Partner Program Agreement 

Please carefully read the terms and conditions to this Partner Program Agreement (“Agreement”) between you (“Partner” or “you”) and Peaberry Software, Inc. (“Customer.io”). By signing up to join the partner program (“Partner Program” or “Program”), accessing or using the Partner Portal (defined below), you agree to the terms and conditions of this Agreement. If you are participating in the Program on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “Partner” or “you” reference your company. Definitions of capitalized terms are found in Section 14 (Definitions) or contextually below.

Please read Customer.io’s Privacy Policy, which along with any additional terms you agree to pursuant to this Agreement are included as part of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you may not participate in the Program. Customer.io may modify this Agreement at any time by posting a notice on the Partner Portal (defined below), or by sending you a notice via email. You will be responsible for reviewing and becoming familiar with any such modifications. Your continued participation in the Program following such notification constitutes your acceptance of the modified terms.

1. Program Overview.

1.1 Generally. Under the Program, Partner has the rights and responsibilities described in this Agreement. The Program has certain tiers of usage and benefits (each, a “Program Tier”) as set forth in Attachment 1. Customer.io will determine Partner’s Program Tier and will provide Partner with notice of such Program Tier and any subsequent changes thereto. Subject to Partner’s compliance with this Agreement, Partner will enjoy the benefits for its applicable Program Tier.

1.2 Meetings. As part of the Program, Partner will meet with a representative of Customer.io once per quarter or other mutually agreed cadence.

2. Partner Use of the Customer.io Services. ****Customer.io will provide Partner an account for use of the Services under this Section 2. Partner’s use of the Services is subject to Customer.io’s Terms of Service, Privacy Policy, and Anti-Spam Policy (“ToS”). To the extent that this Agreement conflicts with the ToS, this Agreement shall control.

2.1 Partner Rights. Subject to this Agreement, during the Term, Partner may use the Services solely for internal training, testing and for demonstrations to prospective clients. Use is subject to a maximum of 5,000 users and 5,000 email sends. Any usage beyond such limitations will subject Partner to applicable overage fees, as determined by Customer.io.

2.2 No Production Use or Real Data. Partner may not use the Services for production purposes or for any purpose other than as permitted in Section 2.1 (Partner Rights). Partner agrees to use only non-production test data (e.g., dummy data) with the Services, not any production data, personal information, confidential data, or Client data.

2.3 Termination and Disclaimers. At any time and for any reason, either party may terminate Partner’s access to the Services and Customer.io may access, modify or delete any Partner data in the Services. Customer.io has no support, warranty, service level or other obligations for the Services made available under this Agreement and no storage, security, confidentiality or privacy obligations for any Partner data in the Services.

2.4 Separate ToS. Nothing in this Agreement (including this Section 2) modifies any other agreement between Partner and Customer.io for Partner’s use of the Services as a customer of the Service.

3. Referral Program

3.1 Registration. Partner must register prospective client opportunities through the Partner Portal in order for such prospective client opportunity to be considered for acceptance by Customer.io.

3.2 Acceptance; Registered Opportunities. Customer.io has sole discretion whether to accept an opportunity and may reject an opportunity for any reason including, but not limited to, if the prospective client opportunity is (a) an existing client of Customer.io; (b) already in discussions with Customer.io, its affiliates or another partner; or (c) in the 45 days prior to registration has been (i) a Registered Opportunity, or (ii) a client of Customer.io. Customer.io’s acceptance or rejection of a prospective client opportunity will be provided through the Partner Portal. If Customer.io does not respond to a prospective client opportunity within 5 days of Partner’s registration, it is deemed rejected. Prospective client opportunities that Partner registers through the Partner Portal and that Customer.io accepts are “Registered Opportunities”.

3.3 Scope and Expiration. Each Registered Opportunity applies only to the specific client opportunity it identifies, not to any other sale or renewal (including to that client or its affiliates). Registered Opportunities expire 6 months after registration unless Customer.io specifies another period in writing at the time of acceptance.

3.4 Sales Efforts. For each Registered Opportunity, Partner must (a) actively introduce Customer.io to the prospective client, which at minimum includes introduction to an executive with budgetary responsibility for the department which would purchase a subscription to the Services, (b) provide any ongoing sales support as reasonably requested by Customer.io, and (c) provide reasonable notice to Customer.io upon Partner’s intent to cease contact with the prospective client as a part of this Agreement. All subsequent contact with the Client relating to the Services will be at Customer.io’s direction. Customer.io has no obligation to enter into a transaction with any client and any ToS will be in Customer.io’s sole discretion.

3.5 Referral Fees. Subject to this Agreement, if a Registered Opportunity results in the Client’s paid subscription to the Services, Customer.io will pay Partner a referral fee as set out below and Attachment 1 (“Referral Fee”).

3.5.1 Referral Fee. Customer.io will pay to Partner a Referral Fee, calculated as the Subscription Fees multiplied by the Commission Rate. “Commission Rate” is set forth in Attachment 1 in accordance with Partner’s Program Tier. “Subscription Fees” means the Services subscription fees actually paid by the Registered Opportunity for its first 12-month subscription term following entry into the ToS, subject to any exclusions under Section 3.5.2. Partner must remain active to receive commissions past year one as described in Attachment1.

3.5.2 Exclusions. Subscription Fees exclude any separate fees for support, maintenance, overages, training, professional services or any other product or service, or any pass through costs. Subscription Fees will be reduced by any refunds, penalties, sales taxes, credits or other allowances to the Registered Opportunity.

3.6. Payment Terms. Provided Partner meets the Partner Payments Requirements outlined below, Customer.io will pay Referral Fees by the last day of each calendar quarter following the calendar quarter in which Customer.io receives the applicable Subscription Fees, based on invoiced amounts actually paid to Customer.io. Referral Fees based on Subscription Fees paid in installments will likewise be paid in installments. Amounts related to contingencies that are subject to refund will be held back until the contingencies are satisfied for both GAAP revenue recognition and legal requirements.

3.6.1 Partner Payment Requirements. Customer.io utilizes a procure-to-pay platform for payments of Referral Fees to Partner. To receive payment of Referral Fees, Partner must provide to Customer.io the following within ninety (90) days of acceptance of this Agreement:

• W-9 (US Partners) or W-8 (International Partners) IRS form reflecting the name of the Partner to this Agreement.
• Valid Bank Letter reflecting the name of the Partner to this Agreement
  • For US Partners, Customer.io will remit payment via ACH
  • For International Partners, Customer.io will remit payment via Wire Transfer
• Valid Billing Email Address
  • This email address will be used to (i) send Partner an invitation to Customer.io’s elected procure-to-pay platform and (ii) send billing communication and/or documentation

3.7. No Other Amounts. Partner is not owed any amounts other than Referral Fees. Notwithstanding anything else, Referral Fees apply only for Registered Opportunities for which Partner has complied with this Agreement and not any other Partner-identified leads or opportunities, even if resulting in a sale.

4. Marketing.

4.1 Use of Brand Elements. ****During the Term, subject to this Agreement, each party grants the other party the right to use and display its Brand Elements solely to identify the parties’ relationship under this Agreement and for mutually agreed marketing activities. Rights granted in this Agreement are non-exclusive and (except as set out in this Agreement) non-sublicensable and non-transferable.

4.2 Approvals and Usage Limits. Use of a party’s Brand Elements is subject to its prior approval and any usage guidelines it provides in writing. After initial approval, substantially similar uses do not require subsequent approval. In addition, any press release or other public announcement relating to this Agreement must be approved in writing by each party in advance. Partner hereby approves Customer.io’s use of Partner’s Brand Elements to promote Partner’s participation in the Program. Each party will promptly cease any use of the other party’s Brand Elements upon request.

4.3 No Disparagement. Partner will not disparage, defame, libel, or slander Customer.io or the Services in any manner likely to be harmful to Customer.io or its business reputations and will promote the Services in a balanced and equitable manner compared to any Competing Services.

5. Intellectual Property Rights.

5.1 Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Customer.io’s use rights in this Agreement, Partner retains all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use). Except for Partner’s use rights in this Agreement, Customer.io and its licensors retain all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use), the Services and any related Customer.io technology, templates, formats, know-how, documentation, and dashboards, including any modifications or improvements to these items made by Customer.io.

5.2 Feedback. If either party provides the other party with feedback about the other party’s offerings, the recipient may use the feedback without restriction and retains all rights to such. This is not a license under the feedback provider’s patent rights.

6. No Fees or Expenses. Except as expressly set out in this Agreement, there are no fees, revenue share or other amounts due from either party to the other under this Agreement. Each party is solely responsible for its expenses and costs of performing under this Agreement.

7. Term of Agreement.

7.1 Term. This Agreement will have an initial term of 12 months and will renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current term ends (the “Term”).

7.2 Termination. Either party may terminate this Agreement for no reason or any reason upon 30 days’ notice to the other party. Either party may also terminate this Agreement if the other party fails to cure a material breach of this Agreement within 30 days after notice of such breach. Customer.io may terminate this Agreement effective immediately upon notice if it ceases to offer the Program or if it determines that termination is necessary to comply with laws or to avoid liability or harm to its services, reputation or users.

7.3 Effect of Termination. Upon any expiration or termination of this Agreement, (a) all licenses granted under this Agreement will terminate, (b) each party will cease using the other party’s Brand Elements under Section 4 (Marketing) (subject to a reasonable take-down period) and Partner will cease using the Services under Section 2 (Partner Use of Services), and (c) each party will delete any Confidential Information of the other party and if requested certify such deletion. Neither party will have any liability arising solely from a permitted termination of this Agreement. Upon termination of this Agreement, Customer.io will pay to Partner any Referral Fees earned prior to termination.

7.4 Survival. These Sections survive termination or expiration of this Agreement: 4.2 (Approvals and Usage Limits), 6 (Intellectual Property Rights), 6.3 (Effect of Termination), 7.4 (Survival), 8.3 (Disclaimer of Warranties), 9 (Indemnification), 10 (Confidentiality), 11 (Limitation of Liability), 12 (General), 13 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

8. Conduct and Warranties.

8.1 Conduct. In performing this Agreement, neither party will (a) hold itself out as a reseller or distributor of the other party’s services, (b) engage in any misleading or deceptive conduct detrimental to the other party or (c) make any representations, warranties or commitments on behalf of the other party or regarding the other party’s services.

8.2 Warranties. Each party represents and warrants to the other that (a) it has the required power and authority to enter into and perform its obligations in this Agreement, (b) its acceptance and performance of this Agreement will not violate any other agreement to which it is a party, and (c) it will comply with all applicable laws in its performance of this Agreement, including Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of Anti-Corruption Laws.

8.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, CUSTOMER.IO PROVIDES THE SERVICES, ITS BRAND ELEMENTS AND ALL OTHER MATERIALS ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

9. Indemnification. You will indemnify and hold Customer.io, its directors, officers, employees, agents, and representatives harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your access to or use of the Services, (ii) your violation of this Agreement, and (iii) any data or materials you provide (including your Brand Elements) infringing the intellectual property rights or other rights of any person or entity.

10. Confidentiality. Customer.io’s communications to you and the Services may contain Customer.io Confidential Information. Such Confidential Information may include business, technical, financial or other information that is marked confidential or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed (“Confidential Information”). For clarity, Customer.io’s pricing model and details regarding Partner’s Program Tier will be considered Confidential Information. The receiving party agrees it will not disclose any Confidential Information received from the disclosing party to any third party without the disclosing party’s prior written consent. Receiving party will not use disclosing party’s Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. Confidential Information does not include information that is independently developed, was rightfully given to receiving party by a third party without confidentiality obligation, or that becomes public through no fault of receiving party. Receiving party may disclose Confidential information when compelled to do so by law provided that receiving party shall provide reasonable prior notice to disclosing party, unless a court orders that disclosing party should not receive notice. Unless otherwise required by applicable law, within 60 days of the termination of this Agreement for any reason, receiving party must: (i) cease the use of all Confidential Information; (ii) delete, and upon request certify that it has deleted, all documents and other materials in its possession or control containing, recording, or constituting Confidential Information.

11. Limitation of Liability. EXCEPT FOR DAMAGES AND LIABILITIES ARISING FROM: (a) A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY), (b) A PARTY’S VIOLATION OF APPLICABLE LAWS; (c) A PARTY’S INDEMNIFICATION OBLIGATIONS, (d) THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY, OR (e) PARTNER’S BREACH OF SECTION 2.2 (NO PRODUCTION USE OR REAL DATA), IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE TO THE OTHER FOR: (i) ANY INDIRECT, INCIDENTAL PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, OR OTHER INTANGIBLES, ERRORS OR OMISSIONS. CUSTOMER.IO’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT PAID BY CUSTOMER.IO TO YOU, IF ANY, UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE,OR (B) $100.00 US DOLLARS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

12. General.

12.1 Assignment. This Agreement is not assignable, transferable, or sublicensable by you except with Customer.io’s prior written consent. Customer.io may transfer, assign or delegate this Agreement and any or all of its rights and obligations without consent.

12.2 Affiliates and Contractors. Each party may use its affiliates and contractors to exercise its rights and fulfill its obligations, but remains responsible for their compliance with this Agreement.

12.3 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled by the state and federal courts located in Multnomah County, Oregon. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.

12.4 Notices. Notices, approvals and consents under this Agreement must be in writing. If to Customer.io, notices must be provided to: Peaberry Software, Inc., Attn: Legal, 9450 SW Gemini Dr., Suite 43920, Beaverton, Oregon 97008-7105. If to Partner, Customer.io may provide notice to Partner’s email address on file or through the Partner Portal. Either party may update its address with notice to the other party.

12.5 Entire Agreement. This Agreement (including the Privacy Policy and the ToS are the complete and exclusive statement of the mutual understanding of the parties related to the subject matter hereof, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority to bind Customer.io in any respect whatsoever.

12.6 Waivers and Severability. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.7 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

12.8 Relationship of the Parties. The parties are independent contractors, not agents, joint venturers or partners, despite use of the term “Partner”. Except as set out in Section 4.3 (No Disparagement), this Agreement does not limit either party from entering into any partner, customer, referral, resale or other agreement with any party during or after the Term. Nothing limits Customer.io in managing its relationships with Customers or restricts Customer.io from continuing its offerings in its marketspace.

12.9 Export. Partner agrees to comply with all relevant U.S. and foreign export and import laws in using the Services. Partner (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

13. Definitions.

“Anti-Corruption Laws” means all applicable anti-bribery and anti-corruption laws and regulations, including the United States Foreign Corrupt Practices Act, U.K. Bribery Act 2010, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

“Brand Elements” means the trademarks, service marks, names, logos, images, collateral or similar materials provided by a party for use under this Agreement.

“Competing Service” means any service offering similar functionality to the Services, including any service offering Client data infrastructure, data integration or data governance services.

“Partner Portal” means Customer.io’s Partner Portal, currently located at https://customerio.kiflo.com/signin.

“Services” means Customer.io’s automated messaging and analytics technology (including any data or content available through such technology), and any other services provided by Customer.io.

Attachment 1 – Tiering System / Commission Rate

Summary: Partner has the ability to move up through our tiering system to obtain access to more benefits and higher Commission Rates. Below are our Program Tiers and associated benefits and qualification requirements.

Partner in Training

Partners in Training are new partners who have not completed training but have signed up and show commitment to moving forward. Partners in training have access to agency certification content and Channel Account Management support.

Certified Partner

Qualifications:

• Completed onboarding and training as described below; and
• Meets the following qualification for Partner Program:

Partner Agreement Requirements & Commissions:
To continue receiving commissions past the first year, Partner must remain an Active Partner (defined below) within the Customer.io Partner Program.

Definitions:

Closed-won Opportunity: A lead referred by Partner that becomes a paying customer of Customer.io.

Commission Eligibility: Partner must remain an “Active Partner” within the program to continue receiving commissions after the first year.

Active Partner: A Partner who has referred at least one Closed-won Opportunity per year (measured from the Effective Date of the Agreement and annually thereafter).

Closed-won Revenue: Means the net annual recurring revenue associated with a Closed-won Opportunity (not including pass through costs, implementation, professional services, support, or any non-recurring revenue associated with such Closed-won Opportunity).

Closed-won Revenue Threshold: Means the total Closed-won Revenue from all Partner’s Closed-won Opportunity necessary to achieve certified, gold, or platinum partner status, as indicated in the table below.

Commission Payable Period: Means each 12-month period of the Closed-won Opportunity for which Partner is eligible for a Commission with respect to such Closed-won Opportunity, according to Partner’s status as a certified, gold or platinum partner.