These Hibob Non-Commissionable Partner Terms (“Terms”) are made and entered into on the date on which you signed and confirmed your acceptance (“Effective Date”), by and between Hi Bob Ltd., (collectively with its Affiliates, the “Company“) and the party submitting the Partner Application Form (the “Partner”). Each of the Company and the Partner shall be referred herein as a “Party”, and together the “Parties”.
WHEREAS, the Company is the developer and provider of certain proprietary cloud-based Software as a Service (SaaS) platform that enables companies to manage their human resources and employee benefits (“Company Platform”);
WHEREAS, the Parties wish to engage in a business collaboration between them, with respect to (i) referral of Leads (as defined below); and (ii) joint marketing activities; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1. “Affiliate” shall mean, with respect to either Party, any legal entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means (a) ownership of more than 50% of the equity of such party or entity or (b) the power to direct or cause the direction of the management and policies of such party or entity.
1.2. “Data Protection and Privacy Laws” shall mean all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada, Israel, Australia and the United States of America, as applicable to the Processing of Personal Data under these Terms including (without limitation) the GDPR and the UK GDPR.
1.3. “Company Trademarks” shall mean all trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Company Platform and the Company (and its Affiliates) generally.
1.4. “Lead” shall mean a prospective customer who is being referred by the Partner to the Company
1.5. “Platform” shall mean the Company’s Partner relationship management platform, which may be subject to change at Company’s sole discretion.
1.6. “Partner’s Trademarks” shall mean all tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Partner’s activities and the Partner generally.
2.1. Lead Referral.
2.1.1. The Partner may, on a non-exclusive basis and under the terms and conditions of these Terms, make commercially reasonable efforts to promote the Company Platform. The Partner may bring Leads, after having conducted an initial discovery meeting with such Lead (when applicable), to the Company by submitting a “Lead Submission Form”, available to the Partner on the Platform. At the Company’s request and to the extent known, the Partner may (i) supply any additional information reasonably requested by the Company, and (ii) assist the Company in contacting the proposed Lead by arranging an introduction, meeting, conference call or other means of communication with the Lead.
2.1.2. The Partner has no authority to bind the Company to any undertaking or performance with regards to the Company Platform or otherwise. Any engagement, promise, and/or commitment entered by the Company with Leads, if at all, shall be made at the Company’s absolute and sole discretion. Failure to enter into an agreement and/or transaction with a Lead shall not constitute any cause for liability claims against the Company.
3.1.1. Partner shall comply, at its own expense, with the applicable laws in connection with the performance of its undertakings hereunder, including without limitation, applicable data protection and security regulations. Partner agrees to conduct its business in a manner that favorably reflects upon the Company Platform and the Company.
3.1.2. Partner shall not and have no authority to: (i) reverse engineer, disassemble, decompile, modify, translate, or alter the Company Platform or the Company’s Confidential Information (as defined below), or any part thereof, or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Company Platform or the Company’s Confidential Information or any portion thereof by any means whatsoever; (ii) use the Company Platform or the Company’s Confidential Information for any purpose other than the purposes stated in these Terms; (iii) copy the Company Platform or the Company’s Confidential Information, develop any derivative works, improvements or modifications thereof or include any portion of the Company Platform or the Company’s Confidential Information in other products; or (iv) make any representations concerning Company or the Company Platform that exceed or are inconsistent with the marketing materials provided to Partner by Company or that are otherwise misleading and/or inaccurate; or (v) make any publication with respect to Company, the Company Platform, or any public use of the Company Trademarks (as this term is defined above) without Company’s prior written approval.
3.1.3. In the event Partner obtains knowledge that a third party is attempting or may attempt to take any of the foregoing actions prohibited by this section, Partner shall so notify Company in writing immediately and shall cooperate and provide full information and assistance to Company and its counsel in connection with any such action, proceeding or other measures.
3.1.4. Partner represents and warrants to the Company that Partner does not have any pre-existing obligations that are inconsistent with these Terms or that may prevent or impair the Partner’s ability to perform any of the services hereunder. During the applicability of these Terms, Partner shall not render services to any other person or entity which may conflict with the Partner’s obligations under the Terms.
3.1.5. Company Documentation and Information. The Company shall, at its discretion, provide Partner, through the Platform, with advertising materials, technical data, samples, documentation, or any other information that Company deems necessary to enable Partner to perform in accordance with the Terms. The Company and its Affiliates own and shall retain all rights and title, including intellectual property rights, in and to Company Platform and the Company Trademarks, and in and to any such advertising materials, technical data, samples, documentation, or any other information made available to Partner as part of the Terms or developed in connection therewith; and in and to Company’s Confidential Information. All goodwill and rights inuring from Partner activities under these Terms, including but not limited to from the use of the Company Trademarks, trade names, logos or domain of or related to Company and/or the Company Platform, shall vest and belong solely to the Company.
4.1. Title; Ownership. Company owns and shall retain all rights, including intellectual property rights in and to Company Platform, the Company Trademarks and the Company’s Confidential Information, including any derivatives, updates, enhancements, modifications or improvements made thereto.
4.2. Confidentiality. Partner will hold in strict confidence the contents all information relating to the Company Platform or that is of a confidential or proprietary nature (“Confidential Information”). Confidential Information shall be maintained in confidence and shall be protected and treated with the same degree of care as Partner uses to protect its own confidential information of like importance, but no less than reasonable degree of care. Confidential Information may not be disclosed except to Partner’s personnel and agents who have a need to know, and only to the extent required for the purpose of these Terms, provided such Partner personnel and agents have executed a confidentiality agreement with Partner at least as restrictive as presented in these Terms. Partner shall remain liable at all times for any acts and/or omissions of its personnel and agents. The provisions of this Section shall survive termination of the Terms for any reason and shall remain in force indefinitely.
5.1. Without derogating from the specific provisions set forth below, each party shall comply with all applicable data protection and privacy laws and regulation in the performance of these Terms relating to the collection, use or disclosure of any information that, alone or in combination could be used to readily identify a natural person (“Personal Data”).
5.2. Sharing of Personal Data by the Partner with the Company. The Partner represents and warrants that at all times; (i) it has established the necessary lawful basis to collect, process and transfer the Personal Data to Company for the purposes in these Terms and that all Personal Data shared with Company is accurate and up-to-date, all in accordance with applicable Data Protection and Privacy Laws; (ii) it has provided the data subjects related to the Personal Data with notices and information so as to enable fair, transparent and lawful processing of the Personal Data (including sharing it with Company and transfers to third-countries); (iii) the Personal Data may be processed by Company for the purpose of the Terms; (iv) the Personal Data is transferred to Company in a secure manner using appropriate technical and organizational security measures that comply with the obligations of applicable Data Protection and Privacy Laws; (v) it shall immediately notify the Company if it becomes aware of any change or circumstance which will, may or is alleged to impact the lawfulness of any processing of the Personal Data by the Company; (vi) it shall keep copies of all notices, consents or other records and information necessary to demonstrate its compliance with this section and shall promptly, upon the Company’s request, provide the Company with copies of such notices, consents and other records and information; (vii) it will co-operate with and provide reasonable assistance, information and records to the Company to assist with its respective compliance with Data Protection and Privacy Laws in relation to its processing of the Personal Data (viii) it shall indemnify the Company from and against all claims and proceedings and all liability, loss, costs, fines, and expenses (including reasonable legal fees) arising in connection with Partner’s failure to comply with its obligations under this section.
5.3. Cross-Border Transfers of Personal Data. If a Partner’s sharing of Leads with the Company under this Agreement involves a transfer of Personal Data from an EEA member country, Switzerland, or the United Kingdom (“UK”), to countries that do not offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the EU, the EU Member States, the European Commission, Switzerland, and/or the UK, as applicable, and such transfer is not performed through an alternative recognized compliance mechanism for the lawful transfer of Personal Data (as defined in applicable Data Protection and Privacy Laws), the Parties agree that prior to any such transfer they shall enter into (i) the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (“EU SCCs“); and/or (ii) the EU SCCs as amended for their lawful use under the Swiss Federal Act on Data Protection of 19 June 1992; and/or (iii) the International Data Transfer Agreement issued by the UK’s Information Commissioner under Section 119A(1) of the Data Protection Act 2018, and in force as of 21 March 2022 (each as applicable).
6.1. In addition to the other representations and warranties set forth herein, each Party represents and warrants to the other Party as follows:
6.1.1. It has full authority to sign these Terms;
6.1.2. It will comply with all Federal, State and local laws and regulations in performing its duties and obligations under these Terms;
6.1.3. All necessary consent to sign these Terms has been obtained; and
6.1.4. Signing these Terms does not violate any law, rule, or regulation.
6.2. Exclusive Warranty. THE WARRANTIES CONTAINED IN THIS SECTION 7 ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING BY A COURSE OF DEALING OR USAGE OF TRADE.
6.3. PARTNER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S) HEREIN AND THE COMPANY PLATFORM AND ANY COMPANY CONTENT, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. IN PARTICULAR, THE COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE COMPANY PLATFORM WILL BE UNINTERRUPTED, CONTAMINANT-FREE OR ERROR-FREE, THAT SYSTEM AVAILABILITY BE MAINTAINED, THAT ANY ERROR, BUG OR PROBLEM BE RESOLVED OR THAT THEY WILL MEET THE PARTNER’S REQUIREMENTS.
7.1. This Agreement shall commence as of the date on which Partner has signed these Terms.
7.2. Termination for Cause. Company may terminate the contractual relationship and these Terms immediately in case of any breach of the Terms by the Partner which is not or cannot be cured within five (5) days of notice of such breach.
7.3. Termination for Convenience. Company may terminate the contractual relationship and these Terms for convenience and with no reason being required, by providing prior written notice of no less than ten (10) days to the Partner.
Partner may terminate the contractual relationship and these Terms for convenience and with no reason being required by unsubscribing to the Platform.
7.4. Effects of Termination. Upon termination or expiration of the contractual relationship and these Terms as aforementioned, all rights and licenses (if any) granted to Partner in accordance with the Terms shall forthwith terminate and expire and Partner shall immediately return all documentation and other materials supplied to it by the Company hereunder as well as any materials containing Confidential Information of the Company.
8.1. Partner shall indemnify, defend and hold the Company and its Affiliates harmless from and against any claims, damages (including reasonable attorney’s fees and costs related to litigation), fines, fees, or penalties arising out of (a) any act or omission by Partner which violates any laws, rules and regulations or rights of any third party (including but not limited to those Data Protection and Privacy Laws); (b) Partner’s actions in promoting or marketing the Company Platform; or (c) Partner’s actions in violation of Section 3 above. Company will indemnify, defend, and hold Partner harmless from and against any third-party claims, damages (including reasonable attorney’s fees and costs related to litigation) fines, fees or penalties arising out of any act or omission by Company which violates any laws, rules and regulations.
8.2. Each Party shall promptly notify the other of any claim or threat of claim of which such Party becomes aware and that may give rise to a demand for indemnification under this section. The Parties waive any right to trial by jury in any action arising out of, in connection with, or in any way related to these Terms.
9.1. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO THE PARTNER WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY’S TOTAL LIABILITY HEREUNDER SHALL NOT EXCEED $25,000.
10.1. Entire Terms. These Terms, including all exhibits, constitute the entire agreement between Partner and Company with respect to the subject matter of these Terms and supersede and replace any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of these Terms, including previous non-disclosure and referral agreements between the Parties.
10.2. Relationship of Parties. The Parties are engaging in these Terms on a non-exclusive basis. These Terms do not create and shall not be construed as creating an employer-employee relationship between the Company and the Partner, nor any agency, joint venture or partnership (notwithstanding the use of the terminology of “Partner”). Partner shall have no authority to act for the Company or to represent that the Company is in any way responsible for the acts or omissions of Partner. Except as otherwise provided, each Party shall bear its own administrative costs and overhead expenses arising out of its performance of these Terms.
10.3. Expenses. Partner shall be solely responsible to pay any and all expenses incurred by it for the performance of its activities and obligations and shall not be entitled to any payment or compensation whatsoever unless approved in advance by the Company in writing. Any and all taxes, or fees payable by either Party in connection with its responsibilities under this Agreement shall be borne and payable by the Party which directly incurred them.
10.4. Non-Solicitation. Partner agrees that while the Terms have not been terminated by either Party hereof neither it nor any of its Affiliates, will directly or indirectly by itself or permit or assist any third party to, as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, to call on, solicit, take away, or attempt to call on or solicit, or take away any of the employees, agents or contractors of Company whether referred by the Partner or not. During such time, Partner shall also not (a) entice, induce or in any manner influence any person or entity who is, or shall be in the direct or indirect service of Company to leave the same for the purpose of engaging in a business or being employed by or associated with any other business; or (b) engage or participate in any business that is in competition in any manner whatsoever with the business or contractual relationships of Company. The above shall not apply to a valid response to a public notice of employment.
10.5. Assignment. Each Party shall not assign any of its obligations and/or rights under and according to these Terms without the other Party’s prior written consent. Each of the Parties may, without the need for such consent, assign these Terms to a respective affiliate or any successor upon the sale of all or substantially all of such Party’s share or (“Permitted Assignment”). Upon such Permitted Assignment, the rights and obligations under the Terms will be binding upon and inure to the benefit of said affiliate, purchaser or successor in interest, provided that in case of a Permitted Assignment in connection with a sale of assets, such purchaser shall agree in writing to be bound by all the provisions of these Terms.
10.6. Change of Terms. Company reserves the right to modify or otherwise update the Terms at any time. Partner’s continued use of the Platform after any change to these Terms becomes effective shall be deemed acceptance of such changes.
10.7. Governing Law. The interpretation, construction and the remedies for enforcement or breach of the Terms shall be according to the laws of England and Wales and the competent courts in London, England shall have sole and exclusive jurisdiction over any conflict and/or dispute arising out of, or in connection to, the Terms.
10.8. Notices. All notices and other communications from one Party to the other shall be delivered or sent via the Platform.