TalentHR

Last updated: 08 January 2025

PLEASE READ THESE AFFILIATE PARTNER TERMS AND CONDITIONS (“Agreement”) CAREFULLY BEFORE MARKETING AND PROMOTING THE SERVICES OFFERED BY EPIGNOSIS LLC (“EPIGNOSIS”, AS DEFINED BELOW). BY CHECKING THE “I ACCEPT” BOX, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ORGANIZATION, COMPANY, OR ENTITY FOR WHICH YOU ACT (“Affiliate Partner” or “you”) AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND AFFILIATE PARTNER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT, AND YOU WILL NOT HAVE ANY RIGHT TO MARKET AND PROMOTE THE SERVICES OFFERED BY EPIGNOSIS ACCORDING TO HEREIN TERMS. REGISTRATION BY “BOTS” OR OTHER AUTOMATED METHODS ARE NOT PERMITTED. THE ACCEPTANCE OF EPIGNOSIS IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THIS AGREEMENT IS CONSIDERED AN OFFER BY EPIGNOSIS, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT.

AGREEMENT DEFINITIONS

In this Agreement, the following terms shall have the respective meaning specified below (unless the context clearly states otherwise):

“Affiliate Partner” means an entity that represents, promotes, markets, and makes introductions of the EPIGNOSIS Services (as defined below) to potential unaffiliated third-party Customers, subject to the terms and conditions of this Agreement.

“Customer” means an unaffiliated individual and/or entity that will use (for internal business purposes and not for resale) the Services subject to the herein terms.

“Data Processing Addendum” or “DPA” means a data processing agreement compliant to requirements of Data Protection Laws and Regulations (including GDPR, UK GDPR, DPF and its UK Extension, as well as CCPA) entered into between EPIGNOSIS and Customer as an integral part of the Customer Services Agreement (as set out at: https://www.talenthr.io/assets/docs/dpa.pdf). It is explicitly agreed, that with respect to the DPA, the term EPIGNOSIS shall also include its affiliate entities, as defined therein.

“Data Protection Laws and Regulations” has the meaning ascribed to it in the DPA.

“Documentation” means the EPIGNOSIS manuals, publications, and other materials that accompany the Services, as well as updates to such materials.

“Commission” means the percentage of the EPIGNOSIS Services sales revenue due to Affiliate Partner, for sales generated as a result of Affiliate Partner induced Services Referral.

“EPIGNOSIS” or “we” means Epignosis LLC, a U.S.A.-based company, having its registered office at 1209 Orange Street, City of Wilmington, Delaware, DE 19801, U.S.A.

“Intellectual Property Rights” shall mean all patents, designs, copyrights, trademarks, trade secrets, source codes, software, know-how, goodwill, and all other categories of industrial and intellectual property rights, whether registered or not, throughout the world.

“Marketing Materials” means any promotional materials, product data sheets, advertising and press releases that EPIGNOSIS may supply to the Affiliate Partner from time to time.

“Net Collected Subscription revenue” means the subscription fees actually collected and received by EPIGNOSIS from a Referred Customer on an invoice for the Services, minus chargebacks (and associated fees), credits, and refunds provided to such Referred Customer. Any invoices short paid shall not be included in the calculation of Net Collected Subscription Revenue. For avoidance of doubt, the Net Collected Subscription Revenue relates only to the fees actually received by EPIGNOSIS from the Referred Customer based on invoice for its Services and shall not relate to any other revenue source and/or other products and/or services provided by EPIGNOSIS.

Notwithstanding anything to the contrary, Net Collected Subscription revenue shall not be deemed to include any revenue collected by Epignosis from any Referred Customer, to the extent that such revenue arises from: (a) the first paid subscription to the Services purchased by the first Referred Customer introduced by Affiliate Partner to EPIGNOSIS under this Agreement; and (b) any subscription upgrade that occurs after the commencement the relevant subscription term.

“Personal Data” has the meaning ascribed to it in the DPA.

“Price List” means the most current version of EPIGNOSIS’s published Services Price List, as maybe revised by EPIGNOSIS from time to time upon sixty (60) days prior written notification. Price List will be found at: https://www.talenthr.io/pricing. Affiliate Partner is encouraged to check EPIGNOSIS’s website periodically for current pricing information. Prices and Services fees are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future. EPIGNOSIS may change the fees for any feature of the Services, including additional fees or charges.

“Referred Customer” means a customer originally referred to EPIGNOSIS by Affiliate Partner, that (a) was not pre-existing customer of the Services, (b) has registered as a new customer of EPIGNOSIS within 60 days after receiving a referral from Affiliate Partner, using Affiliate Partner’s unique referral URL, (c) has been accepted as a customer by EPIGNOSIS, and (d) has engaged into an applicable Services Software as a Service Agreement with EPIGNOSIS or accepted EPIGNOSIS’ SaaS Terms and Conditions.

“Services” means the hosted internet-accessible human resources management system, under the name TalentHR, that is made available by EPIGNOSIS as SaaS on a subscription term basis, over a designated network login link, including any offline components.

“Software” means the code version of the TalentHR Services and/or any other EPIGNOSIS computer software application to which Customer is provided access (e.g., downloadable source or object code form) as part of the Services, including any updates or new versions.

“SaaS Terms and Conditions” means EPIGNOSIS’ Terms and Conditions of the subscription Services, as set out at https://www.talenthr.io/terms/ as modified from time to time.

“Trademarks” means the trademarks, names, and logos of EPIGNOSIS, and whether used individually or collectively, and whether registered or unregistered.

“Users” and/or “Authorized Users” and/or “End Users” means individuals authorized by Customers to access and use the Services, via appropriate purchased term-based subscriptions and have been provided with login user identifications and passwords by Customer. Users may include Customer employees, contractors, agents, or any other third-party individual which Customer transacts business with.

Now therefore in consideration of promises, mutual covenants herein contained, the parties agree as follows:

ARTICLE 1 - GRANT

Subject to Affiliate Partner’s compliance with the terms and conditions of this Agreement, EPIGNOSIS herby grants to the Affiliate Partner a non-transferable, non-exclusive, non-sublicensable right to actively market and promote the EPIGNOSIS Services, directly or indirectly, to potential Customers. During the Term of this agreement, the Affiliate Partner will make Introductions to potential clients for purposes of promoting the Services to such potential Customers. Affiliate Partner accepts to actively promote, solicit orders, market, and introduce the Services directly -or indirectly- to potential Customers.

The grant is subject to the following:

• Affiliate Partner acknowledges that each Referred Customer, prior to initial use of the Services, will be required to enter into the DPA, accept and conform with EPIGNOSIS’ Terms and Conditions of the Services, as modified from time to time. Any Affiliate Partner recommendations inconsistent with the intention of the parties as vendor and representative/consultant as expressed in this Agreement, will be deemed not to have been offered by EPIGNOSIS as part of such Terms and Conditions. Any updates to such Terms and Conditions will be made in good faith.
• Affiliate Partner may not object to any decisions made by EPIGNOSIS regarding the terms or conditions of a particular relationship entered into after an Introduction.
• EPIGNOSIS will have sole discretion to enter into or not enter into an arrangement with a Referred Customer.
• EPIGNOSIS will meet or conference and negotiate with a Referred Customer, after an Introduction with respect to a potential relationship, on Referred Customer suggested terms applicable to such potential relationship.
• Affiliate Partner shall not make any representations to potential Customers with respect to the Services that are inconsistent with the SaaS Terms and Conditions, EPIGNOSIS’ marketing material and/or other literature provided by EPIGNOSIS.

Affiliate Partner is not authorized to enter into contracts or agreements on behalf of EPIGNOSIS or to otherwise create obligations to third parties.

Agreement is not exclusive to Affiliate Partner and EPIGNOSIS reserves the unrestricted right to sell, license, market and distribute the Services or to grant to others pertinent rights thereof.

ARTICLE 2 - AFFILIATE PARTNER

Affiliate Partner will promote, market, and introduce the Services to potential Customers in accordance with this Agreement and earn Commission for Referred Customers as described herein.

In the event of breach of this Agreement by the Affiliate Partner, EPIGNOSIS reserves the right to terminate Affiliate Partner’s right to promote, market and introduce the Services. Unless sooner terminated under the provisions of the herein Agreement, EPIGNOSIS will maintain Affiliate Partner’s portal – via which Services will be marketed, promoted, and introduced – for the term of this Agreement (the “Affiliate Portal”).

Registration. EPIGNOSIS will provide Affiliate Partner with access to an Affiliate Portal and a unique referral URL, which will enable Affiliate Partner to refer potential Customers to EPIGNOSIS. Affiliate Partner should register through EPIGNOSIS PRM tool named Tolt (https://tolt.io/).

In respect with each sale originated from a Referred Customer, Affiliate Partner will be entitled to a recurring commission, as specified in Article 5 hereof. EPIGNOSIS reserves the right to change the process described herein upon notice to Affiliate Partner.

ARTICLE 3 - RESTRICTIONS

Affiliate Partner shall not:

• Modify, alter, adapt, copy, translate, perform, and display or create derivative works based on the Software, the TalentHR application, or the Services, or proceed to any action that may be properly characterized as copyright infringement by the applicable law.
• Decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code for the TalentHR application.
• Merge or bundle the Software with other software.
• Sell, license, lease, publish, display (publicly or otherwise), distribute or otherwise transfer or by any means make available –either directly or via another reseller- to a third party the Services.
• Use spam e-mail or any other form of internet abuse to promote Services.
• Use distinctive marks of EPIGNOSIS or the Services otherwise than expressly agreed hereunder, or other graphic or textual images related to EPIGNOSIS or the Services, unless such graphic or textual images have been explicitly provided to Affiliate Partner for marketing purposes.

ARTICLE 4 - AFFILIATE PARTNER’S OBLIGATIONS, REPRESENTATIONS AND WARRANTIES

Affiliate Partner shall use its best efforts to actively promote and facilitate the Services and maintain a fully qualified organization in order to fulfill its responsibilities.

Affiliate Partner will fill in and submit to EPIGNOSIS any documents and forms requested for invoicing and/or tax purposes.

Upon execution of this Agreement, Affiliate Partner must complete and submit to EPIGNOSIS:

• A W9 form, if Affiliate Partner is an individual who is a U.S. citizen or U.S. resident alien, a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States
• A W-8 form if Affiliate Partner is (a) a foreign individual and non-resident alien (W-8BEN form), or (b) a foreign entity, if it receives income from US sources.

Affiliate Partner shall demonstrate, upon request by EPIGNOSIS, any relevant information accompanying transactions or negotiations made between the Affiliate Partner and Customers, which it would be reasonable to provide.

The Affiliate Partner will not:

• Pledge the credit of the EPIGNOSIS, enter into any compromise with Customers or otherwise incur any obligation on the EPIGNOSIS’ behalf except with the EPIGNOSIS’ explicit written consent.
• Make any statement or give any warranty or guarantee in respect of the Services without EPIGNOSIS’ prior written consent.
• Provide false or misleading representations or warranties to Customers

Affiliate Partner’s representatives maybe required from time to time to attend a training session with EPIGNOSIS’ support team for every new release and upcoming features.

Affiliate Partner may not appoint any resellers, agents, dealers, distributors or other third parties to distribute the Services.

Affiliate Partner will bear all costs and expenses incurred by it with respect to the performance of its obligations under this Agreement.

Affiliate Partner represents, warrants and covenants that Affiliate Partner (i) possess full power and authority to enter into this Agreement, (ii) has the proper skill, training and background to perform the services in a competent and professional manner; (iii) will use due diligence in safeguarding the interests of EPIGNOSIS in accordance with this Agreement and any policies and procedures provided to Affiliate Partner by EPIGNOSIS; and (iv) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency, and will not violate or contravene the terms of any of EPIGNOSIS’s contracts.

ARTICLE 5 - COMMISSION

In consideration for the Affiliate Partner Services under this Agreement, and subject to the terms and conditions, during the term of this Agreement EPIGNOSIS shall pay an Affiliate Partner commission, calculated as a 20% percentage amount on the Net Collected Subscription Revenue for each Referred Customer according to Price List.

Referred Customers must be new visitors and must register by completing unique account and billing information. EPIGNOSIS reserves the right, at its sole discretion, to reject orders that do not comply with its commercial requirements.

The commission shall be considered complete consideration for all Referrals made during the Term.

Payment of the commission to Affiliate Partner shall be via PayPal. Commissions will be initiated by EPIGNOSIS to Affiliate Partner provided that aggregate Commission amount exceeds $500,00 (Commission trigger amount). At the end of the calendar month in which the commission trigger amount is reached, EPIGNOSIS will contact Affiliate Partner to schedule payment of the commission amount, which will be performed within thirty (30) days from issuance of pertinent invoice by Affiliate Partner. In no event may EPIGNOSIS perform more than one (1) Commission payout to Affiliate Partner per each calendar month.

Affiliate Partner shall be responsible for any and all income and other taxes applicable to it in connection with its receipt of Compensation pursuant hereto and as an independent contractor of the EPIGNOSIS.

In the event of a chargeback (and associated fees), credits and refunds provided to a Referred Customer, Affiliate Partner acknowledges and agrees that EPIGNOSIS may deduct the applicable portion of amounts from Affiliate Partner’s subsequent Commission payments. In the event no further Commission payments are due to Affiliate Partner, then Affiliate Partner shall promptly submit payment to EPIGNOSIS for any chargebacks (and associated fees), credits and refunds upon EPIGNOSIS’ request. Notwithstanding anything herein to the contrary, Commission shall be “earned” only if (a) Affiliate Partner complies with the process described herein, (b) EPIGNOSIS receives full payment from such Referred Customer for its Services; and (c) Affiliate Partner is not in breach of this Agreement.

EPIGNOSIS will not be responsible for any expenses of Affiliate Partner in the course of the performance of its obligations hereunder unless such expenses have been previously explicitly approved in writing by the EPIGNOSIS.

Commission Payment. Affiliate Partner will need a PayPal account to receive commission payments from EPIGNOSIS. EPIGNOSIS is not responsible for any third-party fees charged by PayPal.

Payment of commission fees will be made based on the information made available by Affiliate Partner to EPIGNOSIS through the Affiliate Portal. Affiliate Partner is responsible to maintain accurate tax and payment details. Epignosis reserves the right to unilaterally amend the commission payment terms at any time with immediate effect, upon written notice.

Payment of commission fees will be made based on the information made available by Affiliate Partner to EPIGNOSIS. Affiliate Partner is responsible to maintain accurate tax and payment details. Epignosis reserves the right to unilaterally amend the commission payment terms at any time with immediate effect, upon written notice.

ARTICLE 6 - OWNERSHIP OF INTELLECTUAL PROPERTY

EPIGNOSIS and its licensors (if any) retain all Intellectual Property Rights to the Services and the Software, with all its components, including the source code, documentation, appearance, structure, organization, its preparatory design material, and all other elements to the Services. Affiliate Partner acknowledges that EPIGNOSIS is the exclusive owner and owns all proprietary right of the Software and the Services, the Affiliate Portal, and of all intellectual property rights associated therewith, including software and copyrights. Nothing in this Agreement grants Affiliate Partner any ownership right in the TalentHR application or the Services. Affiliate Partner may not transfer for value or use the Services for any commercial purpose other than that described in this Agreement, which is to say, for promotion, introduction and marketing the EPIGNOSIS’ Services to Customers and their End Users as a hosted service. EPIGNOSIS reserves all rights not expressly granted to Affiliate Partner under this agreement.

Affiliate Partner shall not use Services, the Documentation (user and technical), the Trade Marks or the marketing materials or Software except as permitted under this Agreement. Affiliate Partner shall report promptly to EPIGNOSIS any third-party claim relating to the Intellectual Property Rights in the Services or any associated documentation, or in the Trade Marks that comes to the Affiliate Partner’s attention, and co-operate with EPIGNOSIS in any enforcement or other protective action taken by EPIGNOSIS to protect or defend its Intellectual Property Rights of any such claim.

During the term of this Agreement, EPIGNOSIS hereby grants Affiliate Partner a non-transferable, non-exclusive, limited license to use EPIGNOSIS’ (a) name, logos and/or trademarks (collectively, the “Trademarks”) and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials provided by EPIGNOSIS (collectively, the “Materials”) in accordance with this Agreement solely in relation to the performance of the referral services described herein. Affiliate Partner’s use of such Trademarks and Materials shall be in accordance with EPIGNOSIS’ policies and procedures established from time to time. Affiliate Partner shall not (i) attach any other trademark, logo and/or trade designation to the Services unless expressly agreed in writing by EPIGNOSIS and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing EPIGNOSIS’ right, title and interest in the Trademarks and/or Materials. EPIGNOSIS has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials.

Affiliate Partner acknowledges that Affiliate Partner’s use of the Trademarks and/or Materials shall not create any right, title and interest, in or to the Trademarks and/or Materials and all such uses inure to the benefit of EPIGNOSIS. EPIGNOSIS reserves the right at any time to review Affiliate Partner’s use of the Trademarks and/or Materials to determine if such use is in compliance with this Agreement.

In the event EPIGNOSIS desires to include Affiliate Partner’s information on its referral Affiliate Partner website at any time during the term of this Agreement, Affiliate Partner hereby grants to EPIGNOSIS a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by Affiliate Partner on such referral Affiliate Partner website.

ARTICLE 7 - TRADEMARKS

Affiliate Partner acknowledges that EPIGNOSIS holds all right, title and interest to the trademarks, service marks, or trade names owned, used or claimed, registered or not registered, now or in the future by EPIGNOSIS (“Trademarks”).

Affiliate Partner shall be permitted to use such Trademarks as are explicitly designated by EPIGNOSIS from time to time in writing for all proper purposes in the promotion, introduction, and marketing of EPIGNOSIS Services and the performance of the Affiliate Partner’s duties hereunder only for so long as this Agreement is in effect provided that:

Affiliate Partner’s use of any such Trademarks shall be in accordance with EPIGNOSIS’ written instructions and specific policies in effect, including, but not limited, to trademark usage and advertising policies.

The Affiliate Partner includes an acknowledgement of the proprietary rights of EPIGNOSIS and will not register any intellectual property rights relating to the TalentHR application and the Services.

ARTICLE 8 - PERSONAL DATA

8.1. Each Party may use Personal Data, made accessible to it by the other Party or by a (Referred) Customer, as necessary to comply with this Agreement. Any use by either Party of Personal Data exchanged or made known or generated in the course of this Agreement must be in accordance with applicable data privacy laws, rules, and regulations and any applicable privacy policies. Affiliate Partner hereby acknowledges and agrees that it should register through EPIGNOSIS’ PRM tool, a processor named Tolt (https://tolt.io/privacy-policy), which shall process the necessary information (email, purchase date, plan and price) for the purpose of providing EPIGNOSIS Affiliate Program management services. Affiliate Partner hereby also acknowledges and accepts EPIGNOSIS’s Privacy Policy (available at https://www.epignosishq.com/privacy-policy/).

8.2. It is explicitly agreed that Affiliate Partner shall have no access to Customers’ Accounts.

8.3. Affiliate Partner agrees that, in the event of new Data Protection Laws and Regulations, it will co-operate with EPIGNOSIS to ensure Customer’s strict compliance with such new Data Protection Laws and Regulations, including Customer’s signing a revised data processing agreement with EPIGNOSIS.

ARTICLE 9 - CONFIDENTIAL INFORMATION

Affiliate Partner understands that EPIGNOSIS has disclosed or may disclose information that is confidential or proprietary in nature, whether explicitly designated as such or not, relating to EPIGNOSIS’ business, which to the extent previously, presently, or subsequently obtained by Affiliate Partner is hereinafter referred to as “Confidential Information”. Confidential Information may include, but is not limited to, the following: (a) trade secrets, inventions (whether patentable or not), discoveries and improvements; (b) concepts, know-how, ideas, techniques, processes, methodologies, testing procedures, design and functional specifications, analysis and performance information, user documentation, internal documentation and the features, mode of operation and other details of products and services; (c) algorithms, formulas, specifications, modules, scripts, data, databases, software design and architecture, computer programs, source code, object code and other computer code; (d) technical or other representations, documentation, diagrams, schematics and flow charts; (e) names and expertise of directors, officers, employees and consultants; (f) names of customers, suppliers and strategic partners; and (g) technical, business, financial, marketing, customer, supplier and product development plans, schedules, forecasts, strategies and materials.

The Affiliate Partner agrees: (a) to hold Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information (including, without limitation, all precautions it employs with respect to its most confidential materials); (b) not to divulge any Confidential Information or any information derived there from to any third party, including, but not limited to, any affiliated entity (even if owned or controlled by the Affiliate Partner ); (c) to only use Confidential Information in its performance of the obligations under this Agreement; (d) not to alter or delete any proprietary legends or markings on any Confidential Information; (e) not to copy any Confidential Information without first obtaining EPIGNOSIS’ written consent; and (f) not to decompile, disassemble, reverse engineer or otherwise attempt to derive the composition or underlying information, structure or ideas of any Confidential Information that may be provided in object code form. The Affiliate Partner agrees not to circulate Confidential Information within its organization except to those employees or agents of the Affiliate Partner who have a legitimate “need to know” such Confidential Information and who are obligated by appropriate written agreements to keep such Confidential Information confidential in a manner no less restrictive than set forth in this Agreement. The Affiliate Partner acknowledges and agrees that it is responsible and liable for such person’s compliance with such confidentiality obligations.

The Affiliate Partner understands and agrees that all Confidential Information shall remain the sole property of EPIGNOSIS including, without limitation, all Intellectual Property, and proprietary Rights (defined above) therein and thereto, and the Affiliate Partner hereby assigns to EPIGNOSIS any ownership rights the Affiliate Partner may acquire in the Confidential Information.

ARTICLE 9A - EXPORT CONTROLS

Affiliate Partner acknowledges that the Services may be subject to U.S. and international export control laws and regulations. Affiliate Partner agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Affiliate Partner agrees not to—directly or indirectly— export, reexport, transfer, or divert the Services to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Additionally, Affiliate Partner warrants that it is (1) not located in Cuba, Iran, North Korea or Syria or the Crimea Region of Ukraine or DNR and LNR regions of Ukraine, and (2) not a denied party as specified in the regulations listed above. This export control clause shall survive termination or cancellation of this Agreement.

ARTICLE 10 - WARRANTY DISCLAIMER

EPIGNOSIS makes no representations or warranties or conditions of any kind concerning the Service, the products or their use, accuracy, function and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, EPIGNOSIS and third parties disclaim all warranties, express, implied, or statutory, regarding the services, the software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the TalentHR application, the Affiliate Portal and the Services shall be deemed a warranty or guarantee for any purpose or give rise to any EPIGNOSIS’ liability of third parties whatsoever. Affiliate Partner acknowledges that it relied on no warranties or statements other than as may be set forth herein.

Affiliate Partner shall be solely responsible for any warranties for the Services given by Affiliate Partner.

ARTICLE 11 - LIMITATION OF LIABILITY

Except as provided in the indemnity section herein below, EPIGNOSIS shall not be liable to Affiliate Partner or any third party for any incidental, indirect, exemplary, special or consequential damages, under any circumstances, including, but not limited to, lost profits, revenue or savings, loss of goodwill, or the loss of use of any data, even if EPIGNOSIS had been advised of, knew, or should have known, of the possibility thereof.

Under no circumstances shall EPIGNOSIS’ aggregate cumulative liability hereunder, whether in contract, tort, or otherwise, exceed the total amount of commission actually paid by Affiliate Partner under this Agreement in the twelve (12) month period preceding the event or circumstance giving rise to claim. Affiliate Partner acknowledges that the commission paid reflects the allocation of risk set forth in this agreement and that EPIGNOSIS would not enter into this agreement without these limitations on its liability.

ARTICLE 12 - INDEMNIFICATION

EPIGNOSIS shall defend, indemnify and hold Affiliate Partner harmless, from and against any and all claims of infringement of a US patent, copyright or trademark asserted against Affiliate Partner by a third party to the extent it alleges that the EPIGNOSIS’ Services and Trademarks use, as authorized in this Agreement, constitutes a direct infringement of US copyright or trade secret of any third party and (ii) pay, subject to the limitations set forth in Section 11, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by EPIGNOSIS; provided that Affiliate Partner provides EPIGNOSIS (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by EPIGNOSIS in connection with the defense or settlement of, any such claim. If EPIGNOSIS’ Services distribution is enjoined due to the type of infringement specified above, or if required by settlement, EPIGNOSIS may: a) substitute Services with similar, b) make such necessary modifications/replacements to Services to permit non infringing distribution by Affiliate Partner, c) procure the right to continue distributing, d) withdraw Services and terminate any EULA with no further obligation.

However, EPIGNOSIS shall have no liability whatsoever for any claim based on or arising out of: (i) distribution of Services in a manner otherwise than as contemplated by this Agreement; or (ii) unauthorized Services distribution.

Affiliate Partner will indemnify, defend and hold harmless EPIGNOSIS, its officers, associates, employees, contractors and agents from and against any and all claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively “Claim(s)”) arising out of or relating to (a) any negligent act and/or omission of Affiliate Partner relating to Affiliate Partner activities in connection with this Agreement; (b) any misrepresentation by Affiliate Partner related to EPIGNOSIS, its Services and/or its other products and/or services(s); (c) Affiliate Partner’s breach of this Agreement; (d) Affiliate Partner’s gross negligence and/or wilful acts and/or omissions; (e) any failure to comply with any applicable law, rule, regulation, order of any governmental (including any regulatory or quasi-regulatory) agency or contract;. Affiliate Partner will be solely liable for any claims, warranties and/or representations made by Affiliate Partner that differ from the warranties expressly provided by EPIGNOSIS. Affiliate Partner will have the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim; however, EPIGNOSIS may reasonably participate in such defense at its sole expense.

ARTICLE 13 - TERM AND TERMINATION

Term. The term of this Agreement is twelve (12) months and will automatically continue for successive one (1) year terms, unless either party provides written notice of its intentions to not renew the Agreement, no later than thirty (30) days prior to the end of the initial or renewal term.

13.1 Termination for Cause. Either party shall have the right at any time, by giving notice, to terminate this Agreement without liability to the other on the occurrence of any of the following events: (a) if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within thirty (30) days after receipt of notice to rectify served on the defaulting party by the other party; (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt; or (c) if the other party engages in illegal activities.

13.2 Termination for Convenience. Either party may terminate this Agreement any time without cause upon 90 days’ prior written notice.

13.3 Effect of Termination. Upon expiration or termination of this Agreement:

• The appointment and license grant under article 1 provided to Affiliate Partner will terminate
• Affiliate Partner shall immediately cease all activities related in any way to this Agreement, including, but not limited to, the marketing, representing, and promoting of the Services; and
• Affiliate Partner will cease to make any reference to EPIGNOSIS or the Services and will cease using the Trade Marks (including but not limited in its promotional materials) and will cease holding itself out as an Affiliate Partner of EPIGNOSIS or of the Services;
• Affiliate Partner will promptly return to EPIGNOSIS or delete or destroy, at EPIGNOSIS’ option, all of EPIGNOSIS Confidential Information, marketing material, user manuals, source codes, Software demo version, technical documentation, etc. that is has received pursuant to this Agreement;
• Affiliate Partner will immediately remove from its website all content that refers to EPIGNOSIS or the Services;
• Each Party will certify to the other in writing within 30 days of such termination or expiration that such Party (as receiving Party) has returned or permanently destroyed or deleted all Confidential Information of the other Party regardless of form or medium; and
• All Customers and referred Affiliate Partners shall remain to EPIGNOSIS.

13.4 Upon termination or expiration of the Agreement, the Affiliate Partner shall have no further right to promote and introduce EPIGNOSIS’ products and Services and shall immediately discontinue such action and destroy all originals and copies, including all compilations, source codes provided, translations, documentation, and partial copies/files. The Affiliate Partner shall certify in writing within ten (10) days following the termination or expiration that it has complied with this paragraph.

Rights upon termination

Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available.

13.5 The Affiliate Partner agrees that, in the event of any termination or expiration of the Agreement, it shall have no rights to damages or indemnification of any nature, specifically including commercial severance pay, whether by way of loss or future profits, expenditures for promotion of any product, or other commitments in connection with the business and good will of the Affiliate Partner. However, neither termination nor expiration will extinguish any liability of either party arising before termination or expiration of this Agreement, including without limitation for payment due. The Affiliate Partner expressly waives any right or claim it may have under the laws of any jurisdiction to receive any compensation or reparations upon termination or expiration of this agreement by operation of law or otherwise for such termination or expiration.

13.6 Any termination of this Agreement (however it happens) will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of this Agreement, which is expressly, or by implication, intended to come into or to continue in force on or after termination.

13.7 Survival Any provision of this Agreement which by its nature is intended to survive termination or expiration of this Agreement will continue after termination or expiration of this Agreement, including (but for greater certainty in no way limited to) any provisions related to proprietary rights, confidentiality, termination, indemnification, limitation of liability, governing law and waiver.

ARTICLE 14 - NOTICES

Any notice, request, instruction, or other document to be given under this Agreement to any party hereunder by any other party hereunder shall be in writing and delivered personally, or sent by registered or certified mail, postage prepaid to Affiliate Partner’s address specified on the Affiliate Portal, or to EPIGNOSIS at 315 Montgomery Str, 9th Floor San Francisco, CA 94104 – USA (or to such other address as a party hereto may hereafter designate in writing to the other party). Email notice will be permitted by EPIGNOSIS if sent to the Affiliate Partner’s email address specified on the Affiliate Portal. Email notice will be permitted by Customer if sent to legal@epignosishq.com. Delivery as aforesaid of process or notice shall be sufficient and adequate to establish notice to the person served or notified. Any notice, request, consent, and other communication to be given by a party under this Agreement shall be in the English language.

ARTICLE 15 - RELATIONSHIP OF THE PARTIES

The parties will at all times perform their respective obligations pursuant to this agreement as independent contractors. This agreement does not create any agency, partnership, joint venture, employment, or franchise relationship. Furthermore, no labour relationship between EPIGNOSIS and the Affiliate Partner’s employees is created hereby, the Affiliate Partner shall indemnify and hold EPIGNOSIS harmless against any claim or judicial action whatsoever from any Affiliate Partner employee. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in respect whatsoever.

ARTICLE 16 - ENTIRE AGREEMENT

It is hereby declared that this Agreement constitutes the entire Agreement and contains the entire understanding between the parties hereto and with respect to the matters referenced to herein. No terms other than those expressly set out herein are deemed to be implied herein. No amendment or modification of this Agreement shall be valid and binding unless made and confirmed in writing or otherwise signed by the parties hereto.

ARTICLE 17 - SEVERABILITY

In the event of any one or more provisions of this Agreement becoming invalid or unenforceable it shall not affect any of the other provisions hereof becoming invalid and unenforceable, and such other provisions shall be deemed to remain in full force and effect.

ARTICLE 18 - WAIVER

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.

ARTICLE 19 - COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. The Annexes to this agreement constitute an integral part hereof.

ARTICLE 20 - AUTHENTIC TEXT

The English language text of this Agreement shall be the only authentic text.

ARTICLE 21 - FORCE MAJEURE

Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances, or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.

ARTICLE 22 - ASSIGNMENT

The Affiliate Partner may assign or transfer this Agreement in whole or part only with the prior written consent of EPIGNOSIS which consent shall not be unreasonably withheld or delayed. Upon written notification, EPIGNOSIS may assign or transfer this Agreement in whole or part and all or part of the payments to the extent that EPIGNOSIS’ obligations to the Affiliate Partner are not affected.

ARTICLE 23 - GOVERNING LAW, JURISDICTION

Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, Affiliate Partner consents to the personal jurisdiction and venue of the courts located in the State of Delaware. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.

ARTICLE 24 - OTHER DOCUMENTS

The following Other Documents attached hereto are incorporated and made a part of the Agreement:

• Schedule A “Trademarks”

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