These HiBob Tech Partner Terms (“Terms”) are made and entered into on the date on which you signed and confirmed your acceptance (“Effective Date”), by and between Hi Bob Ltd., (collectively with its Affiliates, the “Company“) and the party submitting the Partner Application Form (the “Tech Partner”). Each of the Company and the Partner shall be referred herein as a “Party”, and together the “Parties”.
WHEREAS, the Company is the developer and provider of certain proprietary cloud-based Software as a Service (SaaS) platform that enables companies to manage their human resources and employee benefits (“Company Platform”);
WHEREAS, the Tech Partner is the developer and operator of the proprietary platform as provided in the Partner Application Form (“Tech Partner Platform”);
WHEREAS, the Parties wish to engage in a business collaboration between them with respect to (i) mutual referral of Leads (as defined below); (ii) exchange of API to enable an integration between the respective Parties’ Platforms; and (iii) joint marketing activities, all as applicable and further detailed hereunder; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1. “Affiliate” shall mean, with respect to either Party, any legal entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means (a) ownership of more than 50% of the equity of such party or entity or (b) the power to direct or cause the direction of the management and policies of such party or entity.
1.2. “Active Customer” shall mean a Qualified Lead that entered into a Commercial Agreement with the Company following a referral of a Party, subject to these Terms.
1.3. “API” shall mean a set of program functionalities and interfaces required to enable a Party to use and interact with the platform of the other Party and to successfully achieve interoperability therewith.
1.4. “Data Protection and Privacy Laws” shall mean all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada, Israel, Australia and the United States of America, as applicable to the Processing of Personal Data under these Terms including (without limitation) the GDPR and the UK GDPR.
1.5. The terms “Controller“, “Processor“, “Personal Data” and “Processing” shall have the same meaning as in the GDPR.
1.6. “Company Trademarks” shall mean all trade names, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Company Platform and the Company (and its Affiliates) generally.
1.7. “Commercial Agreement” shall mean a Party’s relevant subscription agreement and such other related documentation setting forth the terms of engagement with a Qualified Lead.
1.8. “First Year License Fees” shall mean the total first year license fees payable to a Party for the use of the Party’s platform by the applicable Active Customer (i.e., excluding any implementation fees or other additional fees) as agreed under the Commercial Agreement with such Active Customer. For clarity’s sake, the Company’s First Year License Fees are based on the initial minimum subscription of authorized users in the Commercial Agreement with such Active Customer.
1.9. “Lead” shall mean a prospective customer: (i) who is not currently evaluating or who has not previously purchased products or services from the Tech Partner or the Company (as applicable); and (ii) who has been referred to the Tech Partner or the Company (as applicable) in compliance with all the terms herein.
1.10. “Platform” shall mean the Company’s Partner relationship management platform, which may be subject to change at Company’s sole discretion.
1.11. “Qualified Lead” shall mean either (i) a Lead which has been submitted via the Platform and for which Company has provided confirmation of acceptance, or (ii) a Lead which the Company has submitted to the Tech Partner and has become an Active Customer.
1.12. “Tech Partner’s Trademarks” shall mean all tradenames, trademarks, servicemarks, logos, copyrights, goodwill, books and records and all other general intangibles relating to or used in connection with the operation of the Tech Partner’s activities and the Tech Partner generally.
1.13. “Referral Fee” shall mean the consideration a Party is eligible for following the submission of a Qualified Lead. The calculation of the Referral Fee shall be as detailed in Appendix A.
1.14. “Rejected Lead” shall mean a Lead which has not been accepted by the applicable Party as one of the criteria below applies to it:
In order to enable an integration between the Company Platform and the Tech Partner’s Platform (“API Integration”), the Parties hereby agree that each party shall grant access to and/or use of the other Party’s API and any accompanying related documentation source code, executable applications and other materials as needed to enable the API Integration. Furthermore, the parties hereby agree that the following provisions shall apply with respect to such API Integration:
2.1. Development. The Tech Partner shall develop, implement the API Integration and thereafter shall maintain (in all cases, at its own costs) technical, user and graphical interfaces to be used in the Company Platform, which shall facilitate and allow the API Integration, in such manner as shall be agreed in writing between the Parties. The Company shall provide reasonable assistance to the Tech Partner in such development.
2.2. Acceptance. Each Party shall assess and perform a commercial and technical evaluation of the services, developments, feasibility and commercial aspects of the collaboration hereunder. The Parties shall not use any API, code or technology in connection with this collaboration without the other Party’s prior written approval. Prior to any “go live” date (i.e. making available to the public or to Customers) of the API Integration or any feature thereof, the Tech Partner shall submit a detailed demo and instructions document of the API Integration via the “Training” tab on the Platform. The demo and instructions shall confirm a fully functional version of the API Integration and any feature pertaining thereto. Company may review, examine and test the necessary specification and provide the acceptance consent via the Platform.
2.3. Support. The Tech Partner will be solely responsible for the maintenance and support of the API Integration in accordance with its standard support terms. The Company shall provide reasonable assistance as may be requested by Tech Partner from time to time, at the Tech Partner’s sole expense. For clarity’s sake, each Party hereby agrees that it shall be solely responsible for providing applicable support for their respective platform.
2.4. Security Requirements. The Tech Partner hereby agrees that (i) it shall have and maintain compatible security certifications as the Company (e.g., SOC2, SOC1); (ii) that all data transmitted in connection with the API Integration shall include in transit encryption and shall include reasonable audit logs of such transmissions; (iii) it shall have a similar business continuity plan and disaster recovery program in place with substantially similar recovery point objectives and recovery time objectives as the Company (24 hours and 48 hours respectively). The Company may request proof of the aforementioned from the Tech Partner at any time and the Tech Partner shall cooperate with the Company to ensure that such security requirements are met.
3.1. Lead Referral
3.1.1. The Parties shall, on a non-exclusive basis and under the terms and conditions of these Terms, make commercially reasonable efforts to promote each other’s Platform. The Tech Partner may bring Leads, after having conducted an initial discovery meeting with such Lead (when applicable), to the Company by (i) submitting a “Lead Submission Form”, or (ii) through the generation and publication of a “Partner Referral Link”, both available to the Tech Partner on the Platform. At the Company’s request, the Tech Partner will: (i) supply any additional information reasonably requested by the Company, (ii) discuss each completed Lead Submission Form in detail with the Company, and (iii) assist the Company in contacting the proposed Lead by arranging an introduction, meeting, conference call or other means of communication with such Lead.
3.1.2. Company may also refer Leads to the Tech Partner in accordance with the Terms through an agreed-upon electronic channel.
3.1.3. The Tech Partner has no authority to bind the Company to any undertaking or performance with regards to the Company Platform or otherwise. Any engagement, promise, and/or commitment entered by the Company with Qualified Leads, if at all, shall be made at the Company’s absolute and sole discretion. Failure to enter into an agreement and/or transaction with a Qualified Lead shall not constitute any cause for liability claims against the Company. In the event that the Company rejects any potential transaction with a Qualified Lead, no fee and/or other form of consideration or compensation shall be payable.
3.1.4. Tech Partner’s undertakings. Without derogation from the obligations as detailed in these Terms, when communicating with a Lead referred by Company, the Tech Partner shall not mention, refer to, or otherwise indicate the Company’s name and/or any connection to the Company and any of its Affiliates unless approved in advance by the Company in writing. A breach of this Section 3.1.4 shall be considered cause for termination as detailed below, effective immediately.
In Company’s attempt to provide its Active Customers with sufficient time to fully execute and integrate the Company Platform once signing a Commercial Agreement, the Tech Partner undertakes to abide by the Code of Conduct as further detailed within Appendix A.
4.1. While these Terms are in effect, the Tech Partner and Company shall both solicit Qualified Leads to enter into Commercial Agreements with the other in connection with the Company Platform or the Tech Partner’s Platform, solely subject to and in accordance with these Terms, and to establish meetings with the Qualified Leads, and at Company’s request follow-up such meetings with active promotion and marketing (“Referral Services”).
4.1.1. The Parties shall comply, each at its own expense, with the applicable laws in connection with the performance of the undertakings hereunder, including without limitation, applicable data protection and security regulations. The Parties agrees to conduct their business in a manner that favorably reflects upon the other Party and its respective platform.
4.1.2. A Party shall not and have no authority to: (i) reverse engineer, disassemble, decompile, modify, translate, or alter the other Party’s proprietary platform or any Confidential Information (as defined below), or any part thereof, or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the other Party’s proprietary platform or the other Party’s Confidential Information or any portion thereof by any means whatsoever; (ii) use a Party’s proprietary platform or a Party’s Confidential Information for any purpose other than the purposes stated in these Terms; (iii) copy a Party’s proprietary platform or Confidential Information, develop any derivative works, improvements or modifications thereof or include any portion of a Party’s proprietary platform or Confidential Information in other products; or (iv) make any representations concerning a Party or a Party’s proprietary platform that exceed or are inconsistent with the marketing materials provided to a Party or that are otherwise misleading and/or inaccurate; or (v) make any publication with respect to a Party, a Party’s proprietary platform, or any public use of the Company Trademarks or Tech Partner’s Trademarks (as these terms are defined above) without the other Party’s prior written approval.
4.1.3. In the event a Party obtains knowledge that a third party is attempting or may attempt to take any of the foregoing actions prohibited by this Section, the respective Party shall so notify the other Party in writing immediately and shall cooperate and provide full information and assistance in connection with any such action, proceeding or other measures.
4.1.4. The Parties represent and warrant that they do not have any pre-existing obligations that are inconsistent with these Terms or that may prevent or impair their ability to perform any of the services hereunder. During the applicability of these Terms, the Tech Partner shall not render services to any other person or entity which may conflict with its obligations under the Terms.
4.1.5. Documentation and Information. The Parties shall, at their discretion, provide each other, through the Platform, with advertising materials, technical data, samples, documentation, or any other information that are deemed necessary to enable performance in accordance with the Terms. Each Party, as applicable, shall retain all rights and title, including intellectual property rights, in and to the Company/Tech Partner Platform and the Company/Tech Partner Trademarks, and in and to any such advertising materials, technical data, samples, documentation, or any other information made available as part of the Terms or developed in connection therewith; and in and to any Confidential Information. All goodwill and rights inuring from the Tech Partner activities under these Terms, including but not limited to from the use of the Company Trademarks, trade names, logos or domain of or related to Company and/or the Company Platform, shall vest and belong solely to the Company.
The Parties hereby agree to reasonably cooperate and act in good faith on joint marketing efforts with respect to the Parties’ collaboration as shall be mutually agreed and coordinated between the Parties.
6.1. More details can be found in Appendix A.
6.2. Payment Terms. Referral Fees are payable within thirty (30) days after the end of the calendar quarter in which the Company receives payment from all such Active Customers provided that the Company has received a valid invoice from the Tech Partner.
6.3. The Tech Partner is solely responsible for submitting accurate and true financial and general information on the Platform. Company shall not be liable for any late payments caused by incorrect or insufficient information.
6.4. Expenses. The Tech Partner shall be solely responsible to pay any and all expenses incurred by it for the performance of its activities and obligations and shall not be entitled to any further payment or compensation whatsoever other than the Referral Fees, unless approved in advance by the Company in writing.
6.5. Taxes. Any and all taxes, levies or similar fees payable in connection with the Marketplace Fee or the Referral Fees, shall be borne and payable by the Tech Partner.
7.1. Title; Ownership. Each Party owns and shall retain all rights, including intellectual property rights in and to such relevant Party’s proprietary platform, each Party’s Trademarks and the Parties’ Confidential Information, including any derivatives, updates, enhancements, modifications or improvements made thereto.
7.2. Confidentiality. The Parties will hold in strict confidence the contents and all information that is of a confidential or proprietary nature (“Confidential Information”). Confidential Information shall be maintained in confidence and shall be protected and treated with the same degree of care as each Party uses to protect its own confidential information of like importance, but no less than reasonable degree of care. Confidential Information may not be disclosed except to a Party’s personnel and agents who have a need to know, and only to the extent required for the purpose of these Terms, provided such personnel and agents have executed a confidentiality agreement with at least as restrictive as required in these Terms. Each Party shall remain liable at all times for any acts and/or omissions of its personnel and agents. The provisions of this Section shall survive termination of the Terms for any reason and shall remain in force indefinitely.
8.1. Without derogating from the specific provisions set forth below, and for the purposes of executing the Referral Services, the Parties shall be considered independent Controllers and shall comply with all applicable data protection and privacy laws and regulation in the performance of these Terms relating to the collection, use or disclosure of any information that, alone or in combination could be used to readily identify a natural person (“Personal Data”).
8.2. As between the Parties, each Party is the owner and controller of any data (including customer data) collected by it (whether alone or through the other Party). The owner of data shall be responsible and obligated to register or amend registration for any database (as applicable).
8.3. Sharing of Personal Data by the Tech Partner with the Company. The Tech Partner represents and warrants that at all times; (i) it has established the necessary lawful basis to collect, process and transfer the Personal Data to Company for the purposes in these Terms and that all Personal Data shared with Company is accurate and up-to-date, all in accordance with applicable Data Protection and Privacy Laws; (ii) it has provided the data subjects related to the Personal Data with notices and information so as to enable fair, transparent and lawful processing of the Personal Data (including sharing it with Company and transfers to third-countries); (iii) the Personal Data may be processed by Company for the purpose of the Terms; (iv) the Personal Data is transferred to Company in a secure manner using appropriate technical and organizational security measures that comply with the obligations of applicable Data Protection and Privacy Laws; (v) it shall immediately notify the Company if it becomes aware of any change or circumstance which will, may or is alleged to impact the lawfulness of any processing of the Personal Data by the Company; (vi) it shall keep copies of all notices, consents or other records and information necessary to demonstrate its compliance with this Section and shall promptly, upon the Company’s request, provide the Company with copies of such notices, consents and other records and information; (vii) it will co-operate with and provide reasonable assistance, information and records to the Company to assist with its respective compliance with Data Protection and Privacy Laws in relation to its processing of the Personal Data (viii) it shall indemnify the Company from and against all claims and proceedings and all liability, loss, costs, fines, and expenses (including reasonable legal fees) arising in connection with Tech Partner’s failure to comply with its obligations under this Section.
8.4. Cross-Border Transfers of Personal Data. If a Tech Partner’s sharing of Leads with the Company under these Terms involves a transfer of Personal Data from an EEA member country, Switzerland, or the United Kingdom (“UK”), to countries that do not offer an adequate level of data protection under or pursuant to the adequacy decisions published by the relevant data protection authorities of the EEA, the EU, the EU Member States, the European Commission, Switzerland, and/or the UK, as applicable, and such transfer is not performed through an alternative recognized compliance mechanism for the lawful transfer of Personal Data (as defined in applicable Data Protection and Privacy Laws), the Parties agree that prior to any such transfer they shall enter into (i) the Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 (“EU SCCs“); and/or (ii) the EU SCCs as amended for their lawful use under the Swiss Federal Act on Data Protection of 19 June 1992; and/or (iii) the International Data Transfer Agreement issued by the UK’s Information Commissioner under Section 119A(1) of the Data Protection Act 2018, and in force as of 21 March 2022 (each as applicable).
9.1. In addition to the other representations and warranties set forth herein, each Party represents and warrants to the other Party as follows:
9.1.1. It has full authority to sign these Terms;
9.1.2. It will comply with the Company’s Code of Conduct, as provided in Appendix A to these Terms, as well as all Federal, State and local laws and regulations in performing its duties and obligations under these Terms;
9.1.3. All necessary consent to sign these Terms has been obtained; and
9.1.4. Signing these Terms does not violate any law, rule, or regulation.
9.2. Exclusive Warranty. THE WARRANTIES CONTAINED IN THIS SECTION 9 ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR ARISING BY A COURSE OF DEALING OR USAGE OF TRADE.
9.3. TECH PARTNER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S) HEREIN AND THE COMPANY PLATFORM AND ANY COMPANY CONTENT, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. IN PARTICULAR, THE COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE COMPANY PLATFORM WILL BE UNINTERRUPTED, CONTAMINANT-FREE OR ERROR-FREE, THAT SYSTEM AVAILABILITY BE MAINTAINED, THAT ANY ERROR, BUG OR PROBLEM BE RESOLVED OR THAT THEY WILL MEET THE TECH PARTNER’S OR ACTIVE CUSTOMER’S REQUIREMENTS.
10.1. These Terms shall commence as of the date on which the Tech Partner has signed them on the Platform.
10.2. Termination for Cause. Company may terminate the contractual relationship and these Terms immediately in case of any breach of the Terms by the Tech Partner which is not or cannot be cured within five (5) days of notice of such breach.
10.3. Termination for Convenience. Each Party may terminate the contractual relationship and these Terms for convenience and with no reason being required, by providing prior written notice of not less than ten (10) days.
10.4. Effects of Termination. Upon termination or expiration of the contractual relationship and these Terms as aforementioned:
10.4.1 All rights and licenses (if any) granted to a Party in accordance with the Terms shall forthwith terminate and expire and the Tech Partner shall immediately return all documentation and other materials supplied to it by the Company hereunder as well as any materials containing Confidential Information of the Company;
10.4.2. All obligations for the payment of any outstanding Marketplace Fee and Referral Fee(s) (if applicable) to the Tech Partner shall survive termination of the contractual relationship and these Terms, for such respective period.
11.1. The Tech Partner shall indemnify, defend and hold the Company and its Affiliates harmless from and against any claims, damages (including reasonable attorney’s fees and costs related to litigation), fines, fees, or penalties arising out of (a) any act or omission by the Tech Partner which violates any laws, rules and regulations (including but not limited to those data protection regulations); (b) Tech Partner’s use of the Company API in excess of the rights granted herein; (c) information or data acquired through the API provided by Tech Partner or others on Tech Partner’s behalf; (d) Tech Partner’s actions in violation of Section 3.1.4 above; or (f) claims of intellectual property infringement. Company will indemnify, defend, and hold Tech Partner harmless from and against any third-party claims, damages (including reasonable attorney’s fees and costs related to litigation) fines, fees or penalties arising out of any act or omission by Company which violates any laws, rules and regulations.
11.2. Each Party shall promptly notify the other of any claim or threat of claim of which such Party becomes aware and that may give rise to a demand for indemnification under this Section. The Parties waive any right to trial by jury in any action arising out of, in connection with, or in any way related to these Terms.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S TOTAL LIABILITY HEREUNDER SHALL NOT EXCEED THE LESSER OF THE AMOUNT OF THE FEES PAID OR PAYABLE BY TECH PARTNER HEREUNDER FOR THE PRECEDING SIX (6) MONTH PERIOD OR $25,000.
13.1. Entire Terms. These Terms, including all exhibits, constitute the entire agreement between the Tech Partner and Company with respect to the subject matter of these Terms and supersede and replace any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of these Terms, including previous non-disclosure and collaboration agreements between the Parties.
13.2. Relationship of Parties. The Parties are engaging in these Terms on a non-exclusive basis. These Terms do not create and shall not be construed as creating an employer-employee relationship between the Company and the Tech Partner, nor any agency, joint venture or partnership (notwithstanding the use of the terminology of “Tech Partner”). Tech Partner shall have no authority to act for the Company or to represent that the Company is in any way responsible for the acts or omissions of the Tech Partner. Except as otherwise provided, each Party shall bear its own administrative costs and overhead expenses arising out of its performance of these Terms.
13.3. Non-Solicitation. The Parties agree that while the Terms have not been terminated by either Party thereof neither they nor any of their Affiliates, will directly or indirectly by itself or permit or assist any third party to, as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, to call on, solicit, take away, or attempt to call on or solicit, or take away any of the employees, agents or contractors of the other Party whether referred or not. During such time, the Parties shall also not (a) entice, induce or in any manner influence any person or entity who is, or shall be in the direct or indirect service of the other Party to leave the same for the purpose of engaging in a business or being employed by or associated with any other business; or (b) engage or participate in any business that is in competition in any manner whatsoever with the business or contractual relationships of the other Party. The above shall not apply to a response to a public notice of employment.
13.4. Assignment. Each Party shall not assign any of its obligations and/or rights under and according to these Terms without the other Party’s prior written consent. Each of the Parties may, without the need for such consent, assign these Terms to a respective affiliate or any successor upon the sale of all or substantially all of such Party’s share or assets or the assets (“Permitted Assignment”). Upon such Permitted Assignment, the rights and obligations under the Terms will be binding upon and inure to the benefit of said affiliate, purchaser or successor in interest, provided that in case of a Permitted Assignment in connection with a sale of assets, such purchaser shall agree in writing to be bound by all the provisions of these Terms.
13.5. Change of Terms. Company reserves the right to modify or otherwise update the Terms at any time. Partner’s continued use of the Platform after any change to these Terms becomes effective shall be deemed acceptance of such changes.
13.6. Governing Law. The interpretation, construction and the remedies for enforcement or breach of the Terms shall be according to the laws of England and Wales and the competent courts in London, England shall have sole and exclusive jurisdiction over any conflict and/or dispute arising out of, or in connection to, the Terms.
13.7. Notices. All notices and other communications from one Party to the other shall be delivered or sent via the Platform.
This Appendix A hereby details the commercial terms between the Tech Partner and Company:
The above is offered at Company’s discretion and is subject to change from time to time. The Tech Partner will be notified of any such change in advance by written notice.
As sole remuneration for Tech Partner’s participation in the Company’s integration marketplace, the Company shall be entitled to a fee on a recurring annual basis of $3,000 USD (“Marketplace Fee”).
The Marketplace Fee shall be payable within thirty (30) days following the acceptance of these Terms.
The Company may accept or reject any Lead in its sole discretion within a reasonable period following submission of a Lead Submission Form or following notice of a Lead originating from a Partner Referral Link (respectively, Qualified Leads or Rejected Leads) and shall provide Partner written notice of such acceptance/rejection. For clarity’s sake, such Qualified Lead shall be valid for receipt of a Referral Fee if such Qualified Lead becomes an Active Customer within one hundred and eighty (180) days of Partner’s submission of the Lead (“Validity Period”). An extension of the Validity Period may be provided, upon Company’s sole discretion, subject to the submission of a request via the Platform or via email to [email protected].
As sole remuneration for the referral activities rendered by Tech Partner under these Terms, Tech Partner shall be entitled to the following consideration:
|Tier||Silver Partner||Gold Partner||Platinum Partner|
|Rewards upon Tier attainment & retention: Referral fee|
|% of first year license fee||10%||15%|
|Rewards upon Tier attainment & retention: Marketing + Co-Selling|
|Access to Company docs & materials||Yes||Yes||Yes|
|Company Product Roundup||Based on Capacity||Yes||Yes|
|Social Media Post||Monthly post||Monthly post||Monthly post|
|HiBob team Sales Enablement||No||No||Yes|