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Omnisend Partner Terms and Conditions

Effective starting date: 2022-03-01 (March 1, 2022)

By applying for the Omnisend Partner Program (as described below), you are accepting these specific Omnisend Partner terms and conditions (the “Partner Terms”) and are agreeing to be bound by the following Agreement (the “Agreement”). This Partner Agreement is entered into by you on behalf of your company (the “Partner”) and Omnisend, LLC, legal entity code 302530363, address Verkių 25C-1, LT-08223 Vilnius, Lithuania (“Omnisend”, “we” or “us”) and/or Affiliates, as defined below.

Partner hereby agrees Omnisend may provide some or all Services through its Affiliates (as defined herein), since we operate as a group of related legal entities. For purposes of this Agreement, an “Affiliate” means a third-party controlled by, controlling, or under common control with Omnisend; and “control” in relation to any entity means the ability to vote more than fifty percent (50%) of the voting securities of that entity or otherwise the ability to direct the management and policies of that entity. Omnisend Services may be provided through any of its Affiliates and Partner by agreeing to these Partner Terms, agrees to such provision of the Services.

By completing a Partner Program registration or application process or using any of the Omnisend Partner services or benefits offered under the Partner Program, you acknowledge that Partner has reviewed and accepts all the terms of this Agreement and that you are duly authorized to act on behalf Partner’s and bind it to this Agreement. Omnisend’s partners’ portal is available at https://www.omnisend.com/partner-portal/ (the “Partners’ Portal”).

Terms of the Omnisend Terms and Conditions (the Terms) also apply to this Agreement (when applicable). Moreover, Terms and Omnisend Privacy Policy (the Privacy Policy) forms an integral part of this Agreement and Partner undertakes to get acquainted with these documents before entering into a legally binding Agreement. Parties (as defined below) may also sign a separate Technology Partner Addendum which will form an integral part of the Agreement. The need for such a document shall be decided by the Parties separately in writing.

The Partner understands that other agreements may need to be entered into in addition to the Partner Terms in order for Partner to participate in the Partner Program. The necessity of such additional agreements shall be decided unilaterally by Omnisend. Please note that if a Partner is unwilling to enter into such additional agreement, it may not be able to participate in the Omnisend Partner Program. If the Partner does not agree to such additional agreements, it may terminate the Agreement in accordance with the procedures set out therein. Such agreements form an integral part of this Agreement.

Please note that Partner’s application for Partner Program might be approved automatically, however, Omnisend may re-evaluate Partner’s application at a later time and reserves a right to reject or terminate any application at its sole discretion.

1. Definitions

1.1. “Partner” means an entity that has agreed to the Partner Terms herein and intends to work with Omnisend to promote the Services. The different types of Partners are listed below (subject to addition or modification by Omnisend, from time to time):

1.1.1. A “Freelancer/Agency Partner” is a Partner who applies and has been accepted to the Omnisend “Freelancer/Agency Partner Program” and promotes the Services by actively working with Merchants as a designer, website developer, marketing agency, development Partner, or consultant, and referring and registering Merchants via the partner Referral Form (“Referral Form”), Partners’ Portal, or other agreed upon referral methods;

1.1.2. An “Affiliate Partner” is a Partner who applies to join the “Omnisend Affiliate Program” and has been approved and provided with a unique referral link (“Affiliate Link”) to then refer potential customers via said Affiliate Link;

1.1.3. Freelancer/Agency Partner Program and Omnisend Affiliate Program collectively in these Partner Terms shall be referred to as the “Partner Program”.

1.2. “Merchant” means an individual or business that could use the Services for multichannel marketing campaigns.

1.3. “Referred Merchant” means any unique Merchant that: (i) has registered for a paid Omnisend Services via Partner; and (ii) has registered for Omnisend Services by Partner via a Revenue Generating Activity.

1.4. “Revenue Generating Activity” means a revenue-generating activity carried out by Merchant, as determined by Omnisend, including the following:

1.4.1. introduction of a Referred Merchant to Omnisend via Partner’s Affiliate Link;

1.4.2. Introduction of a Referred Merchant to Omnisend via the Referral Form;

1.4.3. Creation of paying Merchant’s account via Partner’s Affiliate Link;

1.4.4. Creation of a paying Merchant’s account via the Partners Portal;

1.4.5. A Revenue Generating Activity will be attributed to Partner on the date the Merchant makes the initial payment of subscription fees for the relevant Services. Payments for Revenue Generating Activities are defined under Section 8 of the Partner Terms.

1.5. “Net Revenue” means gross revenue received by Omnisend from a referred Merchant minus fees associated with one-time services or project-based revenue from professional services, refunds, rebates, setoffs, discounts, promotions, chargebacks, non-payments, or defaults (any of which may be set-off against amounts to be paid to Partner).

1.6. “Services” has a meaning set forth in the Terms, including an access to the Partners’ Portal.

1.7. Omnisend and the Partner are collectively referred to as the “Parties” and individually as a “Party”.

1.8. Other capitalized definitions referred to in Partner Terms shall have the meaning set out in the Terms or Privacy Policy.

2. Responsibilities of the Partner

2.1. The operation of the Partners’ Portal, participation in Freelancer/Agency Partner Program or Omnisend Affiliate Program and other detailed information relevant to the Partner is provided in Omnisend’s training videos, publications and other resources made available to the Partner by Omnisend. In case of any uncertainties, the Partner can always contact our representative who will always provide appropriate assistance.

2.2. Partner undertakes to use its best efforts to promote and market Omnisend and the Services. Partner shall bear all costs and expenses for such activities, and, as applicable, Partner’s applications, themes, channel platform, or Partner’s other products or services associated with Partner’s participation in Partner Program in any area, location, territory, or jurisdiction, unless otherwise determined by Omnisend in its sole discretion.

2.3. Partner shall not: (i) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Omnisend and/or Affiliates; (ii) make any false, misleading or disparaging representations or statements with respect to Omnisend and/or Affiliates; (iii) solicit Merchants to stop using the Services; (iv) copy, resemble or mirror the look and functionalities of the Websites, Marks or Services or otherwise misrepresent Partner’s affiliation with Omnisend and/or Affiliates; or (v) engage in any other practices which may adversely affect the credibility or reputation of Omnisend and/or Affiliates, including but not limited to, sending email communications to non-opted-in Targets or using any website in a manner, or having any content on any website, that (vi) uses aggressive or low-quality marketing, including marketing services that are unrelated to Omnisend or Partner’s services, (vii) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (viii) violates any intellectual property or other rights of any third- party.

2.4. In addition, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all the applicable laws, rules, and regulations.

2.5. Partner’s account must be active at the time of the Revenue Generating Activity. No Fees (as defined below ) will accrue for Revenue Generating Activity that occurred before (or after, e. g. in the event of Affiliate Partner’s removal from Omnisend Affiliate Program) Affiliate Partner’s participation in the Omnisend Affiliate Program.

2.6. Affiliate Partner is not permitted to use redirected pages and links to send a user to Omnisend servers (e. g. Affiliate Partner may not have a PPC link on a search engine that redirects the user to Omnisend’s website). Moreover, Affiliate Partners shall not use “click to reveal” practices in coupon websites, or other methods to force clicks.

2.7. Moreover, it is prohibited for Affiliate Partners to use domain forwarding and direct linking (Affiliate Partners are not permitted to purchase a domain and set it to forward directly to the Omnisend’s website using Affiliate Link).

2.8. Partner shall promptly inform Omnisend of any information known to Partner that could reasonably lead to a claim, demand, or liability of or against Omnisend and/or the Affiliates by any third-party.

2.9. Partner shall not purchase search engine or other pay-per-click keywords (such as Google Ads), or domain names that use Omnisend and/or Affiliates’ names, trademarks and/or variations and misspellings thereof. Omnisend may from time-to-time work directly with Partners on joint objectives that allow for such activities on a one-off agreement that is pre-approved by both Parties.

2.10. Partner acknowledges and agrees that Omnisend may amend, cancel, or modify these Partner Terms (and the Agreement hereafter). Omnisend will notify the Partner of any amendments to the Partner Terms by sending them to the Partner by email and/or in the dashboard on the Partners’ Portal. Amendments to the Partner Terms will take effect after thirty (30) days after sending them to the Partner. . If Partner does not agree to the amendments of these Partner Terms it shall have a right to cancel its account in accordance with the procedure laid down therein.

2.11. Partner acknowledges and agrees that Partner will be responsible for the performance of all its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to, any affiliates or subsidiaries of the Partner.

2.12. Partner acknowledges and agrees that Partner’s participation in Omnisend Freelancer/Agency Partner Program and/or Omnisend Affiliate Partner Program, including information transmitted to or stored by Omnisend, is governed by the Privacy Policy and other data protection agreement(s) concluded between the Parties.

2.13. Partner or its representative must be of an age at which he/she can legally accept payments (Fees). .

3. Termination and Modification of the Agreement

3.1. Unless otherwise agreed upon in writing, either Party may terminate this Agreement at any time, with or without cause, effective after fifteen (15) days after receiving notice ofthe other Party.

3.2. Fraudulent or other unacceptable behavior by Partner, as determined by Omnisend in its sole discretion, may result in the termination or suspension of some or all Partner’s privileges under this Agreement without notice to, or recourse for, Partner.

3.3. Upon termination of this Agreement: (i) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information), or destroy all such property of the other Party in its possession or control (and provide certification of such destruction); (ii) Partner shall immediately cease displaying any Omnisend Creative on any Website or otherwise; and (iii) all rights granted to Partner hereunder will immediately cease, including Partner’s right to receive any payments hereunder, unless otherwise determined by Omnisend in its sole discretion.

4. Intellectual Property Rights

4.1. Creative Omnisend marketing materials (the “Creative”) will be solely created and provided by Omnisend unless otherwise agreed to by Omnisend in writing. Omnisend will provide Partner with copies of or access to the Creative. By using the Creative, Partner indicates its acceptance of Omnisend’s Trademark Usage Guidelines, available at https://omnisend.com/brand-assets, and Partner understands that any violation of these guidelines or this Agreement will result in the termination of Partner’s rights to use and access Creative. The Creative is provided “as-is” and without warranty of any kind.

4.2. Partner may use and access the Creative solely for the purpose of marketing and promoting the Services, Omnisend and/or Affiliates during the term of this Agreement or until such earlier time as Omnisend may, upon reasonable prior notice, instruct Partner to cease displaying the Creative. Partner may not alter, amend, adapt or translate the Creative without Omnisend‘s prior written consent. Nothing contained in any Creative shall in any way be deemed as representation or warranty by Omnisend or any of Affiliates. The Creative shall always be the sole and exclusive property of Omnisend and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Omnisend to make changes or modifications to the Creative.

4.3. As between Partner and Omnisend, the Creative, all demographic and other information relating to Merchants, including those that were referred or registered via an Affiliate Link, prospective Partners and Partners, Merchant Data, the Service, documentation, the Omnisend API (as defined in the Technology Partner Addendum), hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Omnisend or otherwise related to Affiliates, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Omnisend Property”) shall be and remain the sole and exclusive property of Omnisend and/or Affiliates. To the extent, if any, that ownership of any Omnisend Property does not automatically vest in Omnisend by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to Omnisend, upon the creation thereof, all rights, title and interest Partner may have in and to such Omnisend Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

4.4. During the term of this Agreement, Omnisend hereby grants to the Partner a limited, revocable, non-exclusive and non-transferable license to display Omnisend trade names, service marks, “d/b/a”s names, URLs, logos or trademarks (collectively, the “Marks”), solely as necessary to perform the Partner’s obligations under this Agreement. The Partner acknowledges and agrees that: (i) it will use the Marks only as permitted hereunder; (ii) it will use the Marks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Omnisend; (iii) the Marks are and shall remain the sole property of Omnisend; (iv) nothing in this Agreement confers Partner any right of ownership in the Marks and all use thereof by Partner shall inure solely to the benefit of Omnisend; and (v) Partner shall not, now or in the future, contest the validity of any Marks or use any term or mark confusingly similar to any of the Marks.

4.5. Partner shall not use any Omnisend and/or Affiliate trademark or the word mark Omnisend or variations of the word “Omnisend” in Partner’s business name, logo, products, or services and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media, or domain name (including without limitation top-level domains and sub-domains). Furthermore, Partner agrees not to: (i) alter or otherwise modify any of the Marks; (ii) attack ownership of, or rights to, any of the Marks; or (iii) intentionally use the Marks in a way that might deceive others, create a likelihood of confusion, or destroy or diminish the goodwill in any of such Marks.

4.6. During the term of this Agreement, Omnisend hereby grants to Partner a limited, royalty-free, non-transferable, non-sublicensable and non-exclusive right to use and access the Services solely for the purpose of promoting or demonstrating the Omnisend products and Services in accordance with the terms of this Agreement.

5. Confidentiality

5.1. “Confidential Information” shall include, but shall not be limited to, any and all non-public information associated with the other Party’s business, including but not limited to, technical processes or formulas, specific trading information, source or API codes, prospective customer lists, customer lists, names, addresses and other information regarding customers or Merchants and prospective customers or Merchants, product and designs, sales and processes, costs, and/or other unpublished financial information, marketing data or business plans, and any other confidential and proprietary information, whether or not marked as proprietary and confidential.

5.2. Each Party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations hereunder. Each Party agrees that it shall take all reasonable steps, at least equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement.

5.3. Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the possession of the receiving Party, at the time of disclosure of such information, as evidenced by the receiving Party’s reasonable prior written records; (ii) is independently developed by the receiving Party without breaching of violating applicable law or any provision of this Agreement, as evidenced by written records created contemporaneously with such development; or (iii) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party not under an obligation of confidentiality to the disclosing Party, and without breaching or violating any law or provision of this Agreement.

5.4. In the event the receiving Party becomes required by law, rule, regulation, judicial or administrative process to disclose any of the disclosing Party’s Confidential Information, the receiving Party shall, prior to making such disclosure, to the extent permitted by applicable law or regulation, provide the disclosing Party with prompt written notice thereof, so that the disclosing Party may seek a protective order or other appropriate remedy. All disclosing Party’s Confidential Information shall be returned or destroyed, as instructed by such disclosing Party, upon the earlier to occur of the disclosing Party’s request or the termination or expiration of this Agreement. Notwithstanding the foregoing, the receiving Party may retain copies of the disclosing Party’s Confidential Information to the extent it has been electronically archived by the receiving Party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time, provided that any such Confidential Information so retained shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the receiving Party.

6. Representation and Warranties

6.1. Partner acknowledges that the Omnisend products and Services are provided “as-is” and “as available”. That means that except to the extent expressly set forth in the Agreement, we don’t provide warranties of any kind, either express or implied. We do not warrant the Services will meet your requirements nor do we provide any warranty about results that may be obtained by using the Services. Without limiting the foregoing, Omnisend further disclaims all representations and warranties, express or implied, that the Services, the Omnisend API, or the Marks will satisfy Partner’s or Merchants’ requirements and or will be uninterrupted, error-free or free from harmful components. Omnisend does not warrant its products or Services will meet Partner’s or Merchants’ requirements, nor does Omnisend give any warranty about the results that may be obtained by using its products and Services.

6.2. The Services may rely on third-party software and hardware and we make no representations, promises or guarantees regarding third-party software and hardware.

6.3. From time to time down-time of the Services, either scheduled or unscheduled, may occur. Omnisend will work within reason to ensure this amount of down-time is limited. We shall not be held liable for:

6.3.1. Temporary and/or permanent downtime and/or malfunction, temporary unavailability of the Services, provided it was caused by objective reasons;

6.3.2. Loss of or damage to the data, unless this occurred due to our fault or gross negligence;

6.3.3. Storage of information and data – transferred by the Partner to the Omnisend server while using the Services – upon termination of the use of the Services.

6.4. Omnisend cannot guarantee that any file or program available via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all files associated with the Services, and you release Omnisend entirely of all responsibility for any consequences of its use.

6.5. Each Party represents and warrants that: (i) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has the full right, power, and authority to enter into the Agreement and to perform its obligations under the Agreement; and (iii) the Agreement has been duly executed by its authorized representative and is legally binding upon it and enforceable in accordance with its terms.

6.6. Partner hereby represents and warrants to Omnisend that: (i) the execution, delivery, and performance by Partner of this Agreement will not violate or conflict with any law, statute, or other governmental regulation, or any other agreement, arrangement or instrument to which it is a party; (ii) at all times, it will present Omnisend’s products and Services to potential customers accurately, fairly, and truthfully and will not make any misleading, unfair or deceptive statements about Omnisend or its products and Services, or misrepresent them in any way; (iii) it will not disparage Omnisend or its products and Services; and (iv) it will take all reasonable measures to promote the good reputation of Omnisend and its products and Services.

7. Indemnification and Limitation of Liability

7.1. Partner agrees to indemnify, defend and hold harmless Omnisend and Affiliates and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (i) Partner ‘s breach of any representation, warranty, obligation, term, condition or covenant under this Agreement; (ii) Partner’s negligence or intentional misconduct; (iii) Partner’s misuse of the Omnisend API; (iv) Partner’s breach of any term of a Merchant agreement; (v) infringement by Partner’s products or services of the intellectual property or other rights of a third-party; (vi) the performance, non-performance or improper performance of the Partner’s products or services; (vii) Omnisend’s use of Partner’s trademarks, service marks or logos in accordance with the terms and conditions set forth herein; (viii) Partner’s violation of applicable law; and (ix) Partner’s relationship with any Merchant.

7.2. In claiming any indemnification hereunder, the Indemnified Party shall provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of Section 7.1 above. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, if Partner shall control such defense and all negotiations relative to the settlement of any such claim, and further provided that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which shall not be unreasonably withheld.

7.3. In the event of any breach or threatened breach by Partner of any provision of Partner Terms, in addition to all other rights and remedies available to Omnisend under this Agreement and under applicable law, Omnisend shall have the right to (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) immediately terminate this Agreement, (iii) receive a prompt refund of all Fees paid to Partner hereunder, and (iv) be indemnified for any losses, damages or liability incurred by Omnisend in connection with such violation, in accordance with the provisions of this Section.

7.4. In no event will Omnisend be liable to Partner or a Merchant for any indirect, remote, lost profits, punitive, incidental, consequential, special, or exemplary damages arising out of or related to this Agreement, even if Omnisend has been advised of the possibility of such damages and regardless of whether such liability is based on contract, tort (including negligence), strict liability, warranty, or otherwise. In no event will Omnisend’s maximum aggregate liability for any claims arising in connection with this Agreement exceed the amount actually paid to Partner hereunder during the six (6) months preceding the act or omission giving rise to such liability.

8. Omnisend Partner Program Payment Terms

8.1. “Eligible Referral” means a Merchant (i) actively engaged with Partner and actively looking for the Services and that (ii) is not already an existing Customer of Omnisend or was not already involved in discussions with Omnisend within the last ninety (90) days, (iii) which has not been submitted to Omnisend as a potential referral by Partner or any third-party within the last ninety (90) days, (iv) for which Omnisend accepts a Referral Form or account registration via Affiliate Link from Partner, and (v) with which Omnisend enters into an agreement to provide the Services no later than ninety (90) days after Omnisend’s receipt of a Referral Form, or ninety(90) days from Affiliate Link registration for such Merchant from Partner.

8.2. An Eligible Referral cannot be an account opened and/or owned by the Partner. All Freelancer/Agency Partner Program referrals must be submitted at https://www.omnisend.com/partner-referral/, referred via an Affiliate Link, introduced directly to a Partner manager, or created via the Partners’ Portal. All Affiliate Partner Referrals must click on an Affiliate Link which can be found in the affiliate portal.

8.3. Partner acknowledges that he/she has a full responsibility ensuring that the Affiliate Link is working and fully functional.

8.4. “Qualified Revenue” means fees for the Services received by Omnisend from a referred Merchant as a direct result of an approved Referral Form under this Agreement within ninety (90) days of the approval of such Referral Form. This excludes fees received for Omnisend professional service offerings.

8.5. Partner, if specified by Omnisend, must register each referred Merchant as a lead via the Referral Form or other specific form proposed by Omnisend to Partner. Following the date of Partner’s submission of the Referral Form, Omnisend shall review information for each referred Merchant and notify Partner in writing (including by email) within five (5) business days of receipt of the relevant Referral Form if Omnisend, in its sole and reasonable discretion, accepts or rejects such referred Merchant. If Omnisend notifies Partner that such referred Merchant is an Eligible Referral, Omnisend will work with the Partner to discuss such Eligible Referral in reasonable detail, and the Partner will assist Omnisend in contacting the Eligible Referral by arranging an introduction, meeting, conference call, or other means of communication between Omnisend and the Eligible Referral.

8.6. All Fees will be distributed to Partner within forty five (45) days after the end of the calendar month in which Omnisend received the Qualified Revenue for monthly subscription plans from the Referred Merchant. The Fees for the Partner will be issued through a dedicated third-party system which is not owned and administered by Omnisend. The Partner will be made aware of the system to be used at the start of the Agreement. Fees amount will be determined based on Partner’s Revenue Generating Activity, as defined in the chart below. Partner agrees to pay all applicable taxes and charges imposed by any government entity in connection with Fees under this Agreement (excluding taxes on Omnisend’s net income).

8.7. The Partner can check at any time the balance of the Fees to be paid in its account at any time. Fees to the Partner are paid in USD.

8.8. If the partnership between the Parties is terminated through no fault of either Party, then the calculation of Fees shall cease on the day of termination and Omnisend shall make the final payment of the Fees within -forty five(45) days after the end of the Agreement.

8.9. If the partnership between the Omnisend and Partner terminates due to the Partner’s fault (i. e. in violation of the any part of the Agreement or applicable laws), then the payment of Fees to the Partner shall be terminated and Omnisend shall be entitled to claim a refund of the Fees received by the Partner.

Partner Type Revenue Generating Activity  Revenue Share  Terms 
Affiliate Partner Affiliate Link 20% recurring lifetime revenue share every month. Performance-based bonus system in addition. The revenue share is paid from paid plans for as long as the client stays with Omnisend and the Affiliate remains a part of the Omnisend Affiliate program.
Freelancer/Agency Partner Program Partner Referral Form

Creation of a paying store via the Partners’ Portal

Direct introduction to your Partner manager

20% ongoing revenue share of the Merchant’s monthly Qualified Revenue. Recurs monthly as long as the Merchant remains a paying Omnisend Customer and you remain an active Freelancer/Agency Partner.

8.10. All payments of the Fees are subject to risk analysis considerations and Omnisend standard anti-money laundering procedures and policies. Notwithstanding anything to the contrary in this Agreement, Omnisend shall not be responsible to pay any referral payments:

8.10.1. related to revenues that have been refunded to Merchants by Omnisend;

8.10.2. for a Referred Merchant created or owned in whole or in part by a Partner;

8.10.3. for a Referred Merchant that is already engaged in an active sales cycle with Omnisend;

8.10.4. related to revenues that have been subject to chargebacks; or

8.10.5. to a Partner engaged by Omnisend to perform services in any capacity other than pursuant to this Agreement.

8.11. Notwithstanding the foregoing, Omnisend has no obligation to remit payments to Partner to the extent aggregate Net Revenue payments are not greater than one hundred dollars (100 USD); in which event, such amount (the “Roll-Over Amount”) shall become payable to the Partner in the next month aggregate Net Revenue payments, including the Roll-Over Amount, if any, are greater than or equal to one hundred dollars (100 USD).

9. Privacy Policy and Processing of Personal Data

9.1. Omnisend shall be acting as the controller of the personal data in relation to the data provided by the Partner during the registration to Partners’ Portal.

9.2. Omnisend may send direct marketing messages to the Partner. For more information about this please see our Privacy Policy.

9.3. When providing the Services for the Partner which participates in Freelancer/Agency Partner Program, Omnisend shall be acting as a sub-processor of personal data acting on behalf of the Partner and shall process and store personal data controlled by the Partner’s customer only as long as the Services are provided. Such processing is governed by the separate agreement between the Parties. Moreover:

9.3.1. Provisions related to the protection and processing of the personal data being processed are set out in the Privacy Policy which is published on the Website. We may use and disclose your information in connection with provision of the Services, according to our Privacy Policy. From time to time, we may modify the Privacy Policy, which modifications shall become effective once posted on the Privacy Policy;

9.3.2. The Partner undertakes to ensure that the processing of personal data controlled by its customer, which is necessary for the purposes of using the Services, does not infringe the rights and legitimate interests of data subjects or other third parties. Accordingly, the Partner and its customer shall bear all the associated risks. The Partner will have access to Target Communications (as defined in the Terms), Target Data (as defined in the Terms) and other data contained in its customer’s account. The entire process and a manner for a Partner to access this data is described in more detail in the Privacy Policy;

9.3.3. Omnisend may from time to time log in into Partner’s account in the Partners Portal, but only to fulfil its obligations under the concluded agreement (e. g. to help Partner to set specific settings, etc.). Such access will be conducted strictly on the manner described in the Privacy Policy.

10. Survivability and Amendment of the Terms

10.1. As the Services are constantly improving and evolving to ensure a more convenient and safer use, we reserve the right to amend these Partner Terms unilaterally.

10.2. We will inform Partner thirty (30) calendar days prior major changes of the Services, Terms or Partner Terms, however Omnisend reserves a right to not inform Partner about minor changes. Omnisend decides which changes are major at its sole discretion.

10.3. By continuing the use of the Services (including use of the Partners Portal), the Partner acknowledges that he has acquainted itself with such amendments and fully agrees to them.

10.4. The Services ordered before the amendment of the Partner Terms shall be provided in the order and within the terms established in the Partner Terms in force at that time.

11. Severability

11.1. If it turns out that a section of the Partner Terms isn’t enforceable, then that section will be removed or edited as little as necessary, and the rest of the Partner Terms will still be valid.

12. Notices

12.1. Omnisend shall send notices and otherwise keep in touch via the email address or telephone number, provided during the Partner’s registration, or in any other way the Partner can be reached.

12.2. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Email: [email protected], our customer support chat (for more general questions) or any other addresses as we may later post on the Website or in any other form.

12.3. The Parties agree that the presence of a copy of an e-mail or other message addressed to the Customer on our server (database or other device storing the relevant information) shall be an appropriate proof of the sending of any information

13. Force Majeure 

13.1. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.

14. Relationship of the Parties

14.1. The relationship of the Parties established by the Agreement is that of independent contractors, and nothing contained in the Agreement shall be construed to create a joint venture or partnership between the Parties or to give either Party the power to act as agent for the other or to enter into any agreement on behalf of the other Party.

14.2. Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

14.3. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.

15. Entire Agreement

15.1. This Agreement, including all schedules, exhibits, attachments, etc. thereto, sets forth the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, affiliate, partner, employee or representative of any Party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the Parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights, or remedies under or by reason of this Agreement.

16. Assignments

16.1. Partner may not assign any of its rights under the Agreement to anyone else. We may assign our rights to Affiliate, any other individual or entity at our discretion.

17. Equitable Relief

17.1. If you violate the Agreement, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.

18. Choice of Law and Jurisdiction

18.1. The laws of the Republic of Lithuania will apply to any dispute related to the Agreement.

18.2. All disagreements between Omnisend and the Partner regarding the implementation of the Agreement shall be resolved through negotiations. If the Parties fail to resolve the dispute through negotiations, within thirty (30) thirty days from the initiation of negotiations, such dispute shall be finally settled in the courts in accordance with the laws of the Republic of Lithuania.

19. Disclaimers and Final Provisions

19.1. Omnisend is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third-parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, regardless of its similarity to Partner’s products or services, provided that Omnisend does not use Partner’s Confidential Information in so doing.

19.2. Partner and its affiliates covenant not to assert patent infringement claims against Omnisend, Affiliates, or Omnisend products and Services.