This Partnership Agreement (the “Agreement”) is entered into between Stay.Ai, Inc. (“Company”) and the partner who applied for and was approved for partnership by the Stay.Ai team (“Partner”) at the date of agreeing to the following (“Effective Date”). Company and Partner agree as follows:
- Services. Partner agrees to consult with and advise Company from time to time, at Company’s request (the “Services”). The Services include but are not limited to, the items set forth on EXHIBIT A hereto.
- Consideration. Company will pay Partner for the Services as follows and provide the resources that are outlined in EXHIBIT A
a) Referral Fee. Company will pay Partner the Referral Fees as set forth on EXHIBIT A. Payment of any Referral Fees will be in accordance with EXHIBIT A hereto. Unless otherwise agreed upon by the parties, payment to Partner of undisputed Referral Fees will be paid on a quarterly basis, within 30 days after the end of each fiscal quarter. Upon termination of this Agreement for any reason, Company will pay Partner any undisputed Referral Fees that have been earned but unpaid as of the date of termination.
- Ownership. Company owns, and Partner hereby assigns to Company, all intellectual property and related rights (including all rights to priority and rights to file patent applications and/or registered designs) throughout the world that arise in whole or part out of, or in connection with, the Services or any Proprietary Information (“Inventions”).
- Proprietary Information. Partner agrees that all Inventions and other business, technical and financial information (including, without limitation, the identity of and information relating to Company’s customers or employees) Partner obtains from or assigns to Company, or learns in connection with the Services, constitute “Proprietary Information.” Partner will hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. However, Partner will not be so obligated with respect to information that (i) Partner can document is or becomes readily publicly available without restriction through no fault of Partner, or (ii) that Partner knew without restriction prior to its disclosure by Company. Upon termination or as otherwise requested by Company, Partner will promptly return to Company all items and copies containing or embodying Proprietary Information. Notwithstanding the foregoing nondisclosure obligations, pursuant to 18 U.S.C. Section 1833(b), Partner will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
a) Personal Information. With respect to any Proprietary Information that constitutes personal data, personal information, personally identifiable information or similar information under applicable privacy or data security laws (collectively, “Personal Information”), Partner shall not x) sell Personal Information or (y) retain, use or disclose Personal Information for any purpose other than the specific purpose of providing the Services. For the avoidance of doubt, the foregoing prohibits Partner from “selling” Personal Information, as defined in the California Consumer Privacy Act of 2018 (as amended, the “CCPA”), and from retaining, using, or disclosing Personal Information outside of the direct business relationship between Partner and Company or for a “commercial purpose” (as defined in the CCPA). Partner hereby certifies that it understands the obligations under this Section 4(a) and will comply with them.
i) Partner shall use reasonable security measures appropriate to the nature of any Personal Information in its possession or control to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure.
ii) The parties acknowledge and agree that Partner’s access to Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement.
iii) If any individual contacts Partner to make a request pertaining to their Personal Information, Partner shall promptly forward the request to the Company and shall not respond to the individual except as instructed by Company. Partner shall promptly take such actions and provide such information as Company may request to help Company fulfill requests of individuals to exercise their rights under the applicable privacy or data security laws, including, without limitation, requests to access, delete, opt-out of the sale of, or receive information about the processing of, Personal Information pertaining to them. Partner agrees to cooperate with Company to further amend the Agreement as may be necessary to address compliance with applicable privacy or data security laws.
- Solicitation. Partner agrees that during the term of this Agreement and for one year thereafter, Partner will not encourage or solicit any employee or consultant of Company to leave Company for any reason.
- Termination. Either party may terminate this Agreement at any time, for any reason, by giving the other notice. In addition, this Agreement will automatically be terminated if the Company has not requested that the Partner render any Services for any consecutive 12-month period. Sections 2 through 9 of this Agreement and any remedies for breach of this Agreement will survive any termination or expiration.
- Relationship of the Parties; Promotional Rights. Notwithstanding any provision hereof, for all purposes of this Agreement, each party will be and act as an independent contractor and not as a partner, joint venturer, agent or employee of the other and will not bind nor attempt to bind the other to any contract. Partner will not be eligible to participate in any of Company’s employee benefit plans, fringe benefit programs, group insurance arrangements or similar programs. Company may use and authorize the use of Partner’s name, likeness and biographical information in promotional materials, websites and the like. Because Partner is an independent contractor, Company will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of Partner. Partner is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of Services and receipt of fees under this Agreement. Partner is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Services under this Agreement. No part of Partner’s compensation will be subject to withholding by Company for the payment of any social security, federal, state or any other employee payroll taxes. Company will regularly report amounts paid to Partner by filing Form 1099-MISC with the Internal Revenue Service as required by law. If, notwithstanding the foregoing, Partner is reclassified as an employee of Company, or any affiliate of Company, by the U.S. Internal Revenue Service, the U.S. Department of Labor, or any other federal or state or foreign agency as the result of any administrative or judicial proceeding, Partner agrees that Partner will not, as the result of such reclassification, be entitled to or eligible for, on either a prospective or retrospective basis, any employee benefits under any plans or programs established or maintained by Company.
- No Conflicts; Compliance with Policies and Guidelines of other Institutions. Partner represents and warrants that neither this Agreement nor the performance thereof will conflict with or violate any obligation of Partner or right of any third party. If Partner is affiliated or in the future becomes affiliated with different entities or institutions, such as colleges or universities/research institutes, in the future (each, an “Institution”) and must fulfill certain obligations to any such Institution pursuant to each Institution’s guidelines or policies (“Institution Policies”), then Partner will provide the Company with a list of any such Institution(s) and hereby represents and warrants to the Company that Partner has complied and will continue to comply with any such Institution Policies and will deliver copies of Institution Policies to the Company promptly upon request. If Partner is required to disclose any inventions to an Institution pursuant to applicable Institution Policies, Partner will notify the Company in writing a reasonable amount of time in advance of any such disclosure, specifying the nature of such disclosure.
- Miscellaneous. This Agreement and the Services performed hereunder are personal to Partner and Partner will not have the right or ability to assign, transfer or subcontract any obligations under this Agreement without the written consent of Company. Any attempt to do so will be void. Company will be free to transfer any of its rights under this Agreement to a third party. Any breach of Sections 3, 4 or 5 will cause irreparable harm to Company for which damages would not be an adequate remedy, and therefore, Company will be entitled to injunctive relief with respect thereto in addition to any other remedies. This is the entire agreement between the parties with respect to the subject matter hereof and no changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Any notice will be given in writing by first class mail, fax or electronic mail and addressed to the party to be notified at the address below, or at such other address, fax number or e-mail address as the party may designate by 10 days’ advance written notice to the other party.
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RESPONSIBILITIES, REFERRAL FEE, AND PROGRAM DETAILS
(A.) Partner Responsibilities
Partner agrees to fulfill the following responsibilities in connection with the Services:
- Promote Stay.Ai throughout Partner’s network;
- Provide introductions to merchants when appropriate;
- Act as a reference when necessary; and
- Provide quarterly feedback.
Company may develop and provide to Partner marketing and promotional materials to be given to prospective merchants by Partner (the “Stay.Ai Promotional Materials”). Partner shall make no representations or warranties concerning any of Company’s services, unless such representation or warranty is included in the Stay.Ai Promotional Materials or otherwise authorized in writing by Company.
(B.) Referral Fee
During the term of the Agreement, Company shall pay Partner a Referral Fee for any referral made by Partner to a Qualified Merchant as follows:
- Referral Fee: 10% of net revenue which is based on the revenue paid to Company, after the deductions of Shopify’s commission and/or other fees, for qualified merchants (see description below) driven directly from the Partner to the Company. The Referral Fee is paid to the partner as compensation for Company subscription services provided to a Qualified Merchant during the first 12 months following the date that such Qualified Merchant first downloaded the Company app from the Shopify store (the “Download Date”)
“Qualified Merchant” shall mean any individual, entity, or discrete division, segment, or product line of a business that Partner reasonably believes may be interested in engaging Company to provide services, and that becomes a merchant of Company through Partner’s introduction of such prospective merchant to Company during the term of this Agreement; provided that only a prospective merchant who Partner has Registered with Company shall be considered a Qualified Merchant; and provided further that such prospective merchant must become a merchant of Company prior to the earlier to occur of (i) termination of this Agreement and (ii) 12 months following Partner’s introduction of such prospective merchant to Company. “Registered” for purposes of this definition shall mean that Partner has notified Company of the prospective merchant and Company has confirmed that the prospective merchant (A) is not already a merchant of Company and (B) has not previously been the subject of commercial discussions or targeting by Company. Such notification shall include the prospective merchant’s name, email address, mailing address, telephone number, designated contact name and any additional information relating to the potential business opportunity with such prospective merchant that Company reasonably requests.