, and the FTC's Endorsement Guides state that if there is a connection between the endorser and the marketer of a product which would affect how people evaluate the endorsement, the connection should be disclosed, as it will establish a "material connection". Yodify therefore requires Agency Partner to comply with the FTC Endorsement Guides by clearly and conspicuously disclosing to consumers Agency Partner is compensated by Yodify for referring Referred Client. Agency Partner acknowledges and agrees to not engage in misleading or deceptive advertising. For more information, visit the FTC website.

2. Revenue Sharing Plans for Referral Partners

   1. The "Value-Added Referral Plan" is a revenue-sharing plan available to Agency Partners who introduce a Referred Client to Yodify via a Development Website linked to the Referral Partner's Agency Partner Portal. Within the framework of the Value-Added Referral Plan, an Agency Partner is allocated a percentage of specific revenues received from the Referred Client, the percentage of which is solely decided by Yodify, with the remaining percentage accruing to Yodify. To maintain eligibility for revenue sharing from Clients referred through the Value-Added Referral Plan, the Agency Partner is required to conduct a minimum of one Revenue Generating Activity in each consecutive 12-month period. Information regarding the current revenue share percentages for Agency Partners, the amounts that qualify for inclusion in the Agency Partner's revenue share, and details about the existing Revenue Generating Activities can be found at yodify.com/partners/overview. Yodify reserves the right to alter the revenue share terms of the Value-Added Referral Plan, along with any ongoing requirements of Agency Partner for receiving revenue share (including necessary Revenue Generating Activities), periodically at its exclusive discretion, with reasonable advance notice provided to the Agency Partner. Notice will be delivered through email and/or by publishing an announcement within the Agency Partner Portal.
   2. The "Affiliate Referral Plan" is a reward plan offering Agency Partners a one-time, set payment ("Bonus") for successfully referring a Referred Client to Yodify via the Agency Partner Affiliate Link. The Affiliate Referral Plan does not apply to the Yodify Enterprise plan. Except as expressly authorized by Yodify in writing, within the Affiliate Referral Plan, when an Agency Partner refers a Referred Client to any Yodify plan (excluding Yodify Enterprise), the Agency Partner is entitled to a one-time set payment Bonus equivalent to three hundred percent (300%) of the subscription revenue from such Referred Client for one month. Any Bonus payable to an Agency Partner will be disbursed in three installments. The initial third of the Bonus will be disbursed within 30 days following the Referred Client's payment of their first monthly subscription fee to Yodify. The next third of the Bonus will be paid out within 30 days after the calendar month in which the initial third of the Bonus was paid. The final third of the Bonus will be paid out within 30 days after the calendar month in which the second third of the Bonus was paid. The Affiliate Referral Plan may also be applicable in situations where a Referred Client is referred to Yodify by multiple Referral Partners. Yodify reserves the right to modify the revenue share amounts associated with the Affiliate Referral Plan from time to time, at its sole discretion, by providing reasonable advance notice to the Agency Partner. Notice will be delivered through email and/or by publishing an announcement within the Agency Partner Portal.
   3. For each Referred Client, the Agency Partner is eligible to earn Fees under either the Value-Added Referral Plan or the Affiliate Referral Plan, but not from both. When an Agency Partner refers a Referred Client to Yodify via a Development Website linked to the Referral Partner's Dashboard, the Agency Partner shall be eligible to earn Fees as outlined in the Value-Added Referral Plan. When an Agency Partner refers a Referred Client to Yodify using the Referral Partner’s Affiliate Link, the Agency Partner shall be eligible to earn Fees as outlined in the Affiliate Referral Plan. The determination of whether the Agency Partner earns Fees for a Referred Client under the Value-Added Referral Plan or the Affiliate Referral Plan rests solely and completely with Yodify's discretion. For more information about the the Value-Added Referral Plan and Affiliate Referral Plan visit yodify.com/partners/overview.
   4. Yodify reserves the right to (i) request and receive information from Referral Partners concerning any Referred Client, which includes, but is not limited to, details regarding the sources of traffic and the methods employed to secure the Referred Client, and (ii) evaluate the authenticity and eligibility of a Referred Client to ascertain if a Fee is due for such Referred Client. Yodify is under no obligation to disburse any Fees for a Referred Client that is wholly or partially owned by a Referral Partner or the Referral Partner’s employer, irrespective of the nature of employment, be it full-time, part-time, temporary, or any other form of employment relationship.

   
   
   

3. Responsibilities

   Referral Partners shall use their best efforts to (i) promote, advocate for, and market Yodify, and (ii) find potential Referred Clients for Yodify.

4. Unauthorized and Prohibited Activities

   An Agency Partner shall not:
   

   1. advertise or promote Yodify or Yodify Related Entities on websites offering coupons, deals, or discounts, on GTP/Get Paid to Click websites, or other sites that provide incentives, as well as from showcasing any offer codes on pages accessible to the public or employing a "click to reveal" mechanism for offer codes;
   2. directly employ their Affiliate Link within any pay-per-click advertising campaigns;
   3. acquire search engine or other pay-per-click keywords, trademarks, or domain names that incorporate the Yodify Trademarks, or the names or trademarks of Yodify Related Entities, or any iterations or typographical errors thereof, which could misleadingly or confusingly resemble the Yodify Trademarks, or the names or trademarks of any Yodify Related Entity;
   4. establish or engage in any third-party networks or sub-affiliate networks without obtaining explicit written consent from Yodify;
   5. utilize or promote any methods for generating fraudulent traffic, this includes, but is not limited to, the use of bots, toolbar traffic, cookie stuffing, or deploying false or deceptive links;
   6. directly link to any page on a Yodify website without securing prior written approval from Yodify; or
   7. conceal the identity of their referral sites or employ misleading redirection links.

   
   

   A Referred Client cannot be a website that is created, operated or owned by an Agency Partner who then seeks remuneration under the terms of this Agreement. An Agency Partner will be deemed to have referred only those Referred Clients who: (a) access Yodify through the Affiliate Link allocated to that Agency Partner by Yodify; (b) are registered via a Development Website contained within the Agency Partner's Yodify Agency Partner Portal.
   

   
   

   Applications and Themes cannot be transferred, assigned, or sublicensed. VAPs are prohibited from copying, duplicating, transferring, or selling an Application or Theme from one Client’s website to another Client’s website, whether within Yodify or on any external platform.
   
   

5. Development Websites

   While the VAP is developing a Client Website on behalf of a Client, the website may be designated as a Development Website by the VAP. A Development Website is not publicly visible and does not incur a subscription fee. The Agency Partner or Client may not use a Development Website to process orders; however, a Development Website may be used to test orders using test payment credentials only, for example, test credit cards.
   
   A Development Website is deemed to become a Client Website upon receipt by Yodify of the monthly subscription fees for the website from either the VAP or Client, at which time the VAP and/or the Client’s use of the Client Website will be subject to the Yodify Terms of Use. Once the subscription fees have been paid, the Client Website may be made publicly available by the VAP and/or the Client determination, enabling the Client Website to process orders.

6. Relationship Between Value-Added Referral Partner and Client

   All services provided by a VAP to a Client are the responsibility of the VAP and not Yodify. The VAP is solely responsible for ensuring there exists a Client Agreement between the VAP and the Client relating to all the services the VAP is to offer the Client. This agreement must contain suitable measures and remedies for instances of non-payment by the Client for services supplied by the VAP. However, any remedy involving the withholding of ownership transfer of the Development Website or Client Website to the Client will be dictated and executed by Yodify at Yodify's exclusive discretion. Should a conflict arise between the VAP and the Client, Yodify has no duty to mediate or involve itself in the dispute. Yodify shall not be held responsible for any form of damages, be they direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or of any other nature, that arise from or are connected to the ownership transfer of the Development Website or Client Website to the Client by Yodify, or the VAP's dealings with any Client, under any circumstances. These limitations will be enforced regardless of whether Yodify has been notified about the potential for such damages. The aforementioned restrictions shall be applied to the maximum extent allowed by applicable law.