Partner Referral Agreement
Terms and Conditions
- License Grant. Subject to Partner’s full compliance with this Agreement, NLOK grants to Partner a limited, revocable, non-exclusive, non-transferable right, during the Term and within the Territory, to use and distribute the Link to End Users only, as provided by NLOK, for the purpose of the End User Offer and as further described in the Partner Referral Initiative. Where NLOK determines at its sole discretion that the Link and/or Partner Referral Method has been misused in any way or distributed in any manner other than as set forth in this Agreement, NLOK shall have the right at its sole option to: (i) replace and reissue a replacement Link and/or Promo Code to Partner or require that the Partner Referral Method be rectified to NLOK’s specification and/or (ii) deactivate the Link and the associated Referral Store; and /or (iii) terminate the Agreement upon written notice; with immediate effect.
- Reservation of Rights. Partner acknowledges and agrees that (i) all right, title, and interest in the NLOK Product, the Link, the NLOK Websites and all related domain names, links, URLs and related content belong to NLOK; (ii) NLOK may modify the content and functionality of the NLOK Websites at any time in its sole discretion; and/or (iii) discontinue or modify the NLOK Product at any time in its sole discretion. NLOK will use reasonable commercial efforts to notify Partner of material changes to the NLOK Product or NLOK Websites and any Link modifications directly impacting Partner’s distribution obligations under the terms of this Agreement.
- End User Offer Process. Partner is responsible to (i) provide End Users access to the Link from a Secure Area; (ii) authorize End Users via an authentication process; (iii) ensure the Partner Referral Method is in compliance with this Agreement and the requirements and restrictions specified in the Partner Referral Initiative; and (iv) establish and explain to End Users any End User Offer requirements in accordance with applicable law.
- Use of Trademarks. Neither Party has paid any consideration for the use of the other Party’s trademarks, logos, copyrights, trade names or designations, and nothing contained in this Agreement will give either Party any interest in any of them. Each Party grants the other Party a non-exclusive, non-transferable royalty free licence to use in the Territory the Trademarks, solely as are reasonably necessary in order to advertise, promote, market and sell the NLOK Product as authorised under this Agreement. Partner will comply with NLOK’s trademark guidelines currently listed at https://www.nortonlifelock.com/us/en/legal/trademark-policies/, and all other branding guidelines as provided by NLOK from time to time. Any goodwill in either Party’s Trademarks that results from the other Party’s use shall inure solely to the benefit of the respective Party owning the Trademark. Partner will provide NLOK with samples of any marketing materials containing NLOK Trademarks. Each Party shall cease or suspend use of the other Party’s Trademarks in any marketing material without undue delay if notified in writing that the use does not comply with the respective Party’s marketing and trademark guidelines.
- Press Releases; Marketing Materials. The Parties shall not issue any: (i) press release; and/or (ii) Marketing Materials concerning the other Party or the Agreement without the other Party’s prior written approval. Partner represents and warrants that: (a) every marketing activity in relation to this Agreement is in compliance with then current industry standards and all applicable laws and (b) all e-mail messages concerning the NLOK Product shall clearly identify to the recipient that the email is being sent by Partner and not NLOK. Where the Partner Referral Method applies Partner must strictly adhere to the provisions set out in the Partner Referral Initiative. Any deviations from the stated requirements shall be deemed a material breach of the Agreement.
- DRS Reporting, Disbursement and Tracking. NLOK will within sixty (60) days after the end of the calendar quarter (“Quarter”), pay Partner an amount equal to the Revenue Share during the applicable Quarter. Revenue Share is only payable for those subscriptions which NLOK is reasonably able to Track and shall only be payable during the Term. No DRS shall be payable upon termination or expiry of the Agreement. To allow for NLOK Product returns, the final payment under this Agreement shall not be due until seventy-five (75) days after the final Quarter of the Term. To the extent that Net Revenue from the Click-Through Sales is not maintained at or above Two Thousand Dollars ($2,000.00) per Quarter, NLOK's obligation to pay the Revenue Share shall automatically not apply for that Quarter and there shall be no carryover to prior or subsequent Quarters. Revenue Share payments to Partner shall be reassessed on a Quarter by Quarter basis in accordance with this provision.
- Taxes, Tariffs, Fees. NLOK's prices and subscription and subscription renewal fees do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which NLOK may be required to pay or collect upon the sale or delivery of NLOK Products or upon collection of the sales price (the “Tax”).
- Waiver of Indirect and Consequential Damages.
- Neither Party shall be liable to the other Party for any indirect, or consequential damages; or
- the loss of goodwill or loss of reputation or wasted management and staff time or anticipated profits (whether direct, indirect or otherwise) arising from any performance or breach or termination or expiration of this Agreement, even if notice is given of the possibility of such damages.
- Notwithstanding the foregoing, nothing in this Agreement shall seek to exclude NLOK’s liability for fraudulent misrepresentation, willful misconduct, gross negligence, death, personal injury or any other liability to the extent such liability cannot be limited by the applicable law.
- Limitation of Liability. The liability of NLOK under this Agreement shall be limited to the lesser of: (i) the net revenues received by NLOK pursuant to this Agreement during the twelve (12) months prior to the event giving rise to such liability; or (ii) $50,000.
- Partner’s Acknowledgment. Partner acknowledges that Sections 8 and 9 have been included as a material inducement for NLOK to enter into this Agreement and that NLOK would not have entered into this Agreement but for the limitations of liability as set forth above.
- Confidentiality. Each Party will not disclose the terms of this Agreement contained in the applicable Partner Referral Initiative or use any of the other Party’s Confidential Information except in performance of this Agreement and shall protect the other Party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information. Each Party will provide notice to the other Party (i) immediately after learning of or suspecting a breach of any of the Confidential Information or (ii) immediately upon receiving a request to disclose any Confidential Information, unless prohibited by law. The Parties agree that any breach of this Section 11 shall entitle the respective Party to seek equitable relief such as injunction in addition to all other remedies provided by this Agreement or available at law. The parties agree that End User Information is owned by, or its primary right for use, access and disposal is given to, NLOK under applicable laws. Without prejudice to the foregoing and undisrupted use of NLOK Products by End Users, upon termination of this Agreement, the receiving Party will return to the disclosing Party or delete any Confidential Information upon written request.
- Termination. Either Party may terminate this Agreement for material breach with immediate effect if such breach is not cured within thirty (30) days after written notice of such breach. Each party may terminate this Agreement without cause upon sixty (60) days’ written notice to the other Party. In case of insolvency of either Party the Agreement ends with immediate effect. Upon any expiration or termination, the rights granted under this Agreement are immediately revoked. Each Party shall cease its use of the other Party’s Trademarks and the Links within ten (10) days of any termination at will or expiration of this Agreement and within twenty-four (24) hours for a termination for breach. Neither Party shall be liable to the other Party for damages of any kind, including indirect or consequential damages, on account of the expiration or termination of this agreement in accordance with its terms.
- Governing Law; Jurisdiction. If Partner is based in EMEA: This Agreement is governed by the laws of Ireland. Venue for any legal action will be the Irish courts, Dublin; If Partner is based in Japan: The laws of Japan. Venue for any legal action will be the Japanese courts; If Partner is based in the Asia Pacific region: The laws of Singapore. Venue for any legal action will be the courts of Singapore. The English language version of the Agreement will prevail in the event of any translations. Partner waives any right to have this Agreement officially written in the language of the applicable Territory where applicable.
- Assignment, Severability. Any assignment or delegation under this Agreement shall be subject to NLOK’s prior written approval. If any provision of this Agreement is deemed invalid by the applicable court, it will be considered deleted, unless the court can modify said provision to make it valid and enforceable. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
- Notices. Partner shall send notices, to the attention of the Legal Department, to the NLOK entity and address indicated in the Partner Referral Initiative. NLOK shall send notices to the Partner address indicated in the Partner Referral Initiative.
- Compliance with Laws. Each Party will comply with all applicable laws and regulations, including but not limited to law regarding promotions, consumer protection, privacy and personal information, intellectual property, export compliance and anticorruption laws, the Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and laws of the U.S. Department of the Treasury, Office of Foreign Assets Control; and further obtain and maintain in effect all required licenses, permits and authorizations.
- Timeframe for Legal Actions and Claims. Any legal action arising in connection with this Agreement must be filed within one (1) year of the date that such cause of action arises. All statutory limitation periods (whether arising in contract, tort or otherwise) are expressly excluded. In addition, if Partner does not claim any applicable funds within six (6) months of the end date of the applicable NLOK Quarter within which the funds are due, such funds will not be payable by NLOK in any event.
- Miscellaneous. The Parties agree that this Agreement is the result of negotiations between sophisticated parties and thus any principle of construction, legal doctrine or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement, shall not apply to the terms and conditions of this Agreement. This Agreement is the final, complete and exclusive agreement between the Parties with respect to the subject matter of the Agreement, and supersedes all previous promises, proposals, agreements, understandings, representations, communications, undertakings or implications, whether oral or written, and any other communications between the Parties in relation to such subject matter; and may not be modified except by written amendment to this Agreement. Each Party’s waiver or failure to exercise any right or to require any performance of a duty under this Agreement shall not be deemed a waiver of any further such right or duty. Neither Party is an agent of the other Party. It has no right to (i) represent or bind the other Party, (ii) assume or create any obligation or (iii) make any warranty, guarantee or representation about the other Party.
“Agreement” means these Terms and Conditions and the Partner Referral Initiative as applicable.
“App” means a mobile device application, connecting End User devices to the Link.
“Click-Through Sale” means each completed sale that is directly Trackable to End Users who complete an NLOK Product purchase transaction, when such transaction originated from the Referral Store or related Link(s), an App, Partner Referral Method, or from any other path created by NLOK specifically for Partner, including but not limited to, in-product messaging or other Tracking source. Click-Through Sale shall not include purchase transactions where the sale originates from any other source. If an End User utilizes multiple paths from different sources to reach the sales cart, then the last Trackable path to the cart shall constitute the Click-Through Sale and only the partner or source for which the last path was created shall be recognized for the completed Click-Through Sale. For purposes of Subscription Renewals, Click-Through Sale includes each Subscription Renewal that is directly Trackable to End Users of the NLOK Renewal Center who complete the purchase transaction originating from the Promo Code only, and not from any other origination point or source.
"Confidential Information" means the non-public information that is exchanged between the Parties, provided that such information is: (i) marked “confidential” or with a similar legend, (ii) disclosed in any other manner and identified as confidential at the time of disclosure by the disclosing party, or (iii) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information.
“End Date” means the date specified in the Partner Referral Initiative.
“End User(s)” means Partner’s customers/employees as applicable and in the Territory only, who in each case have been authenticated and/or confirmed eligible for the Promo Code by Partner.
“End User Experience” means the full description of how the Partner will make available the End User Offer to its End Users as specified in Section 4 of the Partner Referral Initiative.
“End User Information” means End Users’ personal information as obtained or collected by, or on behalf of, NLOK at such time that the End User acquires the NLOK Product specified in the End User Offer.
“End User Offer” means Partner's presentation to End Users of the applicable discount (if any) on the NLOK Product, either via a Link to i) the Referral Store or ii) the Partner Referral Method. This may be initiated by Partner via email, web content, flyer, an App or other directed communication to End Users and includes a description of the applicable discount (if any) on the NLOK Product.
“Launch Date” means the date on which NLOK makes the Referral Store or Partner makes the Partner Referral Method available to Partner’s End Users.
“Link” means use of a visible graphic or textual indication located within a page, web site or web page which, when selected by an End User's browser, directs the End User's internet browser connection onward to i) the Referral Store or ii) Partner Referral Method and which establishes a direct connection between the browser and the Referral Store or the Partner Referral Method.
“Marketing Material” means any marketing materials, press releases, advertisements, website content or other communication about this Agreement, the NLOK Product or the End User Offer.
“Net Revenue” shall mean and be calculated on a quarterly basis as follows: the (x) purchase price paid by End Users for NLOK Products sold through the Referral Store or the Partner Referral Method as a result of Click-Through Sales, which price is due to NLOK, less (y) returns, Taxes, and operational expenses associated with the processing and fulfillment of such NLOK Product (including credit card processing fees, costs of goods sold, costs of providing services or related external vendor fees).
“NLOK eStore” means the NLOK ecommerce platform or backend containing the NLOK-branded electronic store to which the Referral Store or the Partner Referral Method is connected, where (i) NLOK offers the NLOK Products for purchase (ii) the actual order and sales mechanism for obtaining NLOK Products resides and (iii) all NLOK Products sales transactions occur.
“NLOK Websites” means, collectively, the html websites owned, developed and maintained by NLOK or NLOK’s fulfillment company and made available pursuant to the terms of the Agreement. NLOK Websites include, but are not limited to, the Referral Store and NLOK eStore.
“Partner Referral Initiative” means the separate document executed by the Parties which details the referral arrangement, End User Experience, and any joint marketing activities, as applicable.
“Partner Referral Method” means a connection to the NLOK eStore other than via the NLOK Referral Store. Such referral method is fully described in the End User Experience section in the Partner Referral Initiative and may include by way of example, Partner landing pages. Partner will use the agreed Partner Referral Method to make the End User Offer available to its End Users and may link directly to the NLOK eStore or reference the NLOK eStore. Use of the agreed Partner Referral Method is strictly subject to Partner complying with all requirements and/or restrictions specified by NLOK in the Partner Referral Initiative.
“Partner Site” means, the Partner website located at the URL set forth in the Partner Referral Initiative or notified by Partner to NLOK in writing prior to the Launch Date and from which the End User Offer will be presented to End Users, subject to an End User authentication process for access purposes and in accordance with End User Experience described in the Partner Referral Initiative.
“Referral Store” means a web page created and hosted by NLOK, that features the NLOK Product and that is linked to the NLOK eStore. The availability of the Referral Store is subject to the Launch Date.
“Party” and “Parties” means NLOK and Partner either individually or collectively.
“Promo Code” means a unique NLOK reference code used in a referral campaign in order to provide certain campaign specifications, including but not limited to the NLOK Referral Store (if applicable), the NLOK product offering, any applicable discounting (if any) and to assign Partner attributes for Tracking purposes.
“Renewal Center” means NLOK’s online renewal center which enables existing End Users to renew their existing NLOK Product subscription.
“Revenue Share”/”DRS” means a percentage revenue share of the Net Revenue for each respective first time purchase or Subscription Renewal, as applicable, under this Agreement during the Term. The applicable percentage of the Revenue Share for the purposes of this Agreement is set forth in the Partner Referral Initiative.
“Secure Area” means an area of the website and/or servers controlled by Partner which are considered “secure” in accordance with then-current and prevailing industry standards and as agreed with NLOK in writing.
“Subscription Renewal” means an End User’s election, following the expiry of the initial subscription term (whether on an annual, multi-year or partial year basis) of the NLOK Product, to pay an additional sum in order to continue to receive subscription updates of the NLOK Product for the forthcoming year(s) as applicable. Such additional purchase is made via the NLOK eStore or otherwise directly to NLOK, following a systematic prompt from the NLOK Product.
“Term” means from the Effective date until End Date unless terminated earlier pursuant to the Agreement.
“Trademarks” means the respective trademarks, service marks, trade names, logos and other distinctive brand marks of either Party that are used for the purposes of this Agreement.
“Track or Tracking” or “Trackable” means a method of tracking the sales activity via the then current technology implemented by NLOK (which tracking ability may vary from region to region and which technology is subject to change at NLOK’s sole discretion), which includes all first purchases and Subscription Renewals of the NLOK Product purchased on the Referral Store, that have an associated unique Promo Code. Tracking does not apply to Subscription Renewals of any NLOK product that is purchased later as an upsell (i.e. same NLOK product, but with different device number) /cross-sell (i.e. different NLOK product).
“Year” will be calculated as follows for the purpose of this Agreement: (i) “Year One” is the time from the Launch Date up to and including the applicable one year anniversary date (e.g. 1st January up to and including 31st December) and (ii) any subsequent “Year [N]” means the time from the end of the preceding year up to and including the applicable one year anniversary date.