DIGITAL POST INTERACTIVE – BowTie, Inc. PARTNER AGREEMENT
Exhibit
99.01
DIGITAL
POST INTERACTIVE – BowTie, Inc.
This
Partner Agreement (“Agreement”) effective as of the date of the later signature
below, (“Effective Date”) is by BowTie, Inc. (“Partner”) with its principal
place of business at 0 Xxxxxxxxx, Xxxxxx, XX 00000 and DigitalPost
Interactive (“DPI”), a Nevada corporation with its principal place of
business at 0000 Xx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000. The parties to
this Agreement may be collectively referred to hereinafter as the “Parties” or
individually as a “Party”.
The
Parties desire to enter into a business relationship in accordance with the
terms and conditions of this Agreement, and intending to be legally bound,
hereby agree as follows:
DEFINIITIONS
Customer:
An individual or entity that has acquired and activated the private label BowTie
Pet website (PW) service, based on the Partner’s sales and marketing
efforts.
PW
Service: All versions of the hosted customer service
applications developed and provided by DPI.
Paid
Activation: A PW Service account activation made by a
Customer in which Customer’s payment information has been validated and at least
one (1) payment has been successfully received from Customer.
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1
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Relationship
of the Parties. It is understood that each Party
is an independent entity. Nothing in this Agreement shall be
construed to constitute the Partner or DPI as an employee or agent
of the
other or to create any rights other than the rights described in
this
Agreement. This Agreement does not constitute a franchise or a
joint venture. Neither Party shall have the power to obligate
the other for any expenses or other obligation without the prior
written
approval of the other Party.
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2 Sales
and Marketing.
The
Parties intend to work cooperatively to promote the PW Service. In
order to further this purpose, the Parties shall undertake those
responsibilities described in Attachment A. The Parties agree
that Attachment A may be amended from time to time upon written consent
of both Parties.
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3
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Service,
Hosting and Technical Support
Costs.
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A)
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Development
& Implementation Fee. Partner agrees to pay DPI a
one-time upfront development and implementation fee of $5,000 as
a
guarantee against future DPI revenue in recognition of the costs
and risks
associated with building and launching this private-label PW
Service. Partner will “earn-back” this initial $5,000 fee as
Paid Activations for PW Service occur. Upon launch of PW
Service, Partner will receive 100% of revenue collected from Paid
Activations for PW Service, until the $5,000 milestone is
reached. Once $5,000 in revenue is paid to Partner,
subscription revenue share to Partner will change to 40%, as referenced
below. DPI will include the appropriate “earn-back” payment
with the monthly Revenue Share payment made to
Partner.
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B)
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Ongoing
Hosting Fee. In accordance with the Service Pricing
option referenced below, DPI will not charge Party any fees associated
with providing ongoing hosting of PW Service for the duration of
this
contract. This is based on required best-efforts marketing by Partner
to
promote PW service, as referenced in Attachment A under Partner
Responsibilities.
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The
hosted PW service will include a reference to DPI on the sign up pages and
family website administration page as follows: powered by DigitalPost
Interactive, inclusive of DPI’s logo.
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4
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Service
Elements and Pricing
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The
following PW service level shall exist:
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A)
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Standard
package, which includes a 2 week free trial period, storage of 1,000
photos and 5 minutes of video, specially priced for Partner’s customers at
$4.95 per month. Customer shall pay the PW subscription fee through
a
shopping cart that is hosted by
DPI.
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B)
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Classic
package, which includes a 2 week free trial period, storage of 2,500
photos and 30 minutes of video, specially priced for Partner’s customers
at $8.95 per month. Customer shall pay the PW subscription fee through
a
shopping cart that is hosted by
DPI.
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C)
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Premium
package, which includes a 2 week free trial period, unlimited storage
of
photos and video clips, and a centralized email account, specially
priced
for Partner’s customers at $11.95 per month. Customer shall pay the PW
subscription fee through a shopping cart that is hosted by
DPI.
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Both
parties agree that service elements and pricing may be adjusted, based on market
conditions and other factors. Such adjustments must be mutually agreed upon,
with a 90-day written notice.
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5
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COMPENSATION
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A)
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Subscription
Revenue Share. DPI agrees to pay Partner forty percent
(40%) of the ongoing monthly subscription fees received by DPI for
active,
paying Customer Subscriptions during the Term of this Agreement.
Upon
cancellation of the Agreement by either Party, for a period of 90
days DPI
shall continue to pay the Partner forty percent (40%) of the net
fees
received by DPI for active, paying Customer Subscriptions that were
generated through the efforts of the Partner during the term of this
Agreement.
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B)
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Payment. For
the above-mentioned Subscription Revenue Share, DPI shall pay Partner
monthly, on or about the 15th
day of the
calendar month following completion of successful Customer Paid
Activations Partner shall have the right to conduct, at its
expense and no more than once in any six-month period, an audit of
DPI’s
books and records by an independent accounting firm in accordance
with
generally accepted auditing standards during regular business hours
upon
at least ten (10) business days’ advance notice. Audits shall
be for the purpose of determining whether amounts payable have been
properly calculated and paid. In the event that such an audit
reveals any underpayment, Partner shall be reimbursed for all underpaid
amounts and that audit shall not count toward the limit of no more
than
one audit in any six-month period.
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6
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TERM
AND TERMINATION
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This
agreement shall commence on the Effective Date and shall continue in force
for
two (2) years subject to termination as provided below. Following
this period, Agreement shall automatically renew for successive one (1) year
terms unless either Party elects by written notice to terminate the Agreement
with 60 days written notice prior to renewal period.
Termination. Either
Party may terminate this Agreement upon ninety (90) days written notice to
the
other Party.
Rights
Upon Termination. Upon termination of this Agreement, each
Party shall return or destroy the other Party’s confidential information, cease
any use of the other Party’s name, products or services, or product literature,
and terminate any links from its website(s) any description, review or other
reference to either Party’s website(s); provided that the terms of the
confidentiality agreement between the Parties shall survive termination of
this
Agreement according to its terms.
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7
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SERVICE
LEVEL GUARANTEE
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Coverage. DPI’s
service level guarantee applies to any Customer that has at least one uploaded
photo within FW at the time of a service outage.
Service
Level Specifications. DPI endeavors to have the FW Service
available for http access in any part in the world 99.9% of the
time. Network downtime (unavailability) shall be defined as one
hundred percent (100%) packet loss and shall be measured on a monthly
basis. Downtime is measured beginning ten (10) minutes after DPI is
verbally notified of the downtime by phone. Reports of network
downtime via email or fax are not accepted under the Agreement. DPI’s
administrators shall determine the end of the downtime by a trace route to
the
affected computer.
Credits. For
every sixty (60) minutes of continuous downtime in excess of DPI’s 99.9% monthly
uptime guarantee, Customer will be entitled to a ten percent (10%) credit of
the
monthly service fees, with the maximum credit not to exceed fifty percent (50%)
of the monthly service fees for the affected month. In order to
receive a credit, a credit request must be made within seven (7) days after
the
downtime was experienced. Monthly service fee credit shall be the
sole and exclusive remedy in the event of downtime.
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8
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Restrictions. Credits
shall not be provided in the event that downtime results from any
of the
following: i) Scheduled and emergency maintenance and upgrades;
ii) Partner or Customer behavior or failure of Partner or Customer’s
equipment, facilities or applications; or iii) Reasons of Force
Majeure as defined below.
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9
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Customer
Service.
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For
issues relating to PW Service, DPI will provide customer support via phone
and
e-mail during normal business operating hours, Monday – Friday from 9:00am –
5:00pm Pacific.
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10
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CONFIDENTIALITY Neither
Party (the “Recipient”) shall disclose to any third party or use for its
own benefit the other Party’s (the “Discloser”) proprietary or
confidential information except as authorized by the
Discloser. All confidential information of the Discloser shall
remain the sole property of the Discloser. This provision does
not apply to information which the Recipient lawfully receives from
a
third party having no obligation of confidentiality or which the
Recipient
independently develops. Each Party represents that each of its
employees having access to the other’s confidential information will,
prior to receiving such information from the Recipient, have executed
a
customary non-disclosure agreement with the Recipient. These
restrictions and obligations shall remain in effect for a period
of three
(3) years from the date this Agreement is terminated or
expires.
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NON-EXCLUSIVITY
This Agreement does not impose upon either Party an obligation to
exclusively work with the other in any aspects of marketing related
to
their respective products and services, or to participate exclusively
in
any particular marketing effort proposed by the other. Subject
only to compliance with the terms of a confidentiality agreement
between
them with respect to confidential information, the Parties agree
they may
engage in marketing efforts with third Parties, even if such marketing
efforts conflict with the subject matter of this Agreement or compete
with
the other Party’s products or
services.
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INTELLECTUAL
PROPERTY This Agreement does not
constitute a license, express or implied, by either Party to the
other
Party to make, have made, use, reproduce, distribute, display or
perform
any of such Party’s intellectual property rights, including but not
limited to patents, copyrights, trademarks or trade
secrets. All rights not expressly granted to either Party by
the other in this Agreement are reserved by such other
Party.
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TRADEMARKS
AND TRADENAMES
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Rights
in Trademarks. Both Parties acknowledge that the other Party
is the owner of all right, ti
tle
and
interest in and to its name and certain related designs associated
therewith
(“Trademarks”),
together with any new or revised names or materials which the Trademark owner
may adopt to identify it or any of its Services during the Term, and each Party
agrees not to adopt or use any of the other Party’s Trademarks in any manner
whatsoever except as expressly provided in this Agreement.
License
to Use Trademarks. Each Party hereby grants to the other
Party a non-exclusive license during the Term to use their Trademarks, provided
that they are used solely in connection with the marketing of their Services
and
in accordance with the Trademark owner’s specifications as to style, color and
typeface. Upon expiration or termination of this Agreement, each
Party will take all action necessary to transfer and assign to the Trademark
owner, or its nominee, any right, title or interest in or to any of the
Trademarks, or the goodwill related thereto, which the non-Trademark owner
Party
may have acquired in any manner as a result of the marketing of the Trademark
owner’s Services under this Agreement and shall cease to use any Trademark of
the other Party. Each Party hereby agrees to notify the other Party
immediately if any infringement or potential infringement of any Trademark
is
made known to the notifying Party.
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WARRANTY
AND LIMITED LIABILITY
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DPI
shall
furnish Customer with its standard warranty in effect at the time, if any,
covering the PW Service. Such warranty shall run exclusively to the
Customer, and not to the Partner.
DPI
shall
not be liable to the Partner for loss incurred by the Partner arising from
DPI’s
inability to deliver the PW Service due to strike, riot, work stoppage, shortage
or unavailability of product or material, act of government, act of God, war,
or
any other cause beyond the control of DPI.
DPI
MAKES
NO WARRANTY TO THE PARTNER WITH RESPECT TO THE TFP SERVICE OF ANY KIND, EXPRESS
OR IMPLIED. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED. THIS
PROVISION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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NEITHER
PARTY, UNDER ANY CIRCUMSTANCES, SHALL BE LIABLE TO THE OTHER PARTY
FOR
DAMAGES OF ANY NATURE, WHETHER DIRECT OR INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL, INCLUDING, BUT NOT LIMITED TO LOST PROFITS,
LOSS
OF GOODWILL, OR FOR EXPENDITURES MADE OR COMMITTED TO BY THE OTHER
PARTY
IN RELIANCE UPON CONTINUATION OF THIS AGREEMENT, EVEN IF THE PARTY
HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL
SURVIVE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
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Notices.
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All
notices by either Party given under this Agreement shall be in writing and
shall
be hand delivered or sent certified mail, return receipt requested or by
overnight courier. Notice may be given by facsimile if confirmed in
writing by first class mail, postage pre-paid or by overnight
courier. Notices to each Party shall be given at their respective
addresses first above written.
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Assignment.
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Neither
Party shall assign any of its rights, interests or obligations under this
Agreement to a third party without the other Party’s prior written
consent.
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Applicable
Law.
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This
Agreement shall be governed by and construed according to the laws of the State
of California.
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Severability.
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Any
provision of this Agreement which is adjudged to be illegal, invalid or
unenforceable in any respect shall not affect any other provision of this
Agreement and the balance of the Agreement shall continue in full force and
effect.
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Entire
Agreement.
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This
Agreement, including any Attachments hereto, supersedes all other agreements
and
representations, express or implied, written or oral, between the Parties with
respect to the subject matter of this Agreement. This Agreement shall
not be changed or modified except in a writing signed by duly authorized
personnel of each Party.
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Headings.
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The
sections and paragraph headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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Force
Majeure.
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Neither
Party shall be liable for any failure or delay in its performance under this
Agreement due to causes, including, but not limited to, an act of God, act
of
civil or military authority, fire, epidemic, flood, earthquake, riot, war
sabotage, labor shortage or dispute, and governmental action, which are beyond
its reasonable control.
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Publicity
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Subject
to the other party’s prior written approval, which shall
not be unreasonably withheld, either Party may issue a
press release or make statements to the press or general public
regarding
this Agreement.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
DigitalPost
Interactive.–
Fax: 000.000.0000 Partner-
BowTie, Inc.
By: By:
Printed
Name: Printed
Name:
Title:
Title:
Date: Date:
ATTACHMENT
A
RESPONSIBILITIES
OF THE PARTIES
GENERAL
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1.
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Each
Party agrees to identify a coordinator with overall responsibility
for
ensuring the success of the relationship. Coordinators can be
changed, by their respective employers, at the sole discretion of
the
employer.
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2.
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The
Parties shall use reasonable efforts to conduct ongoing marketing
and
planning initiatives as mutually deemed appropriate, to review strategies,
direction, and customer
requirements.
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PARTNER
RESPONSIBILITIES
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1.
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Understanding
that the success of this relationship is based upon best efforts
made to
market the FW service to its online audience and through other channels,
Partner shall make such best efforts to actively promote and sell
the FW
Service via its website(s), email and advertising, as well as by
any other
manner that is customary for the
Partner.
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2.
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Examples
of marketing initiatives that Partner may implement
include:
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Banner
Ads and Online Contests
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Email
Newsletters
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Forum
Posts
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Reviews
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Partner
Catalogs
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Partner
Stores
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3.
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Partner
shall cooperate with DPI in jointly developing marketing with the
appropriate value proposition and key messages to be used to effectively
promote the PW using Partner’s logo to Partner’s client
base.
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4.
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Partner
shall begin promoting the PW Service on Partner’s website(s) within 30
days of completion of the development of PW
Service.
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5.
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Partner
shall obtain written approval from DPI for all marketing collateral
in
which DPI is mentioned.
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DPI
RESPONSIBILITIES
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1.
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DPI
shall host and maintain the private label Pet Website
Service.
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2.
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DPI
shall obtain written approval from Partner for all marketing collateral
in
which Partner is mentioned.
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3.
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DPI
shall provide Partner with a branded shopping cart that will allow
tracking of Customer sign ups for revenue sharing
purposes.
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4.
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DPI
shall be responsible for all billing, invoicing and fee collection
from
Customers who choose to purchase PW Service or photo
merchandise.
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5.
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DPI
will work with Partner’s designated integration team to ensure that A) log
in/password information is carried through from Partner’s site to the PW
and B) new design templates can be added to the
PW.
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