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Partner Terms & Conditions

DEFINITIONS

“Partner”
refers to an individual or organization that applies to be and is accepted as a participant in a Partner Program.
“Agreement”
refers to these Terms and Conditions together with the Program Terms.
“Program”
refers to SmartVault’s Partner Program(s) as described as described on the Company’s web site, SmartAffiliate Program and Solution Provider Program. See also paragraph 2.6, concerning SmartVault’s right to modify the Program.
“SmartVault”
refers to SmartVault Corporation.
“Us” and related terms (“we,” “our,” etc.)
when used in the context of your indemnity- and defense obligations, refer to SmartVault Corporation and its affiliates and the officers, directors, employees, shareholders (or equivalent persons for non-corporate entities), and agents of each of them. Otherwise, such terms refer solely to SmartVault Corporation.
“You”
refers to the individual or organization signing up to be a SmartVault partner.

Program Operations

  • We will notify you within a reasonable time whether we have accepted your application to be a SmartVault Partner. We do not guarantee that we will accept your application.
  • Your participation in the Program is non-exclusive.
  • Any order placed by a customer that you refer to us is subject to our standard customer terms and conditions unless we and the customer expressly agree otherwise.
  • We reserve the right to reject or withhold acceptance or fulfillment of orders placed by referred customers, for any reason or for no reason, including but not limited to failure to comply with our terms and conditions.
  • If you market products or services competitive with SmartVault’s offerings, you agree to give your SmartVault Link at least as much prominence on your Web site as any such competitive product or service.
  • As between you and SmartVault, we have exclusive authority to determine the feature set and all other characteristics of the Program, and to set the prices that we charge to our customers; in addition, we are solely responsible, and have sole authority, for processing and fulfillment of customer orders for our offerings. We reserve the right to modify the Program at any time, including for example the commission- and bonus structure and/or the Program Terms and/or these Terms and Conditions. If you continue to participate in the Program after we advise you of a modification, that will constitute your agreement to the modification, and you will be bound by it.
  • We may change our pricing at any time without notice to you, so WE STRONGLY RECOMMEND that you not display our pricing on your Web site.
  • We reserve the right to solicit customer referrals via other referral programs that have different terms and conditions than in this Agreement.
  • We reserve the right to operate Web sites that are similar to or compete with your Web site.
  • SmartVault does not grant you a license under any SmartVault intellectual-property rights except to the extent expressly set out in this Agreement, nor do you acquire ownership of any such rights.
  • As between you and us, we will own all right, title and interest in and to all information provided to us by any customers that you refer, subject to our then-current privacy policy.
  • In performing your obligations and exercising your rights under this Agreement, you will comply with applicable law. You will defend and indemnify us against any claims arising from or relating to any actual or alleged violation of law by you or by personnel subject to your control.
  • You agree that we may contact you from time to time with information about our partner programs.
  • Taxes on your commissions are your responsibility. You agree to defend and indemnify us against any claims arising from or relating to your tax liability.
  • This Agreement will apply to any new features, tools, etc. for the Program (if any) that we may release in our discretion.
  • You are solely responsible for the operation of your business, including for example the cost of developing, operating, and maintaining your Web site. You agree to defend and indemnify us against any third-party claims arising out of or relating to your business.
  • You will not permit others to do things that you are prohibited from doing under this Agreement, nor knowingly help them to do so.

WARRANTY DISCLAIMER; REMEDY LIMITATIONS

SMARTVAULT DISCLAIMS, FOR ITSELF AND ITS SUPPLIERS, ALL REPRESENTATIONS, WARRANTIES, DUTIES, AND CONDITIONS not expressly stated in this Agreement (or expressly stated in a document expressly incorporated by reference herein). This disclaimer includes, for example, any implied warranties (as opposed to express warranties stated in this Agreement) of:

  • merchantability
  • fitness for a particular purpose
  • quiet enjoyment
  • title
  • noninfringement

Except as provided by law, or otherwise agreed in writing, OUR AGGREGATE LIABILITY arising out of or relating to breach of this Agreement SHALL NOT EXCEED, and in respect thereof you agree not to seek, damages greater than the aggregate amounts paid and payable to you under this Agreement in the previous 12 months.

Except as provided by law, or otherwise agreed in writing, WE WILL NOT BE LIABLE FOR, and you agree not to seek, consequential, indirect, special, punitive, exemplary, or similar damages arising out of breach of this Agreement, whether in contract, tort, or otherwise, and even we have been advised of the possibility of such damages.

TERMINATION; BREACH

  • We reserve the right to terminate your participation in the Program for any reason, subject to any restrictions that may be imposed by law. As one example, we may terminate your participation if we determine, in our sole discretion, that we do not wish to have your Web site associated with the Program.
  • If you breach this Agreement, we reserve the right to suspend your participation in the Program and/or to declare forfeited any commissions arising from the breach.

ARBITRATION

  • All disputes, claims, and controversies arising out of or relating to this Agreement or any relationship resulting from this Agreement will be resolved by binding arbitration under the U.S. Federal Arbitration Act and the law governing this Agreement, with the former taking precedence over the latter in any case of conflict between the two.
  • The arbitration will be conducted before a single arbitrator (the ‘arbitration panel’), in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA).
  • The arbitration panel’s award will be enforceable in any court of competent jurisdiction.
  • The parties intend for disputes about arbitrability to be arbitrable.
  • A party to a dispute in arbitration may apply to any court of competent jurisdiction for temporary-, interim-, or preliminary injunctive relief or comparable equitable relief, without waiver of its right to arbitration.

GENERAL PROVISIONS

  • You may not assign your rights as a SmartVault Partner to any other party without SmartVault’s prior written consent; any other purported assignment will be void. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties to this Agreement and their respective successors and assigns.
  • You authorize us to communicate with you by email and FAX as well as postal and delivery services.
  • By express agreement of the parties, this Agreement and certain of its appendixes, exhibits, and attachments, if any, are written in and shall be interpreted for all purposes in accordance with the English language as used in the United States of America. [French translation: Les parties conviennent expresssément que le présent Accord ainsi que toutes ses annexes seront rédigés en langue Anglaise et interprétés par référence à la terminologie utilisée aux Etats-Unis.] In the event of a disparity between the English version and any non-English version of this Agreement, the English version will govern.
  • This Agreement is the parties’ final, complete, exclusive, and binding statement of the terms and conditions of their agreement concerning its subject matter; except as stated in this Agreement, there are no promises, understandings, representations, or warranties of any kind between the parties concerning that subject matter.
  • All disputes arising out of this Agreement are to be decided in accordance with the law of the United States of America and the State of Texas that would be applied, by the courts having jurisdiction there, to contracts made and performed entirely there by residents thereof. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act will not govern this Agreement.
  • The courts having subject-matter jurisdiction in Houston, Texas will have non-exclusive jurisdiction of any non-arbitrable action or proceeding arising out of or relating to this Agreement.
  • Except as may be expressly provided otherwise in this Agreement, the parties intend for their relationship defined by this Agreement to be strictly that of independent contractors; you will conduct yourself accordingly. For example, you will not hold yourself out as an employee, agent, partner, joint venture, division, subsidiary, or branch of SmartVault. You do not have, nor will you hold yourself out as having, authority to make commitments or representations on behalf of SmartVault. You will defend and indemnify us against any claim arising from or relating to any failure by you to conduct yourself as an independent contractor pursuant to this Agreement.
  • You will not issue any press release or other publicity concerning this Agreement or your relationship with us without our written consent.