Partner Program Agreement

By signing up for the Partner Program, you are agreeing to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.), and Vortx, Inc. (“Vortx”) (together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at http://partners.vortx.com/t-terms.aspx. Vortx reserves the right to update and change the Agreement by posting updates and changes here: http://partners.vortx.com/t-terms.aspx. If a significant change is made, Vortx will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

This Agreement addresses different types of Partner activities. Part A applies to all Partners. Part B applies to Affiliates. Part C applies to Listed Developers. Part D applies to Marketplace Authors. Part E applies to Resellers.

By signing up to be a Vortx partner, you agree that you have read, understood and accepted all of the terms and conditions contained in this Agreement and Vortx’s Privacy Policy. Some types of Vortx Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Part A – Terms Applicable to All Partners

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Add-on” means the 'widget' that a Developer develops, owns or operates, and which interacts with the Vortx products and/or services.

“Customer” means a customer of the Merchant (i.e. shopper).

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.>/p>

“Merchant” means an individual or business that uses any Vortx product or service to sell products or services.

“Merchant Agreement” means the agreement entered into between a Partner and the Merchant governing the Merchant’s use of the Partner’s services, including, if applicable, the installation and use of an add-on.

“Merchant Data” means information (including personal information) relating to a Merchant, including but not limited to business, financial and product information and any Customer Data.

“Merchant Store” means the Merchant’s commerce presence hosted by, built by, or powered by a payment application developed by Vortx.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Vortx Partner Program. The different types of Partners are listed below:

An “Affiliate Partner” is a Partner who has registered for a Partnership and who promotes the service by accepting AspDotNetStorefront end-users into their client list. An "Affiliate Partner" takes on the role of primary provider (of software services and support) and makes Vortx hosting the default option. It is not mandatory for clients of Affiliate Partners to host with Vortx, but there are countless motivators for both the Partner and the client.

A “Listed Developer” is a Partner who has registered for a Partner Account and pays to be listed as developer of custom solutions for Customers on the basis of Vortx products and services.

A "Marketplace Author" is a Partner who has registered for a Partner Account and develops add-ons for Customers that work in conjunction with Vortx products and services.

“Partner Account” means a Vortx Partner Program account.

“Partner Manager” means the Vortx employee designated by Vortx from time to time as the Partner’s primary Vortx contact.

“Payment Period” means the period for the payment of Fees owing to Partner by Vortx, as set out in this Agreement.

“Partner Program” means Vortx’s program for Partners that provides exclusive access to resources and the opportunity to earn revenue share.

"Affiliated Merchant” means any unique Merchant that: (a) has registered and paid for a Vortx product or service; and (b) was introduced by an Affiliate that actively promoted the product or service.

“Service” means any Vortx hosted commerce platform available from Vortx, that is used by Merchants to sell products and services and manage their businesses across sales channels.

“Vortx Marketplace” means the Vortx website/pages where Merchants can select add-ons for their Merchant Store.

“Vortx Creative” means any marketing and/or promotional materials relating to Vortx and/or Vortx brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Vortx Brands and Trademarks.

“Vortx Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, Vortx; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“Vortx Brands and Trademarks” means the trademarks, logos, service marks and trade names of Vortx Inc., whether registered or unregistered.

“Websites” means any websites that are managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

“Updates” means bug fixes, updates, upgrades, service packs, upgrade packs, enhancements, modifications and new releases or versions of the Vortx products and services.

2. Partner Responsibilities

2.1. Marketing Activities

Partner shall bear all costs and expenses related to Partner’s marketing or promotion of Vortx or any Vortx Related Entity, and, as applicable, Partner’s other products or services associated with Partner’s participation in the Partner Program (Collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Vortx in its sole discretion.

In no event shall Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Vortx to send emails regarding the offering of Vortx and Vortx Related Entities to the individuals on the Opt-in List (and Vortx may, in its sole discretion, allow Partner to send such emails). In conducting all Partner Marketing Activities, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.

Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Vortx and/or Vortx Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Vortx, Vortx Related Entities, the Service and/or the Vortx platform; and (iii) not imply that such emails are being sent on behalf of Vortx or Vortx Related Entities.

A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Vortx and/or Vortx Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Vortx and/or Vortx Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Vortx and/or Vortx Related Entities; (iv) copy, resemble or mirror the look and feel of Vortx’s websites, Vortx Trademarks or Services or otherwise misrepresent Partner’s affiliation with Vortx and/or Vortx Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Vortx and/or Vortx Related Entities, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Vortx or the Partner’s services, (b) 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 (c) violates any intellectual property or other proprietary rights of any third party.

2.2. Compliance with Laws

In addition to, 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 applicable laws, rules and regulations.

2.3. Partner Duty to Inform

Partner shall promptly inform Vortx of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Vortx and/or the Vortx Related Entities by any third party.

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2.5. Other Partner Terms

If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.

To become a Partner, Partner must create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Vortx may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Vortx will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Vortx cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.

If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.

Partner acknowledges and agrees that Partner will be responsible for the performance of all of 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 Partner.

Partner acknowledges and agrees that Vortx may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Vortx’s website, available at Vortx.com/t-partnersterms.aspx and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Vortx will provide reasonable notice by email, posting a notice on any Vortx Partner Blog and/or in the Partner Portal. Partner’s continued participation in the Vortx Partner Program after the amended Partner Program Agreement is posted to Vortx’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Vortx Partner Program.

Partner acknowledges and agrees that Partner’s participation in the Vortx Partner Program, including information transmitted to or stored by Vortx, is governed by the Vortx Privacy Policy found at Vortx.com/t-privacy.aspx.

Other than the limited license to use the Vortx Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the Vortx Trademarks and/or Vortx Related Entities’ names or trademarks (meaning any names and/or trademarks or any other protected marks associated with the Vortx Service, Vortx Inc. or the Vortx Related Entities) 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, sub-domains and page URLs).

Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Vortx Trademarks and/or the names or trademarks of any Vortx Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Vortx Trademarks or the names or trademarks of any Vortx Related Entity.

3.1 Revenue Sharing Plans

Subject to: (i) Partner’s compliance with this Agreement, and (ii) the Vortx Revenue Sharing Plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Vortx (the “Fees”) from appropriate activities.

3.2 Profit Sharing Payments

  1. Fees due to Partner under the Vortx Revenue Sharing Plan will be created by Vortx once per month upon receipt of payment from the Merchant, for each month that the Referred Merchant Store is actively using the referred product or service. Fees for items with recurring billing will be created by Vortx upon receipt of payment for each month that the item is active on, or via, the Merchant Store.
  2. Vortx distributes Fees owing to its Partners once each month (each such period, a “Payment Period”). The Fees agreed will be paid to the Partner no later than the 10th of the month beyond the Payment Period in which the product or service was delivered.

3.3 Payment Information

  1. Payment rendered for a Vortx Service or Subscription or through the Add On Marketplace constitutes agreement of these terms and conditions. Service or Subscription dues are often automatically renewing. Service or Subscription dues are collected according to the option the user has chosen (by the calendar month or annually) upon the initial purchase. Payments are always made in advance of any Service or Subscription provided.
  2. Partners and clients are responsible for the timely payment of all fees and for providing Vortx with a valid credit card that is maintained on file with Vortx. All payments for the proceeding billing cycle are due on receipt. Prices offered through Vortx or the Add On Marketplace are subject to change without notice, and Vortx does not provide price protection or refunds in the event of a promotional offering or other reduction in price.
  3. If a credit card is declined in the process of purchasing an Add On (recurring or otherwise) from the Marketplace, Vortx will notify by the primary email address on file with the account, as well as (potentially) a courtesy call to inform that the card on file was declined. In the event of non-payment of monthly or otherwise recurring Marketplace Service or Subscription, the Service or Subscription may be suspended at the sole discretion of Vortx without possibility of refund. The client subscribing to a Vortx Service or Subscription agrees to hold Vortx harmless in the event that a suspension or cancellation of service from non-payment results in loss of revenue or other damages. If a Service or Subscription is suspended or cancelled due to non-payment, the Partner associated with the Service or Subscription will be notified by email of the suspension or cancellation.
  4. If a credit card is declined in the process of renewing a monthly or otherwise recurring Service or Subscription, the client will be notified by the primary email address that we have on file with the account, as well as (potentially) a courtesy call to inform that the card on file was declined. In the event of non-payment of monthly or otherwise recurring Service or Subscription charges, service may be suspended or cancelled at the sole discretion of Vortx without possibility of refund. The client subscribing to a Vortx service agrees to hold Vortx harmless in the event that a suspension or cancellation of service from non-payment results in loss of revenue or other damages.
  5. If contact cannot be established with the account holder in the event of non-payment for a Vortx (or Add On Marketplace) Service or Subscription, the account will be charged for the proceeding billing cycle, service may become suspended or cancelled at the sole discretion of Vortx, and an invoice sent to the primary contact listed on the account for remittance of payment, due upon receipt.
  6. Cancellation of any service or subscription offered through Vortx or the Add On Marketplace must be submitted in writing to billing@vortx.com 30 days or more before the effective date of the cancellation. Providing fewer than 30 days notice of cancellation may result in one additional billing cycle’s worth of charges to the account before the cancellation is effective.


3.4 Additional Payment Information

  1. All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.
  2. Notwithstanding anything to the contrary in this Agreement, Vortx shall not be responsible to pay any Fees:
    • related to revenues that have been refunded to Merchants by Vortx;
    • for a Referred Merchant created or owned in whole or in part by a Partner;
    • related to fraudulent sales;
    • related to revenues that have been subject to chargebacks; or
    • to Partners who are employed by or who are contractors of Vortx.
  3. If any Fees paid by Vortx are subsequently discovered to be subject to one or more of the exclusions set out in this Agreement, or to have been paid in error, Vortx shall have the right, at its sole discretion, to: (a) increase the amount of payments due from Partners described in Section 3.2.1; (b) reclaim any Fees paid to Partner in error; or (c) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Vortx, Partner shall pay to Vortx the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
  4. Vortx reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on any Vortx blog and/or in the Partner Portal. In the event of any disputes over Fees, Vortx’s determination will be final and binding.

4. Termination

4.1. Termination

Unless otherwise specified in the Agreement, either Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to the other Party.

Fraudulent or other unacceptable behaviour by Partner, as determined by Vortx in its sole discretion, may result in one or more of the following actions being taken by Vortx: (a) termination of Partner’s affiliation with Merchants within the Partner Account; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Account entirely without notice to, or recourse for, Partner.

Vortx reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Vortx will provide reasonable notice by email, posting a notice on a Vortx blog and/or in the Partner Portal.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Vortx Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Vortx Creative and/or any Vortx Trademarks on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Portal, or to receive any payments of Fees hereunder, unless otherwise determined by Vortx in its sole discretion.

Upon termination, Vortx maintains the right to offer affiliated merchants the freedom to transfer to an active Affiliate.

5. Intellectual Property Rights

5.1. Vortx Creative

All Vortx Creative will be solely created and provided by Vortx unless otherwise agreed to by Vortx in writing in advance. Vortx will provide Partner with copies of or access to Vortx Creative. By using the Vortx Creative, Partner indicates acceptance of our Vortx Trademark Usage Guidelines and understands that a violation of these guidelines or this Agreement will result in the termination of licensing and/or permission to use the Vortx Creative. The Vortx Creative is provided “as is” and without warranty of any kind.

Partner may display Vortx Creative on the Websites solely for the purpose of marketing and promoting the Service and any Vortx brands promoted by Vortx and by Vortx Related Entities during the term of this Agreement, or until such time as Vortx may, upon reasonable prior notice, instruct Partner to cease displaying the Vortx Creative. Partner may not alter, amend, adapt or translate the Vortx Creative without Vortx’s prior written consent. Nothing contained in any Vortx Creative shall in any way be deemed a representation or warranty of Vortx or of any of Vortx Related Entity. The Vortx Creative shall at all times be the sole and exclusive property of Vortx and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Vortx to make changes or modifications to the Vortx Creative.

5.2. Vortx Trademarks

During the term of this Agreement, Vortx hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Vortx Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Vortx’s Trademarks only as permitted hereunder; (b) it will use the Vortx Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Vortx in writing from time to time, including but not limited to the Vortx Trademark Usage Guidelines; (c) the Vortx Trademarks are and shall remain the sole property of Vortx; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Vortx Trademarks and all use thereof by Partner shall inure to the benefit of Vortx; and (e) Partner shall not, now or in the future, apply for or contest the validity of any Vortx Trademarks; and (f) Partner shall not, now or in the future, apply for or use any term or mark confusingly similar to any Vortx Trademarks.

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5.4. Proprietary Rights of Vortx

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

6. Confidentiality

“Confidential Information” shall include, but shall not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, Merchant Data, Customer Data, product designs, sales, costs, price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary.

Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement. Each Party agrees that it shall take all reasonable steps, at least substantially 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, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained 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, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

7. Disclaimer of warranty

The Vortx Partner Program, the Service, the Vortx Trademarks, the Vortx Creative, and the Vortx API/WSI are provided “as-is”. Vortx makes no warranties hereunder, and Vortx expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Vortx further disclaims all representations and warranties, express or implied, that the Service, the Vortx API/WSI, the Vortx Trademarks or the Vortx Creative, and the Vortx API/WSI may not satisfy all of Partner’s or Merchant’s requirements and may not be uninterrupted, error-free or free from harmful components.

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

Vortx shall have no liability with respect to the Vortx Partner Program, the Service, the Vortx API/WSI, the Vortx Trademarks, the Vortx Creative or Vortx’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Vortx API/WSI, the Vortx Trademarks, the Vortx Creative, or Partner’s participation or inability to participate in the Vortx Partner Program even if Vortx has been advised of the possibility of such damages. In any event, Vortx’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Vortx during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and a Partner is strictly between the Merchant and the Partner, and Vortx is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Vortx be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from the Partner’s relationship with any Merchant. These limitations shall apply even if Vortx has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Vortx and any Vortx Related Entities 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 (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Vortx and Vortx Related Entities granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s use of the Vortx API/WSI; (e) Partner’s breach of any term of this Agreement or a Merchant Agreement; (f) any third party claim that Partner’s products or services, including without limitation any Application, Theme, or Channel Platform infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Partner’s products or services, including without limitation, any Application or Theme or Channel Platform; and (h) Partner’s relationship with any Merchant.

8.3. Notice of Indemnification

In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Vortx under this Agreement and under applicable law, Vortx shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (b) immediately terminate this Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by Vortx in connection with such violation, in accordance with the provisions of this Section 8.

9. General provisions

9.1. Force Majeure

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), labour 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.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

9.3. Non-Exclusivity

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 into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

9.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to legal@Vortx.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in the Partner Account, and for Vortx to 2245, Ashland Street, Ashland, Oregon, 97520, Attention: Legal Department.

9.5. No Waiver

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.

9.6. Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced herein, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

9.7. Assignment

All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Vortx shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Vortx’s prior written consent, to be given or withheld in Vortx’s sole discretion.

9.8. Applicable Laws

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Oregon with respect to any dispute or claim arising out of or in connection with this Agreement.

9.9. Patent Non-Assertion

Partner and its affiliates covenant not to assert patent infringement claims against Vortx, Vortx Related Entities, or Vortx products and services.

9.10. Acceptance

By agreeing to become a Partner, Partner hereby fully agrees with all terms and provisions of this Agreement, including all documents linked to herein.

9.11. Competitive or Similar Materials

Vortx 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, including without limitation any Application or Theme, regardless of their similarity to Partner’s products or services, provided that Vortx does not use Partner’s Confidential Information in so doing.

9.12. Feedback

If Partner provides any feedback (including identifying potential errors and improvements) to Vortx concerning the Partner Program, the Vortx APIs, the Vortx Creative or any aspects of the Service (“Feedback”), Partner hereby assigns to Vortx all right, title, and interest in and to the Feedback, and Vortx is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, Vortx APIs, the Vortx Creative and/or the Service and to create other products and services. Vortx will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.