iContact Partner Program

SECTION 1: Definitions & Interpretation

1.1 Definitions: The terms defined in this “Partner Agreement” are incorporated herein. In addition, the terms below have the following meanings:

a) “Affiliates”: any and all parents, subsidiaries, predecessors, successors, and other related entities of a corporate entity.

b) “iContact Marketing Materials”: any and all advertising and marketing materials, service descriptions, technical specifications, online help files, and user manuals that are produced by iContact for the iContact Marketing Solution.

c) “Customer”: means any active Managed Customer or Partner-Referred Customer. Partner agrees and acknowledges that the term Customer does not include customers removed from Partner’s account by iContact (i) following such Customer’s request or (ii) because such Customer requires access to certain templates or other features and belongs under another partner.

d) “Login Information”: any passwords, access codes, user IDs, or other login information provided to or used by Partner to access the iContact Partner Platform, or by Partner, its Customers, or their Users to access the iContact Marketing solution.

e) “Managed Customer” means a third party that has subscribed to the Products where the Partner has complete access to such third party’s account (including its Subscriber Data) by means of the Partner Portal/iContact Email Platform.

f) “Partner-Referred Customer”: means a third party that has subscribed to the Products through use of the Referral Link where the Partner does not have access to such third party’s account (including its Subscriber Data) by means of the Partner Portal.

g) “Products” means the Revenue/Discount Products and any other iContact online products and services provided to Partner for the purposes of this Agreement.

h) “Proprietary Rights”: all proprietary rights of any kind, including without limitation patents, trademarks, trade dress, copyrights, trade secrets, and other intellectual property and industrial property rights.

i) “Suppliers”: any and all third-party agents, business associates, partners, licensors, partners, and other vendors of goods or services used by iContact to provide the iContact Partner Solution or the iContact Marketing Solution.

j) “Term”. The Term of this Agreement shall begin upon creation of Partner’s iContact Partner Platform account and continue until terminated or Partner program is canceled.

k) “User”: an individual employee or representative of a specific Customer who is provided access to the iContact Marketing Solution.

l) “User Agreements” means the policies available on iContact’s website, including the Product Terms and Conditions, Privacy Policy/Privacy Statement, Anti-Spam Policy, and any other acceptable use policy, content restrictions, user agreements, and other terms and conditions governing use of the Products, generally available through the iContact website, as amended from time to time in its sole discretion.

1.2 Interpretation. The headings are for reference only and do not define, limit, or enlarge the scope or meaning of this Partner Agreement or any of its provisions.

SECTION 2: Grant of Rights

2.1 Grant. Subject to the terms and conditions of this Partner Agreement, iContact hereby appoints Partner as a non-exclusive reseller and referral partner of the iContact Marketing Solution to Customers during the Term. Such appointment shall be non-transferable and non-sublicensable, and shall be subject to the limitations and restrictions set forth in this Partner Agreement.

2.2 Reservation. Nothing in this Partner Agreement limits, impairs, or restricts iContact’s right and ability to:

(a) directly or indirectly market, advertise, distribute, demonstrate, sell, offer to sell, resell, license, test, maintain, support, service, otherwise commercially exploit, and provide other services relating to the iContact Marketing Solution or any other products or services on a worldwide or territorial basis, including through other channels, resellers, referral sources, distributors, and sales representatives; or

(b) discontinue the provision, maintenance, or support of the iContact Reseller Platform or the iContact Marketing Solution.

SECTION 3: Licenses and Restrictions

3.1 iContact Partner Platform. Subject to the terms and conditions of this Partner Agreement, iContact hereby grants to Partner a limited, restricted, non-exclusive, and non-transferable license during the Term for Partner to use the iContact Partner Platform (“Partner Platform” or the “Platform”), which allows Partner to promote, market, refer, advertise, demonstrate, sell, offer for sale, test, support, service, and provide other services relating to the iContact Marketing Solution to and for potential Customers (collectively, “Partner Services”). This license may not be sublicensed.

Partner is prohibited from reselling, sublicensing, distributing, or otherwise making available the Partner Platform to any third party. Partner is also prohibited from using the Partner Platform other than as provided herein.

3.2 iContact Marketing Solution. Subject to the terms and conditions of this Partner Agreement and the End User Agreement, iContact hereby grants to Partner a limited, restricted, non-exclusive, and non-transferable license during the Term for Partner to use the iContact Marketing Solution with a limit of 250 contacts and 500 sends:

(a) in connection with the Partner Services; and

(b) for Partner’s own email marketing needs. Partner shall be entitled to sublicense the iContact Marketing Solution to its Customers strictly for the Customers’ own email marketing needs only and not, for example, for resale or use by third parties. Partner shall guarantee and ensure that its Customers are prohibited from using the iContact Marketing Solution other than as provided herein. Partner is prohibited from reselling, sublicensing, distributing, or otherwise making the iContact Marketing Solution available to any third party other than its Customers as provided herein. Partner is also prohibited from using the iContact Marketing Solution other than as provided herein.

3.3 iContact Marketing Materials. Subject to the terms and conditions of this Partner Agreement, iContact hereby grants to Partner a limited, restricted, non-exclusive, and non-transferable license during the Term to use, reproduce, and distribute any iContact Marketing Materials provided by iContact in an unaltered state and in connection with the Partner Services. Partner agrees not to make any derivative works from the iContact Marketing Materials without iContact’s prior written consent. This license may not be sublicensed.

To the extent Partner uses images provided by iContact, iContact hereby grants Partner a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state and solely in connection with the Partner Services or pursuant to Partner’s use of the iContact Marketing Solution. This license may not be sublicensed.

3.4 No License to Proprietary Rights. Partner acknowledges and agrees that the iContact Partner Platform, the iContact Marketing Solution, and the iContact Marketing Materials, including all parts thereof and all other software, technology, documents, and other information used to provide the same, are the exclusive property of iContact and its Affiliates, and are the subject of various Proprietary Rights held by iContact and its Affiliates. Partner and its Customers will not acquire any rights, title, or interest in or to any of the foregoing. This Agreement does not provide any express or implied license to use, modify, or improve the iContact Partner Platform or the iContact Services, or to otherwise use or exploit the iContact Partner Platform, the iContact Solution, or iContact’s Proprietary Rights in any manner not expressly permitted herein.

3.5 Restrictions. Partner agrees to limit its use of the iContact Partner Platform, the iContact Marketing Solution, and the iContact Marketing Materials to uses expressly authorized in this Agreement. Notwithstanding the foregoing, Partner agrees not to:

(a) attempt to create or derive any of the source code, technology, or data within the iContact Partner Platform or the iContact Marketing Solution by disassembly, reverse engineering, or any other method, otherwise reduce the iContact Partner Platform or the iContact Marketing Solution to a human-perceivable form, or modify or translate any part of the iContact Partner Platform or the iContact Marketing Solution; and

(b) attempt to obtain Proprietary Rights related to the iContact Partner Platform, the iContact Marketing Solution, or the iContact brand.

3.6 NOFOLLOW Links and Brand Bidding

In performing this Agreement, Partner agrees to the following: 

(a) Partner agrees to use only NOFOLLOW links when promoting the Platform. Partner will not use any other type of link, including but not limited to dofollow links, redirect links, or any other link that could be harmful to Platform’s search engine rankings or reputation. Partner acknowledges that the use of NOFOLLOW links is necessary to comply with Platform’s policies and to maintain the integrity of the Platform’s search engine rankings.

(b) Partner agrees not to bid on Platform’s brand name or use Platform’s name in any Google Ads or other paid marketing. Partner acknowledges that this is necessary to avoid any confusion or misrepresentation of the Platform, and to protect the Platform’s brand and reputation.

SECTION 4: Partner Obligations

4.1 Standard of Conduct. At all times during the Term, Partner will perform its obligations under this Partner Agreement and conduct itself in a lawful, ethical, fair, competent, and professional manner, in accordance with the highest standards of the industry. Partner will not, through any action, inaction, statement, or omission, negatively impact the reputation or customer goodwill of iContact and the iContact brand.

At all times during the Term, Partner will perform the Partner Services only through employees and contractors who are thoroughly knowledgeable about how to use, market, advertise, demonstrate, sell, offer for sale, test, support, service, and provide other services relating to the iContact Partner Platform and the iContact Marketing Solution.

4.2 iContact Policy and End User Requirements. Partner has reviewed and agreed to the applicable iContact policies posted on the iContact website and in effect from time to time, including the User Agreements. Partner shall not distribute or otherwise make available the Products to any third party, including but not limited to all Managed Customers (each an “End User”) except through the Referral Link, any free account trial sign-up page or the Partner Platform. In any case, Partner shall not make the Products available to an End User unless such End User obtains a subscription for the Products (directly or indirectly through Partner) and acknowledges and agrees to abide by, or Partner is authorized to bind End User to abide by, the User Agreements. Partner agrees to ensure its Customers comply with the End User Agreements and will cooperate with iContact to investigate any alleged breaches thereof.

4.3 Equipment & Services. Partner is solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary for Partner to perform the Partner Services and use the iContact Partner Platform and the iContact Marketing Solution, including providing its own computer equipment, internet access, and email service. iContact shall have no responsibility for the same.

Partner shall guarantee and ensure that its Customers are solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary to use the iContact Marketing Solution, including providing their own computer equipment, internet access, and email service. iContact shall have no responsibility for the same.

4.4 Protection of Login Information. Partner is solely responsible for protecting and safeguarding its Login Information. Partner shall not disclose or make available its Login Information other than to its authorized employees or contractors. Partner shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, its accounts. Partner is entirely responsible for any and all activities that occur by anyone who has authorized access to Partner’s accounts, or any other party with whom Partner has shared its Login Information.

Partner shall guarantee and ensure that its Customers are solely responsible for protecting and safeguarding their own Login Information. Partner shall obtain its Customers’ agreement not to disclose or make available their Login Information other than to their authorized employees or contractors. Partner shall guarantee and ensure that its Customers use all commercially reasonable efforts to prevent unauthorized access to, or use of, their accounts. Partner shall guarantee and ensure that its Customers are entirely responsible for any and all activities that occur by anyone who has authorized access to their accounts, or any other party with whom a Customer has shared its Login Information.

Partner agrees to notify iContact immediately of any unauthorized access or use of its accounts or Login Information, or any other breach of security. Partner shall make any disclosures related to such unauthorized access or use, or other breach of security, that may be required under applicable law. Partner shall also procure each Customer’s guarantee and agreement that it will notify Partner promptly of any unauthorized access or use of its account or Login Information, or any other breach of security. If Partner is in receipt of a notification from a Customer, Partner agrees to immediately notify iContact.

iContact is not obligated to verify the actual identity or authority of any individual using the valid Login Information of the Partner, its Customers, or their Users. If iContact, in its absolute discretion, considers Login Information to be insecure or to have been compromised, then iContact may immediately cancel the affected Login Information without notice and/or suspend any affected accounts.

iContact will not be liable for any loss that the Partner, its Customers, their Users, or any other parties may incur as a result of any authorized or unauthorized use of the iContact Partner Platform or the iContact Marketing Solution. However, Partner, its Customers, and their Users may be held liable for losses incurred by iContact or another party due to any authorized or unauthorized use of the iContact Partner Platform or the iContact Marketing Solution.

4.5 Records. During the Term and for six (6) years thereafter, Partner will create and retain records and books of account relating to the Partner Services, in accordance with generally accepted accounting principles. Upon request by iContact, Partner will promptly provide to iContact all records and books of account, copies of all executed User Agreements and/or other evidence that customers have accepted the User Agreements with Partner. 

4.6 Governmental Approvals. Partner will obtain and comply with all governmental approvals, licenses, permits, declarations, rules, regulations, and registrations that may be required for the resale and provision of the Partner Services and/or performance of Partner’s obligations under this Partner Agreement.

4.6 Customer/User Notices. Upon request by iContact, Partner will promptly deliver to its Customers any notices regarding the iContact Marketing Solution.

4.7 Notification. Partner will immediately notify iContact of any notices received by Partner that could adversely affect iContact or its Affiliates, including without limitation notices of actual or potential third-party claims or proceedings relating to the iContact Partner Platform or the iContact Marketing Solution.

4.8 Errors. Partner will promptly notify iContact of any suspected errors, bugs, or other problems with the iContact Partner Platform or the iContact Marketing Solution.

SECTION 5: Fees, Commission, and Payments

5.1 Commission. For every month-to-month Product sold via Partner referral, Partner shall receive a commission of fifty percent (50%) of the resold Product’s monthly subscription fee of the first four (4) months of subscription fees after such fees have been collected in full by iContact. For every prepaid annual subscription Product sold via Partner referral, Partner shall receive a commission of twenty five percent (25%) of the annual fee after such fee has been collected in full by iContact. Partner shall receive either monthly or quarterly commission checks at iContact’s discretion, to be paid out when Partner accumulates over one hundred dollars ($100) in commission under this Partner Agreement. iContact will send a monthly or quarterly commission report to Partner. If, for any reason, a Customer receives a refund from iContact, Partner shall also refund the prorated amount of the commission earned.

5.2 Fees. Partner will not be charged subscription fees for the iContact Marketing Solution with a limit of 250 contacts. However, Partner is solely responsible for, and will pay to iContact, any applicable upgrade fees, along with all applicable taxes. ALL FEES ARE NONREFUNDABLE. Failure by Partner or Customers to use their accounts will not be a basis for refusing to pay fees in accordance with this Partner Agreement. Payment of Partner’s account balance is due monthly in the currency in which billed. iContact may, at its option and sole discretion, accumulate upgrade and additional fees incurred during Partner’s monthly billing cycle and submit such fees as one or more aggregate charges during or at the end of each cycle.

If Partner has questions regarding any charges that have been applied to its account, Partner must contact iContact’s customer support within thirty (30) days of the charge.

5.3 Taxes. Taxes include without limitation federal, state, provincial, municipal, or any other governmental tax, tax-like charge, fee, or assessment. All charges will be exclusive of V.A.T, sales tax, or other taxes, except as required by law. Canadian residents will be charged G.S.T. and P.S.T. as applicable.

SECTION 6: Term and Termination

6.1 Early Termination Without Cause. Partner may terminate this Partner Agreement at any time without cause by providing notice to iContact. iContact may, at iContact’s sole discretion, perform quarterly review of Partner’s account to verify activity. If iContact discovers that Partner has no resales within the past one hundred and eighty (180) days, iContact reserves the right to cancel Partner’s account. iContact additionally reserves the right to terminate this Partner Agreement at any time and for any reason. 

6.2 Termination for Cause. Notwithstanding any other provision, either Party may terminate this Partner Agreement for cause effective immediately upon delivery of a notice of termination to the other Party if the other Party has materially breached this Partner Agreement and has not remedied the breach within thirty (30) days after written notice. Notice of the breach must:

(a) identify the breach;

(b) state the non-breaching Party’s intention to terminate this Partner Agreement if the breach is not remedied; and

(c) be delivered within thirty (30) days of the breach.

If the breaching Party does not cure the breach within thirty (30) days of receiving notice, the non-breaching party may deliver a notice of termination. The notice of termination must be delivered within ninety (90) days of the breach to be effective. If the breach is of a continuing nature, these provisions apply for each instance of breach.

6.3 Termination Due to Bankruptcy. iContact may in its absolute discretion terminate this Partner Agreement for cause immediately upon delivery of notice to Partner if Partner becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent, or takes any step or proceeding for its liquidation, dissolution, or winding up.

6.4 Termination, Suspension, Restriction, or Other Limitation Under Special Circumstances. In its sole discretion and without liability, iContact may terminate, suspend, restrict, or otherwise limit Partner’s and/or any of its Customers’ use of, and licenses to, the iContact Partner Platform or the iContact Marketing Solution based on:

(a) iContact’s reasonable belief that Partner or its Customers have violated or will violate this Agreement;

(b) an order issued by a court or other governmental authority requiring such termination, suspension, restriction, or limit;

(c) iContact’s reasonable belief that use of the iContact Partner Platform or the iContact Marketing Solution by Partner or its Customers have or will adversely affect iContact’s equipment, security network infrastructure, or service to others; or

(d) Partner’s failure to pay undisputed fees after being provided notice. 

iContact will use commercially reasonable efforts to provide Partner prior notice of termination, suspension, restriction, or other limitation under this Section 6.4. If prior notice is not possible, iContact will provide notice as soon as reasonably practicable.

In the case of termination under this Section 6.4, the provisions of Section 6.5 shall apply. In the case of suspension, restriction, or other limitation under this Section 6.4, fees may continue to accrue. Other than in cases of willful, intentional, or knowing violations of Section 7, iContact will use commercially reasonable efforts to work with Partner to resolve any issues and reinstate the Partner Services to the fullest extent possible.

iContact reserves the right to terminate, suspend, restrict, or otherwise limit Partner or its Customers’ access to the iContact Partner Platform or the iContact Marketing Solution if iContact, in its sole discretion, believes that the iContact Partner Platform or the iContact Marketing Solution are used for a purpose that is unlawful or prohibited by this Partner Agreement, any applicable Customer Agreement, or any other notices.

iContact shall have no obligation to maintain any messages or other content in suspended, restricted, or terminated accounts, or forward any unread or unsent messages to Partner, a Customer, a User, or any other party.

6.5 Effect of Termination. Immediately upon termination of this Partner Agreement:

(a) Partner will cease using the iContact Partner Platform or the iContact Marketing Solution, and will cease providing Partner Services;

(b) Partner’s Customers will cease using the iContact Marketing Solution;

(c) iContact will cease providing the iContact Partner Platform to Partner;

(d) iContact will cease providing the iContact Marketing Solution to Partner and its Customers; and

(e) Partner will pay to iContact all fees accrued up to the date of termination without any right of deduction or setoff.

6.6 Survival. Notwithstanding anything to the contrary, the following provisions of this Partner Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Partner Agreement, will remain in full force and effect, and WILL be binding upon the Parties: Sections 3.4, 3.5, 4-12.

SECTION 7: No Unlawful or Prohibited Use

7.1 Acceptable Use & Legal Compliance. Partner is solely responsible and liable for its actions in providing the Partner Services and its use of the iContact Partner Platform or the iContact Marketing Solution, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the iContact Marketing Solution, and any other acts and omissions. Partner will ensure that its provision of the Partner Services and its use of the iContact Partner Platform or the iContact Marketing Solution:

(a) comply with all applicable laws, rules, and regulations, as well as this Partner Agreement; and

(b) do not infringe the rights of other parties. iContact shall have no responsibility for Partner’s infringement under this clause.

Partner shall guarantee and ensure that each of its Customers is solely responsible for its own activities and those of its Users, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the iContact Marketing Solution, and any other acts and omissions. With respect to a Customer’s use of the iContact Marketing Solution, Partner shall guarantee and ensure that each of its Customers agrees:

(a) to comply with all applicable laws, rules, and regulations, as well as the applicable Customer Agreement; and

(b) not to infringe the rights of other parties. iContact shall have no responsibility for Partner’s Customers’ infringement under this clause.

Partner represents that the information submitted for transmission via the iContact network for the iContact Partner Platform or the iContact Marketing Solution is for lawful purposes only and that the transmission of messages or files is not in violation of any applicable laws, rules, and regulations, including without limitation encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability, or otherwise violate any local, provincial, state, national, or other law.

Partner may not use the iContact Partner Platform or the iContact Marketing Solution to upload, post, reproduce, or distribute, in any way, any information, software, or other material protected by another party’s Proprietary Rights without first obtaining permission.

Partner agrees to comply with all applicable laws, rules, and regulations, including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. Violations of Section 7 will cause Partner and/or its Customers’ accounts to be terminated, suspended, restricted, or otherwise limited pursuant to Section 6.4 iContact reserves the right to take any other action that it deems necessary or appropriate, in its sole discretion, if iContact believes a Partner, its Customer, or their Users have violated or will violate Section 7.

7.2 Unsolicited Email Marketing. The transmission of unsolicited email is regulated by the CAN-SPAM Act (United States), the EU Opt-In Directive (Europe), and CASL (Canada), among other laws, rules, and regulations in these and other countries, states, provinces, and jurisdictions.

Unsolicited email marketing in violation of such laws, rules, and regulations using the iContact Marketing Solution is prohibited and is a material violation of this Partner Agreement. Partner warrants its compliance with laws, rules, and regulations regarding unsolicited email marketing and will require its Customers to comply as well.

7.3 Message Content. Partner is fully responsible for the content of its transmissions through the iContact Marketing Solution. Partner agrees and acknowledges that:

(a) Partner is the creator of all content;

(b) iContact is not the author or publisher of any content; and

(c) iContact does not rent or sell lists of any kind. iContact acts simply as a passive conduit for Partner, its Customers, and their Users to send and receive information of their own choosing. Partner shall guarantee and ensure its Customers’ agreement to the same.

Partner and its Customers shall not use the iContact Partner Platform or the iContact Marketing Solution to store:

(a) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191); or

(b) any other type of information that imposes independent legal or regulatory obligations upon iContact.

In accordance with the User Agreements, iContact prohibits the use of the iContact Marketing Solution to send messages that encourage, promote, provide, sell, or offer to sell products or content relating to illegal or fraudulent activities, or services related to the same.

This includes without limitation illegal drugs; counterfeit or pirated goods; instructions on how to assemble or otherwise make bombs, grenades, or other weapons; and material that exploits children, encourages violence, or contains obscenity or sexually explicit content. This is not an exhaustive list and iContact, in its sole discretion, may determine whether a particular message is prohibited. iContact’s determination shall be final, binding, and conclusive.

Any unlawful or prohibited content stored on iContact’s servers may be deleted at any time by iContact without notice. Upon receipt of a complaint, iContact reserves the right, but is not obligated, to review the content of any messages sent using the iContact Marketing Solution for compliance with applicable laws, rules, and regulations, as well as this Partner Agreement.

iContact does not:

(a) Represent or endorse the accuracy or reliability of any opinion, advice, or statement made through the iContact Marketing Solution; 

(b) Assume liability for any harassing, offensive, or obscene/sexually explicit material distributed through the iContact Marketing Solution by Partners, its Customers, or their Users, or any other parties using the accounts of the foregoing;

(c) Assume any liability for material distributed through the iContact Marketing Solution by Partners, its Customers, or their Users, or any other parties using the accounts of the foregoing, that violates of any other party’s rights, including Proprietary Rights and rights of publicity or privacy; or 

(d) Assume liability for claims concerning unsolicited messages sent by Partners, its Customers, or their Users, or any other parties using the accounts of the foregoing, including without limitation claims under the CAN-SPAM Act, the EU Opt-In Directive, and CASL.

7.4 Unauthorized Access Prohibited. Partner may not attempt to gain unauthorized access to the iContact Partner Platform, the iContact Marketing Solution accounts, computer systems or networks connected to any iContact server through hacking, password mining, or any other means.

Partner will not obstruct the identification procedures used by iContact in the iContact Partner Platform or the iContact Marketing Solution. Partner shall obtain its Customers’ agreement not to do the same.

Partner and its Customers may not use the iContact Partner Platform or the iContact Marketing Solution in any manner that could damage, disable, overburden, or impair any iContact server or a network connected to an iContact server, or interfere with any other party’s use and enjoyment of the iContact Partner Platform or the iContact Marketing Solution.

With regard to contact-based subscription plans, should iContact deem Partner or its Customers’ cumulative account activity, including but not limited to factors such as high send volume or large contact lists, to be detrimental to iContact’s ability to provide the iContact Marketing Solution to Partner, its Customers, or others, iContact reserves the right in its sole discretion to move Partner and its Customers to a volume-based subscription plan.

Repeated uploading and removing of unique email addresses in an attempt to circumvent fee schedules and billing procedures for contact-based subscription plans is prohibited.

7.5 Customer or User Violations. To the extent that iContact suspects that Partner’s Customers and/or Users have violated, or will violate, any of the provisions in Section 7, Partner agrees to work in good faith with iContact to investigate and resolve any issues.

Section 8: Representations, Limited warranty, & Disclaimer

8.1 Accuracy of Account Information. Partner represents and warrants that the information provided to iContact to set up Partner’s account is current, complete, and accurate. Partner agrees to notify iContact promptly of any changes to this information as required to keep it current, complete, and accurate.

8.2 Authority to Sign. Partner represents and warrants that the individual signing on its behalf is at least eighteen (18) years of age or, as applicable, the age of majority in the country, state, or province in which Partner resides, and that this individual possesses the legal right and ability to enter into this Partner agreement. If the individual is registering on behalf of a corporation, Partner warrants that the individual has the authority to bind the corporation.

Each party represents and warrants that it has all requisite power, authority, and approvals to enter into, execute, and deliver this Partner agreement and to perform fully its obligations hereunder, and its entering into and performance of this Partner agreement does not and will not during the term conflict with, or result in the breach of, any express or implied obligation or duty to any other party.

8.3 General Disclaimer. Use of the iContact Partner Platform and the iContact Marketing Solution is at Partner’s, its Customers’, and their users’ own risk. The iContact Partner Platform and the iContact Marketing Solution may be affected by numerous factors beyond iContact’s control, and may not be continuous, uninterrupted, or secure. Security and privacy risks cannot be eliminated. Login information may not prevent unauthorized access. iContact is not responsible for the use of the iContact Partner Platform and the iContact Marketing Solution by Partner, its customers, and their users.

8.4 No Other Warranties. Except for any express warranties set forth in sections 8.1 and 8.2, the iContact Partner Platform and the iContact Marketing Solution are provided on an “as is” and “as available” basis. There are no other warranties, representations, or conditions of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade, or otherwise with respect to the iContact Partner Platform or the iContact Marketing Solution.

iContact further expressly disclaims guarantee of continued availability of the iContact Partner Platform or the iContact Marketing Solution, or any implied warranty or condition of merchantability, satisfactory quality, durability or fitness for a particular purpose, title, or non-infringement. No representation or other affirmation of fact including but not limited to marketing literature or collateral, or statements regarding performance of the services by iContact that are not contained in this section 8 shall be considered to be a warranty or representation, and should not be relied upon and is not binding upon iContact.

Section 9: Limitation of liability

9.1 Limitation of Liability. None of iContact nor any of its affiliates or suppliers shall be held responsible in any way or by any means, either directly or indirectly, for any communications or other difficulties outside of iContact’s or any such affiliates’ or suppliers’ control that could lead to any delay, interruption, or misdirection of messages.

The aggregate liability of iContact or its affiliates and suppliers, whether in contract (including fundamental breach or failure of an essential purpose), tort (including negligence), misrepresentation, or otherwise in respect of a single occurrence or a series of occurrences shall in no circumstances exceed the monthly recurring revenue paid or payable by Reseller to iContact for the month during which the liability arose.

In no event shall iContact or its affiliates and suppliers be liable to reseller, its customers, their users, or any other party for any punitive, indirect, incidental, special, or consequential damages, or for any failure to realize expected savings, loss of business, loss of revenues or profits, loss of data, or any other commercial or economic loss (including but not limited to loss of data resulting from delays, non-deliveries, wrong deliveries, service interruptions, performance or failure of the internet or iContact’s internet service provider, or deletion or failure to save deliveries), even if iContact has been advised of the possibility of such damages or if such damages are foreseeable.

In this section, “iContact” includes iContact and its affiliates and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties.

In the event applicable law does not permit such exclusions to be completely disclaimed, these exclusions shall be interpreted as necessary to give iContact the full benefit of any disclaimer or limitation as permitted by applicable law.

9.2 Third Party Claims. Partner is solely liable and responsible for any and all claims and proceedings directly or indirectly arising from, connected with, or relating to the use of the iContact Partner Platform and the iContact Marketing Solution by reseller, its customers, their users, or anyone using any of their accounts. Reseller is also solely liable for any breach of this agreement, violation or infringement of the rights of other parties, violation of the acceptable use policy, or violation of any applicable civil or criminal law, rule, or regulation by the Reseller, its Customers, or their Users. iContact disclaims responsibility and liability for such matters to the fullest extent permitted by law.

9.3 Fair Allocation of Liability. This section 9 represents a fair allocation of risk and liability, which is reflected in the fees to be paid hereunder.

SECTION 10: Indemnification

10.1 iContact Indemnity. Subject to Sections 10.3 and 10.4, iContact will defend, indemnify, save, and hold harmless Partner from and against any and all third party claims and proceedings directly or indirectly relating to any proven or unproven allegation that the iContact Partner Platform, the iContact Marketing Solution, or any part thereof, when used by Partner, its Customers, or their Users in accordance with this Partner Agreement, infringes or violates a third party’s Proprietary Rights, excluding any such actual or alleged infringement or violation resulting from:

(a) the combination of the iContact Partner Platform or the iContact Marketing Solution with software, products, or services not supplied by iContact;

(b) any breach by Partner of its obligations under this Partner Agreement; or

(c) any violation of applicable law by Partner, its Customers, or their Users.

10.2 Partner Indemnity. Subject to Sections 10.3 and 10.4, Partner will indemnify, defend, and hold harmless iContact, its Affiliates, and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties from and against any claims and proceedings directly or indirectly relating to:

(a) the use of the iContact Partner Platform or the iContact Marketing Solution by Partner, its Customers, or their Users;

(b) any negligence, misconduct, or breach of this Partner Agreement or applicable Customer Agreement by Partner, its Customers, their Users, or any other party for whom Partner or any Customer or User is responsible or liable under this Partner Agreement;

(c) the content and delivery of any of Partner’s, its Customers’, or their Users’ messages using the iContact Marketing Solution;

(d) the infringement of any trademark or copyright by Partner, its Customers, or their Users;

(e) the unavailability, suspension, or termination of all or any of the Partner Services; or

(f) the expiration or termination of this Partner Agreement.

10.3 Mutual Indemnity. If any claim or proceeding gives rise to an indemnity obligation by both Parties pursuant to Sections 10.1 or 10.2, the liability of each Party to indemnify the other Party will be apportioned and offset in proportion to the responsibility of each Party for the matter giving rise to the claim or proceeding.

10.4 Indemnification Procedure. Notwithstanding Sections 10.1 and 10.2, the indemnifying Party’s obligations are conditional upon the indemnified Party:

(a) giving the indemnifying Party prompt notice of the claim or proceeding;

(b) granting control of the defense and settlement of the claim or proceeding to the indemnifying Party (provided that a claim or proceeding will not be settled without the prior written consent of the indemnified Party, which consent will not be unreasonably withheld or delayed); and

(c) reasonably cooperating with the indemnifying Party regarding the defense and settlement of the claim or proceeding at the indemnified Party’s expense.

Notwithstanding anything contained in this Partner Agreement to the contrary, the indemnified Party retains the right to participate in the defense of and settlement negotiations relating to any claim or proceeding with counsel of its own selection at its sole cost and expense.

SECTION 11: Privacy Policy, Data Protection & Storage

11.1 Privacy Policy. iContact is dedicated to establishing a trusting relationship with its resellers and customers based on respect for personal identity and information, by promoting the use of fair information practices. A current copy of iContact’s Privacy Policy is available here (https://www.icontact.com/legal/privacy/) and is incorporated herein by reference.

11.2 Storage. While a particular account is active, iContact may store messages sent and received for a period of time. Contact lists are not deleted while the account is in good standing and subject to the terms of the End User Agreement. iContact shall maintain administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of Partner and Customer information in its possession.

Partner acknowledges that iContact may change its practices and limitations concerning the storage of messages at any time. Partner further agrees that this feature is provided as a convenience to its resellers and customers only, and iContact and its Affiliates have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the iContact Marketing Solution.

11.3 Data Protection and Processing (Business Customers Only):

If Partner or Customer is a business customer and the Services involve the processing of personal data which is subject to the General Data Protection Legislation (EU) 2016/679, the “GDPR”), iContact is a processor and Partner and Customers are the controller in relation to such personal data (as defined in the GDPR), which is processed pursuant to this Agreement. Partner or Customer (as applicable) and iContact agree to abide by the iContact Data Processing Schedule.

SECTION 12: Miscellaneous

12.1 Further Assurances. Each Party will execute any further documents and do any further acts or things that may be necessary to implement and carry out this Partner Agreement.

12.2 Inurement. This Partner Agreement will inure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns.

12.3 Force Majeure. Notwithstanding any other provision, iContact will not be liable to Partner, its Customers, their Users, or any other party for any delay in performing or failure to perform any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond iContact’s reasonable control, including without limitation:

(a) any act of God, fire, explosion, lightning, storm, flood, earthquake, accident, or natural disaster;

(b) war, terrorism, hostilities, civil war, insurrection, riot, civil unrest, commotion, or acts of a public enemy;

(c) labor shortages, strikes, lock-outs, or other labor, industrial or trade action, disputes, disruption, or disturbances (whether involving its employees or those of any other party);

(d) theft, sabotage, malicious damage, fraud, epidemic, or quarantine restrictions;

(e) material shortages or rationing;

(f) general failure, malfunction or unavailability of power, utilities, telecommunications, data communications, or related services;

(g) action, inaction, demand, order, restraint, restriction, requirement, prevention, or hindrance by any government or court; or

(h) applicable law or regulation. Any delay or failure of this kind will not be deemed to be a breach of this Partner Agreement by iContact, and the time for iContact’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.

12.4 Relationship of Parties. The Parties are independent contractors, and nothing in this Partner Agreement or done pursuant to this Partner Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. Without limiting the generality of the foregoing, under no circumstances will Partner have the authority, or purport to have the authority, to legally bind iContact to any agreement with any Customer, User, or other party.

12.5 Assignment. This Partner Agreement and Partner’s rights, duties, obligations, and interests hereunder are personal to Partner, and Partner may not directly or indirectly, by way of merger, acquisition, amalgamation, operation of law, or otherwise, assign this Partner Agreement or its rights, duties, obligations, or interests hereunder to any other party without the prior written consent of iContact, which consent may be withheld by iContact in its sole discretion, and any attempt to do so will be null and void and have no force or effect.

12.6 No Third Party Beneficiaries. Unless otherwise expressly provided in this Partner Agreement, no provisions of this Partner Agreement are intended to or will be construed to confer upon or give to any party other than Partner and iContact, and their respective successors and permitted assigns, any rights, remedies, or other benefits. Without limiting the generality of the foregoing, Customers and Users will not have any rights under this Partner Agreement.

12.7 Lawyers’ Fees. In addition to any other relief awarded in any court proceedings arising out of or relating to this Partner Agreement, the prevailing Party will be entitled to its reasonable lawyers’ fees, disbursements, and expenses.

12.8 Notices. Except for any electronic notices provided for in this Partner Agreement or invoices pursuant to Section 5, any notice required or permitted to be given under this Partner Agreement will be in writing and will be delivered by personal delivery, by overnight or express courier, or by facsimile transmission to iContact at its head office address indicated from time to time on its website and to Partner at the address indicated on Partner’s account, or at such other addresses and contact methods as a Party may from time to time designate in a notice to the other Party. A notice delivered personally, by courier, or facsimile will be deemed to have been received on the next business day following, as applicable, the date of delivery or the fax transmission (with confirming receipt).

12.9 No Waiver. No consent or waiver by either Party to or of any breach or default by the other Party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by both Parties.

12.10 Remedies. Except as specifically provided herein, the specific rights and remedies of a Party hereunder are cumulative and not exclusive of any other rights or remedies to which such Party may be lawfully entitled hereunder or at law or equity.

12.11 Severability. If any provision of this Partner Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect.

12.12 Telephone Recording. Partner acknowledges and agrees that iContact may record all telephone calls for the purposes of training, improvement of services, fraud prevention, and to ensure the accuracy of instructions communicated to iContact. All telephone recordings shall be the property of iContact.

12.13 Governing Law. This Partner Agreement shall be governed and construed in accordance with the substantive laws of the state of North Carolina, without regard to conflict of law principles. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Partner hereby consents to the jurisdiction of such province and agrees that all disputes shall be tried in the state of North Carolina. Partner expressly waives any right, and agrees not to have any dispute under the Partner Agreement, tried or otherwise determined by a jury, except where required by law.

12.14 Complete Agreement. This Partner Agreement sets forth the entire agreement of the Parties with respect to the iContact Partner Platform and iContact Marketing Solution, and supersedes any and all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, between them with respect to such subject matter. This Partner Agreement may only be modified by a written instrument signed by both Parties, or their successors or permitted assigns.