Liquid Web, LLC (“Liquid Web”), a Delaware limited liability company at 2703 Ena Drive, Lansing, MI 48917, or one or more of its family of brands identified at https://www.liquidweb.com/our-brands/ (either brand referred to as “Liquid Web” hereinafter) wishes to engage Partner, whose name and contact information has been entered into Liquid Web’s sales management system, to promote its products and/or services (“Services”). BY SIGNING THIS PARTNER+ AGREEMENT (“Agreement”) AND SELECTING PARTNER’S INTENT TO RESELL OR REFER, PARTNER ACCEPTS AND IS BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE OF ACCEPTANCE (“Effective Date”). Liquid Web and Partner are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.”
Liquid Web reserves the right to modify this Agreement at any time by posting the modified Agreement to the Liquid Web Partner Portal. By continuing to promote the Services, Partner agrees to be bound by the modified terms. It is Partner’s responsibility to check the Liquid Web Partner Portal regularly for modifications to this Agreement.
Terms Applicable Only to the Resale/Integration of Liquid Web Services
RELATIONSHIP OF THE PARTIES
1. Agreement. Liquid Web provides or will provide Services to Partner pursuant to Liquid Web’s Terms of Service (“TOS”) located at https://www.liquidweb.com/about-us/policies/terms-of-service/. Partner desires to resell Liquid Web’s Services and Liquid Web grants Partner a limited, revocable, non-exclusive right to do so subject to the terms of this Agreement.
2. Partner and End User. Liquid Web’s relationship with Partner including, but not limited to, Liquid Web’s delivery of Services and Partner’s payment obligations, under this Agreement and the TOS is solely with Partner and not the customer to whom Partner resells the Services (“End User”). There are no third-party beneficiaries to this Agreement. Partner shall execute an agreement with each End User that includes no less restrictive terms that the terms contained in the TOS, as well as an acknowledgment from End User that it has no rights against Liquid Web in connection with the Services.
3. Billing; Taxes. Partner shall be solely responsible for establishing pricing, billing, payment, and collections with its End User in connection with the Services. Partner is also responsible for payment of any and all taxes owed as a result of Partner’s obligations under this Agreement.
4. Technical Support. Liquid Web shall be responsible for providing Partner or Partner’s End User answers related to customer service and technical support, including troubleshooting and basic diagnostics year round, twenty- four (24) hours a day, seven (7) days a week. Liquid Web reserves the right to charge Partner and/or reduce or eliminate Partner’s commission if Partner requires excessive technical support assistance to its End User from Liquid Web.
5. Liability for End Users. Partner acknowledges and agrees that it is liable to Liquid Web for the fees for the Services regardless of whether the End User pays the amounts due to Partner. Partner acknowledges and agrees that it is responsible for use and compliance of the Services by each End User and End User’s compliance with the TOS.
REPRESENTATIONS AND WARRANTIES
6. By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is not bound by any other agreements or obligations that limit its ability to enter into this Agreement; (c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; and (d) as to Partner, the Services are used for design, development, marketing, or maintenance and qualify as a resale under the terms of this Agreement.
Terms Applicable Only to the Referral of Liquid Web Services
APPOINTMENT AND RELATIONSHIP OF THE PARTIES
7. Appointment. Liquid Web appoints Partner as a non-exclusive Partner for the promotion of Liquid Web’s Services. During the term of this Agreement, Liquid Web grants to Partner a non-exclusive, non-transferable, and revocable right to use Liquid Web’s trademarks in Partner’s marketing material for the promotion of Liquid Web Services.
8. Independent Contractors. The Parties are independent contractors and this Agreement shall not be construed to create or imply any association, joint venture, or agency relationship between the Parties. Neither Party shall have any authority to act or represent itself, directly or indirectly, as an agent of the other.
9. Referral of Services. Partner shall provide Liquid Web with the name as well as complete and accurate information regarding the customer referral and the Services desired via the Liquid Web Partner Portal or confirmed referral via email by both Parties within thirty (30) days of the introduction of the referred customer. Should Liquid Web accept the referral for the specific Service, and should such referral result in a customer entering into an agreement for Liquid Web’s Services within 180 days of Partner’s introduction, Liquid Web shall pay Partner the commission specified in Section 13. Liquid Web is not obligated to pay Partner a commission for a referred Service that was not entered into the Liquid Web Partner Portal prior to the purchase of Liquid Web’s Services. In addition, Partner shall not be paid a commission for any Services delivered to a referred customer prior to the date of this Agreement or for a referred customer that, at the time of referral, is already a potential customer in Liquid Web’s sales management system.
NON-SOLICITATION AND REMEDIES
10. Non-Solicitation and Remedies. Partner agrees that, during the term of the Agreement, for any customer that it introduced to Liquid Web which resulted in such customer purchasing Liquid Web Services, Partner will not, directly or indirectly, solicit such customer to purchase products and/or services that are competitive to Liquid Web Services resulting in such customer terminating its Services with Liquid Web. Partner acknowledges and agrees that Liquid Web will suffer significant damages if Partner fails to comply with the obligations set forth in this Section and therefore agrees that it will pay Liquid Web, as liquidated damages and not as a penalty, an amount equal to fifty percent (50%) of all monies received by Partner or anyone acting on behalf of Partner, for any sales made to a referred customer by Partner.
REPRESENTATIONS AND WARRANTIES
11. By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is not bound by any other agreements or obligations that limit its ability to enter into this Agreement; and (c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
Terms Applicable to the Resale/Integration and Referral of Liquid Web Services
COMMISSIONS AND DISCOUNTS
12. Amount. Upon accepting the terms of this Agreement, Partner shall receive a discount for reselling Liquid Web’s Services or paid a commission upon securing an agreement with any referred customer. Such discount or commission payment structure can be found at https://www.liquidweb.com/partner-community/web-professional/, or at https://www.nexcess.net/partners/agency/.
13. Payment Terms. For the resale of Services, Partner shall receive a discount for the Services at the time of purchase in accordance with the applicable level at the time of purchase. For referrals, Partner shall be paid an ongoing commission (via PayPal, ACH, or account credit, at Partner’s election) only on the referred Service, not all Services purchased by a referred customer, within sixty (60) days of referring a customer that purchases such Services from Liquid Web, however, Liquid Web reserves the right to adjust Partner’s following commission payment if Liquid Web does not receive payment for Services from the referred customer. In the event that Partner does not specify a payment type, and Liquid Web does not receive a response from Partner after three reasonable attempts to contact with Partner within 180 days based upon Partner’s contact information provided to Liquid Web, then Partner shall forfeit any discounts or commissions.
14. Confidential Information. The Parties acknowledge that the Mutual Confidentiality Agreement, executed by the Parties and incorporated herein by reference, remains valid, binding and in full force and effect.
15. Disclaimer. LIQUID WEB MAKES NO OTHER WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
TERM AND TERMINATION
1. Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party under this Section.
2. Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the other Party.
If this Agreement is terminated for convenience, and subject to the requirements in Section 12, Liquid Web shall make a final payment to Partner, in accordance with Section 9 and 13 of this Agreement. In addition, Partner shall pay for any early termination fees and/or other charges as outlined in the TOS.
18. Termination For Breach. Either Party may terminate this Agreement if the other Party breaches any material provision of this Agreement and fails to cure such breach within ten (10) days of receipt of notice from the non-breaching Party (“Cure Period”), however, Partner’s breach of Section 6 of this Agreement shall result in immediate termination and withholding or refund of any payment beginning on the date the breach occurred. Such notice shall specify the basis for the termination, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the eleventh (11th) day following the breaching Party’s receipt of such notice.
1. Survival. The rights and obligations under this Agreement, which by their nature should survive, shall remain in effect after termination of this Agreement. INDEMNIFICATION AND LIMITATION OF LIABILITY
2. Indemnification. 2. **Partner will indemnify, defend and hold Liquid Web harmless against any third party claims, losses, liabilities, damages or expenses** (including reasonable attorneys’ fees and expenses) (“Claims”) that arise directly or indirectly from Partner’s negligence or willful misconduct in the referral of customers to Liquid Web or resale of Liquid Web’s Services, or Partner’s breach of any term of this Agreement.
21. Limitation of Liability. IN NO EVENT WILL LIQUID WEB BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING UNDER THIS AGREEMENT EVEN IF LIQUID WEB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. IN NO EVENT WILL LIQUID WEB’S TOTAL LIABILITY HEREUNDER EXCEED ONE HALF (50%) OF THE COMMISSIONS PAID TO PARTNER OR $5,000.00, WHICHEVER IS LOWER.
22. Assignment and Successors. Neither this Agreement nor any of the rights or obligations of either Party can be assigned or delegated to any other entity without the prior written consent of the other Party, which consent will not to be unreasonably withheld or delayed. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assignees of the respective Parties.
1. Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
2. Governing Law and Jurisdiction. The Parties agree that the validity, construction and interpretation of this Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflict of laws principles, and any legal action or proceeding arising under this Agreement will be brought either in the federal court in the Western District of Michigan or state courts located in Ingham County, Michigan.
25. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, then such provision will be treated as severable and the remaining provisions will remain in full force and effect.
26. Notices. Any notices or other communications, or changes to the addresses for notices under this Agreement shall be in writing and delivered in person or by first-class mail or postage prepaid certified or registered mail to:
If to Liquid Web:
Attn: Chief Financial Officer
2703 Ena Drive
Lansing, MI 48917
If to Partner, then to the person executing this Agreement on behalf of Partner and to the address provided to Liquid Web.
27. Amendments. This Agreement may be amended, modified, or terminated by Liquid Web at any time and in its sole discretion. Partner’s continued receipt of discounts or commissions under this Agreement following any change to the Agreement constitutes acceptance of the Agreement.
1. Captions. The headings and captions of this Agreement are for convenience only and shall not affect this Agreement’s construction or interpretation.
2. Active Negotiations. This Agreement has been the subject of active and complete negotiations and should not be construed in favor of or against any Party.
Partner+ Agreement Page 2 of 3 2/2/2023 Version
30. Entire Agreement. This Agreement constitutes the entire understanding and final agreement between the Parties. It is the complete expression of the Parties’ agreement regarding the matters contained herein and supersedes all prior or contemporaneous statements, promises, understandings and agreements, whether oral or written, between the Parties with respect to the subject matter of this Agreement, and may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings.
By signing, you indicate that you have read, accept, and agree to be bound by the terms of the Partner+ Agreement.