This ThoughtMetric Partner Program Agreement ("Agreement") constitutes a legally binding contract between ThoughtMetric Inc. ("Company") and you ("Partner" or "Affiliate"), (together, the "Parties") effective as of the date you accept this agreement by selecting the acceptance checkbox ("Effective Date").
PLEASE CAREFULLY REVIEW THIS AGREEMENT. IT INCLUDES LIABILITY LIMITATIONS AND OTHER IMPORTANT PROVISIONS. IF YOU ARE ACCEPTING THIS AGREEMENT FOR A COMPANY OR OTHER LEGAL ENTITY, YOU CONFIRM THAT YOU POSSESS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL MEAN SUCH ENTITY AND ITS AFFILIATES. IF YOU LACK SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT PROCEED WITH THIS AGREEMENT AND CANNOT PARTICIPATE IN THE PROGRAM. BY ACCEPTING THIS AGREEMENT, YOU CONFIRM THAT YOU HAVE REACHED THE AGE OF MAJORITY IN YOUR JURISDICTION, OR THAT YOU ARE OF LEGAL AGE AND HAVE PROVIDED CONSENT FOR ANY MINOR DEPENDENTS TO USE THE PROGRAM.
For purposes of this agreement:
"Customer" means any individual and/or organization that has executed a Software as a Service Agreement ("SaaS Agreement") with ThoughtMetric and has remitted payment according to the SaaS Agreement terms.
"Commission" means the commission payment to which a Partner is entitled under the ThoughtMetric Partner Program.
"Confidential Information" means all information shared by one Party to the other Party under this Agreement concerning its products, services, customers, marketing, research and development, business operations and finances, including technical data, documentation, code, prototypes and copies thereof, which is either clearly designated as confidential at the time of disclosure or which would reasonably be considered non-public and confidential given the disclosure circumstances. Confidential Information excludes information that the receiving Party can demonstrate: (i) became publicly available through no fault of the recipient; (ii) was lawfully known by the recipient before disclosure; (iii) was developed independently by the recipient without using information from the disclosing Party; or (iv) was authorized for public release by written permission from the disclosing Party. Specific information shall not be considered exempt from confidentiality merely because it falls within general public information.
"ThoughtMetric Partner Program" or "TM Partner Program" or "Program" means the comprehensive affiliate program, policies, benefits, and responsibilities governing the ThoughtMetric partnership program, as outlined in this Agreement.
"ThoughtMetric Platform" means the proprietary Software as a Service Platform provided by ThoughtMetric through which Customers may manage their partner program(s) to enable Customer partners to market, refer or sell Customer products.
"ThoughtMetric Marks" means all trademarks, trade names, service marks, service names and logos utilized by ThoughtMetric.
1.1 ThoughtMetric operates a distinctive proprietary platform enabling ThoughtMetric's Customers to build, manage and expand their partner programs. Partners will have the opportunity to refer potential customers to ThoughtMetric, and this Agreement governs the terms and conditions of this ThoughtMetric Partner Program.
2.1 Application Process. Partners must complete an application form. Upon submission, ThoughtMetric will make reasonable efforts to review applications within seven (7) business days and will notify applicants of acceptance or rejection via email or through the ThoughtMetric Platform. ThoughtMetric maintains the right to decline any application at its sole discretion.
2.2 Acceptance Confirmation. Only when ThoughtMetric has approved the applicant for the Program and the applicant has received acceptance notification, are the terms and conditions of this Agreement binding on the applicant, thereafter referred to as the Partner.
2.3 Program acceptance and participation does not grant acceptance into ThoughtMetric's other partnership programs, and this Agreement's terms are separate from other program agreements.
3.1 Partner Referral Leads. Are exclusively leads that register for ThoughtMetric Services through one of the Partner's tracking links generated in their ThoughtMetric dashboard. ThoughtMetric will only provide Commission payments to Program Partners for referral leads that become paying Customers for Services, and will not compensate for referred leads using only ThoughtMetric's complimentary tools.
3.2 Invalid Leads; Rejection Criteria. A referral lead is not valid if they are:
(a) an existing ThoughtMetric Customer
(b) currently engaged in ThoughtMetric's sales pipeline
(c) working with an active ThoughtMetric agency partner
(e) A customer whose purchase was partially or completely funded by the Partner, directly or indirectly
The Program utilizes last-click attribution for referral leads, meaning if a lead accesses ThoughtMetric through multiple Partner links, conversion credit and associated commissions will be awarded to the Partner whose link was used during the final visit before conversion.
ThoughtMetric reserves the right to reject any referral lead at its sole discretion.
3.3 Lead Expiration Policy. If a referral lead takes no action with ThoughtMetric within 30 days of initial submission, the Partner is no longer eligible for attribution credit for that referral lead.
3.4 Cookie Duration Notice. Cookies Utilized In The Affiliate System Have A Predetermined Duration. If A Prospective Customer Deletes Their Cookies During This Timeframe, Thoughtmetric Shall Not Be Responsible For Any Commissions That May Have Been Due To You.
4.1 Commission Eligibility. Partners shall qualify for Commission payments as specified in Schedule "A", provided that:
(a) the referral lead has executed a subscription agreement with ThoughtMetric for the Service and
(b) ThoughtMetric has received subscription payment from the referral lead, thereafter called the Customer, which may be monthly, quarterly, or annual, based on ThoughtMetric's agreement with the respective Customer.
(c) the referral lead maintains ThoughtMetric customer status throughout a 60-day period.
Partner commissions will be paid proportionally based on the Customer's payment frequency to ThoughtMetric (monthly or quarterly) through the payment processors on the ThoughtMetric Platform exclusively. Commissions for additional or subsequent years, if applicable, depend on ThoughtMetric's receipt of those future subscription fees.
4.2 Commission Calculations; Payment Processing. Commissions apply only to subscription fees for the Service. All other ThoughtMetric charges are ineligible for commissions, including but not limited to support fees, professional services, rewards, transaction fees or training costs. All Commissions will be accessible to Partners via the ThoughtMetric Platform immediately upon ThoughtMetric's receipt of subscription fees. All ThoughtMetric calculations shall be final, except in cases of obvious error.
4.3 Commission Eligibility Requirements. Partner's commission entitlement, if any, shall be determined solely by ThoughtMetric, acting reasonably and in good faith. To qualify for commissions under this Agreement, Partners must have:
(i) accepted the terms of this Agreement (ii) completed all required steps to establish a Partner account in the ThoughtMetric Platform (iii) maintained a valid and current payment method in the ThoughtMetric Platform.
4.4 Tax Responsibilities. Partners are responsible for calculating and remitting any and all taxes related to Commissions paid by ThoughtMetric to Partners under this Agreement, including but not limited to all federal, provincial, state, local or other governmental taxes, income and withholding taxes.
5.1 No Intellectual Property Rights Transfer. Partners acknowledge that all Intellectual Property Rights and associated goodwill belong exclusively to ThoughtMetric. Partners shall not acquire any right, title or ownership in the Intellectual Property Rights.
5.2 Intellectual Property Protection. Partners agree not to remove, alter or damage any ThoughtMetric Marks from marketing materials provided by ThoughtMetric. Partners shall follow all ThoughtMetric instructions and guidance regarding the form and manner of ThoughtMetric Marks usage, including updating materials as needed.
5.3 Trademark Usage Rights. During this Agreement's term, if ThoughtMetric makes the ThoughtMetric trademark available to Partners, Partners may use the ThoughtMetric trademark provided the usage meets the requirements in this section. Partners must:
(i) use only the exact ThoughtMetric trademark images explicitly provided to Partners, without modification; (ii) use ThoughtMetric trademarks only in connection with the Program and this Agreement; (iii) comply with the ThoughtMetric vendor kit and Trademark Usage Guidelines; and (iv) immediately comply with any ThoughtMetric employee requests to discontinue use.
Partners must not:
(i) use ThoughtMetric trademarks in a misleading or disparaging manner; (ii) use ThoughtMetric trademarks in ways that suggest ThoughtMetric endorses, sponsors or approves of Partner's services or products; or (iii) use ThoughtMetric trademarks in violation of applicable law or in connection with obscene, indecent, or unlawful topics or materials.
6.1 Pay-Per-Click Restrictions ("PPC"). Unless ThoughtMetric provides Partners with written permission first, Partners agree to follow these restrictions:
Partners may not bid on any of ThoughtMetric's Restricted terms (defined below) for search or content-based campaigns on Google, Bing, Yahoo, Capterra, Facebook or similar networks.
(i) "Restricted" includes any of these terms: ThoughtMetric, ThoughtMetric Inc., ThoughtMetric.com, https://ThoughtMetric.com coupon, ThoughtMetric discount code, ThoughtMetric discount, ThoughtMetric promo code, ThoughtMetric sale, ThoughtMetric promo, ThoughtMetric sales, ThoughtMetric deals. Partners may not use these restricted terms, including variations or misspellings, in combination with other keywords.
(ii) Partners may not use these Restricted terms as titles, ad copy, display names or display URLs. Partners may not use any Restricted List terms as part of a domain or subdomain for their website.
(iii) Partners may not direct links from PPC advertisements to their sites or use redirects achieving the same result. Referral leads should be directed to authentic pages on Partner's website.
(iv) If Partners automate their PPC campaigns, it is exclusively the Partner's responsibility to exclude ThoughtMetric's trademark terms from marketing and related advertising activities.
6.2 Marketing Requirements. Partners shall use commercially reasonable efforts to market and promote (through referrals to ThoughtMetric) the service to potential Customers. Partners shall not engage in misleading or deceptive marketing practices. Partners are responsible for all costs incurred in their marketing activities related to this Agreement. The exclusive compensation for Partner efforts under this Agreement shall be the Commissions outlined in Schedule A. Partners may not use their own Partner Link to purchase ThoughtMetric products for themselves.
6.3 Legal Compliance. Partners shall comply with all applicable laws, rules, regulations and best practices relating to their activities under this Agreement, including but not limited to all anti-spam laws, privacy laws and data protection laws.
6.4 Confidentiality; Non-Disclosure. Partners acknowledge and agree that they will not:
(a) utilize any ThoughtMetric Confidential Information except to perform activities under this Agreement; or
(b) disclose any Confidential Information to any person or entity, other than their own personnel to the extent necessary to fulfill this Agreement and only to personnel who have agreed to confidentiality obligations substantially similar to those of Partners outlined in this Agreement.
Partners agree to use reasonable efforts and no less than industry standards to protect the Confidential Information.
6.5 ThoughtMetric Marks License. ThoughtMetric hereby grants Partners a non-exclusive, non-transferable, non-assignable right and license to use, copy, display and advertise ThoughtMetric's name and the ThoughtMetric Marks during this Agreement's term for the purpose of conducting Partner activities under this Agreement.
6.6 Non-Disparagement Clause. During this Agreement's term and for one (1) year thereafter, Partners shall not make any disparaging statements, whether oral or written, regarding ThoughtMetric, any of its shareholders, directors, officers, employees or agents, or the Service.
7.1 NO WARRANTIES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ThoughtMetric PROVIDES NO WARRANTY OR INDEMNITY CONCERNING THE SERVICE OR ITS PERFORMANCE. ThoughtMetric EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, INDEMNITIES, COVENANTS AND CONDITIONS, ORAL OR WRITTEN, EXPRESS, IMPLIED, WHETHER ARISING UNDER CUSTOM, COMMON LAW OR STATUTE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ThoughtMetric PROVIDES NO WARRANTY THAT THIS ARRANGEMENT WILL PRODUCE A CERTAIN LEVEL OF SALES, COMMISSIONS OR FINANCIAL BENEFIT TO THE PARTNER.
8.1 INDEMNIFICATION. Partners will indemnify, defend and hold ThoughtMetric harmless, at Partner's expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against ThoughtMetric (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with ThoughtMetric to the extent that such Action is based upon or arises from:
(a) Partner's participation in the TM Partner Program, (b) our use of prospect data provided by Partners to ThoughtMetric, (c) Partner's non-compliance with or breach of this Agreement, (d) Partner's use of the ThoughtMetric Platform or (e) Partner's use of the ThoughtMetric Marks.
ThoughtMetric will: notify Partners in writing within thirty (30) days of becoming aware of any such claim; give Partners sole control of the defense or settlement of such claims; and provide Partners (at Partner's expense) with all information and assistance reasonably requested by Partners to handle the defense or settlement. Partners may not accept any settlement that:
(i) imposes an obligation on ThoughtMetric; (ii) requires ThoughtMetric to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on ThoughtMetric without ThoughtMetric's prior written consent.
8.2 LIABILITY LIMITATION. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, ThoughtMetric'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT AND THE SERVICE WILL NOT EXCEED THE TOTAL OF ALL COMMISSION AMOUNTS PAID BY ThoughtMetric TO PARTNERS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS IN THIS PARAGRAPH SHALL APPLY TO ALL INDEMNITY OBLIGATIONS, ACTS OR OMISSIONS OF ThoughtMetric, REGARDLESS OF THE FORM OF ACTION, WHETHER PURSUANT TO STATUTE, CONTRACT, TORT, EQUITY OR ANY OTHER FORM OF ACTION.
8.3 LOST PROFITS, CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY LOST REVENUE OR LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Termination Rights. This Agreement may be terminated at any time by: (a) either Party upon thirty (30) days written notice to the other Party or (b) by ThoughtMetric immediately upon notice if Partners breach any provision of this Agreement. If ThoughtMetric terminates the Agreement, payment obligations shall survive for one (1) month after termination; provided that Partners are only entitled to Commissions for new Customers they referred to ThoughtMetric prior to the effective termination date.
10.1 Assignment Restrictions. Without ThoughtMetric's prior written consent, Partners may not assign this Agreement or any rights or obligations hereunder.
10.2 Entire Agreement, Modifications. This Agreement contains the complete understanding of the parties on this subject matter and supersedes any previous agreements or understandings, written or oral, between the parties relating to this subject matter. No amendment or modification of this Agreement shall be effective unless agreed to in writing by both parties.
10.3 Notice Requirements. Notice to Partners will be sent within the ThoughtMetric Platform and/or by email to the email address provided to ThoughtMetric. Notice will be effective when given. Notice to ThoughtMetric must be given by email to legal@thoughtmetric.com and will be effective when received.
10.4 Force Majeure. Except for confidentiality obligations, neither Party shall be liable for any delay or failure to perform obligations in this Agreement directly attributable to circumstances beyond its reasonable control.
10.5 Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Delaware and the laws of The United States applicable therein. The Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware for any legal proceedings arising from this Agreement or the performance of obligations hereunder.
Schedule A
Commission Structure | Commission Amount | Commission Length of Time | Commission Schedule |
Affiliates will be entitled to the following for commission for referred clients. | 15% of clients annual subscription fee. | One year of services paid for by client. | First commission paid 60 days after client becomes ThoughtMetric customer. |