CallRail Agency Partner Program Agreement
Revised November 15, 2018
Please read this agreement carefully, it’s an agreement between you (the Agency Partner) and CallRail. To participate in our Agency Partner Program, you must read and agree to these terms.
We may occasionally update these terms. When we do, we’ll notify you using the email address you’ve provided.
- “Agreement” means this Agency Partner Program Agreement and all materials referred or linked to in here.
- “Commission Period” means the twelve (12) months from the date of the first invoice issued by us to the End User.
- “CallRail Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
- “CallRail Products” means both the Subscription Service and Other Products.
- “Customer Terms of Service” means the terms and conditions located at https://www.callrail.com/legal/, which may be modified from time to time.
- “Commissionable Revenue” means Qualified Revenue received during the End User’s Commission Period.
- “End User” means the authorized actual user of the CallRail Products or the party on whose behalf you use the CallRail Products.
- “End User Data” means all information that End User, or you acting on End User’s behalf, submits or collects via the CallRail Products and all materials that End User, or you acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the CallRail Products.
- “Free Trial” means the period of time in which a prospect can use our services before being required to pay for services.
- “Agency Partner Program” means our partner program as described in this Agreement.
- “Program Policies” means the policies applicable to partners which we have published at ???.
- “Qualified Revenue” means any fee (including base charges, per-number fees, per-minute fees, toll-free surcharges, SMS fees, add-on feature fees, and call transcription fees) actually paid to us by an End User or by Partner for an End User for the Subscription Service. Qualified Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds, (ii) shall exclude revenue from End Users on a non-standard pricing plan, and (iii) shall exclude any professional services or fees for third-party products or services.
- “Revenue Share” means an amount equal to a percentage of Commissionable Revenue paid to us by an End User or Partner. This percentage is set based on the pricing plan the End User agrees to upon sign-up, or a separate addendum to this agreement between you and us.
- “Subscription Service” means our web-based call analytics software that is subscribed to, and developed, operated, and maintained by us, accessible via https://www.callrail.com or another designated URL. The Subscription Service does not include any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
- “We”, “us”, “our”, and “CallRail” means CallRail, Inc.
- “You” and “Partner” means the party, other than CallRail, entering into this Agreement and participating in the Partner Program.
2. CallRail Agency Partner Program
The CallRail Partner Program is designed for marketing services professionals, creative services firms, ad agencies, PR firms, marketing agencies, web design and development companies, and other marketing professionals who provide marketing services to other companies. Agency Partners can benefit from a variety of services and resources provided by CallRail. Agency Partners may generate income by reselling the CallRail Service and earning commissions on each sale that results.
Agency Partner agrees to join, and CallRail agrees to accept Agency Partner into, the CallRail Agency Partner Program as provided in this Agreement, and each party agrees to perform its obligations under and act in compliance with this Agreement.
This Agreement does not create an exclusive agreement between you and us. You will have the right to work with and recommend products and services similar to ours, and likewise, we have the right to work with and recommend products and services similar to yours.
4. Partner Transactions
- Agency Partner Rights and Obligations. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to provide End Users access to use the CallRail Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. We may provide limited sales support to you, such as occasional participation on a call with you and a prospect. You will comply with the terms and conditions of this Agreement at all times, including the Program Policies, which are incorporated herein by reference. The Program Policies may include requirements that Partner must complete in order to qualify for a certain partner tier.
- Agency Partner Program Limits. We will pay you a Revenue Share for the Commission Period as long as the End User maintains a subscription to the Subscription Service during the Commission Period, and provided that you remain eligible to receive a Revenue Share pursuant to the terms of this Agreement.
- Eligibility. To be eligible for a Revenue Share, a customer must be accepted in accordance with the ‘Customer Acceptance’ section. You are not eligible to receive a Revenue Share based on transactions with a CallRail Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to us; or (iii) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you. We may discontinue Revenue Share payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.
- Customer Acceptance. After the Free Trial begins, but no later than fourteen (14) days following the End User’s first invoice, you must notify CallRail of your involvement with the End User by adding an Agency Partner user to the End User’s CallRail account. The Agency Partner user must be added with the same Agency Partner email domain registered with CallRail via the Agency Partner Agreement. We typically accept a customer who, in our sole determination, (i) is a new potential customer and (ii) is not a pre-existing customer (iii) is not currently and has not in the last 90 days been involved with the sales process with us. We may choose not to accept a customer at our discretion. A customer is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) after this Agreement is expired or terminated, or (iv) if the Agency Partner is not properly associated with the Subscription Service.
- Acceptable Use. You will take all reasonable steps to ensure that End Users do not use the CallRail Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the CallRail Products in violation of the Customer Terms of Service, then you will immediately notify us in writing.
5. Revenue Share and Payment.
In order to receive payment, you must: (1) have fully executed an Agency Partner Program Agreement with CallRail (this agreement must be signed by you and us, typically via an e-signature), and (2) submit to us a completed Form W-9 (for U.S.-based companies) or Form W-8BEN (for non-U.S. based companies.) The account information form, along with a Form W-9 or Form W-8BEN must be returned to us by email at firstname.lastname@example.org. You must comply with all the requirements in this section in order to receive payment, and failure to do so will result in non-payment by us.
We will pay the Revenue Share amount due to you within forty-five (45) days after the end of each fiscal quarter in an amount equal to the Commissionable Revenue we recognize as revenue from Partner Transactions during such quarter, times the Revenue Share percentage. (For example, pre-payment in full by an End User for an annual commitment will be recognized by us as revenue quarterly on a pro-rata basis for the length of time the Subscription Service was provided during each quarter during the annual term, and you will receive the Revenue Share on that same quarterly pro-rata basis.) The Revenue Share will be paid in USD. We will not pay more than one Revenue Share or other similar referral fees on any given partner sale (unless we choose to in our discretion) and we may apportion a Revenue Share if more than one of our partners has contributed to the close of a sale.
You are responsible for payment of all taxes applicable to the Revenue Share. Any amount paid to you by us may be offset by any amount you owe to us.
6. Partner Training and Support
We will make available to you the resources at https://www.callrail.com/wp-content/upload/2018/12/CallRail-Agency-Partner-Program.pdf. We may also choose to make benefits available dependent on the applicable partner tier and status. We may change or end these benefits at any time without notice.
You grant to us a non-exclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Agency Partner Marks”) in connection with the Agency Partner Program and this Agreement.
During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Partner Program and this Agreement; and (iii) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
8. Proprietary Rights
- CallRail’s Proprietary Rights. No license to any software is granted by this Agreement. The CallRail Products are protected by intellectual property laws. The CallRail Products belong to and is the property of us or our licensors (if any). We retain all ownership rights in the CallRail Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the CallRail Content, or the CallRail Products in whole or in part, by any means, except as expressly authorized in writing by us. CallRail, the CallRail logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement. We encourage all customers and partners to provide suggestions for improving the CallRail products. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the CallRail Products, without payment to you.
- End User’s Proprietary Rights. As between you and End User, End User retains the right to access and use the End User portal associated with the CallRail Products regardless of whether you placed the order with us for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If we deem it to be necessary based on the relationship status between you and the End User or the particular situation, we may communicate directly with the End User and/or may port ownership of the portal and related assets (including phone numbers) associated with the CallRail Products to the End User.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
10. Term and Termination
- Term. This Agreement will apply for as long as you participate in the Agency Partner Program, until terminated.
- Termination Without Cause. Both you and we may terminate this Agreement on sixty (60) days written notice to the other party.
- Termination for Cause. We may terminate this Agreement and/or suspend your or the End User’s access to the CallRail Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (v) immediately if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us, or (vi) immediately, if we determine that you are acting in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
- Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement without cause by us or by you with cause, shall not affect our obligation to pay you a Revenue Share, so long as the related payment by the End User is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on End User payments recognized by us after thirty (30) days after the date of such termination or expiration. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Revenue Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Revenue Share after expiration or termination of this Agreement.
11. Partner Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Partner Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Partner Marks.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Partner Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
13. Disclaimers; Limitations of Liability
- Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE CALLRAIL PRODUCTS, CALLRAIL CONTENT, THE PARTNER PROGRAM, OR THE OPTIONAL PARTNER PROGRAMS FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE CALLRAIL PRODUCTS AND OPTIONAL PARTNER PROGRAMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE CALLRAIL PRODUCTS AND THE OPTIONAL PARTNER PROGRAMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED PARTNER TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
- Amendment; No Waiver. We may update and change any part or all of this Agreement. If we update or change this Agreement, the updated Agreement will be posted at https://www.callrail.com/partners/agreement/ and we will let you via an email using an email address you’ve provided. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically.If you do not agree with a modification to this Agreement, must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement shall be governed by the laws of the State of Georgia, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Atlanta, Georgia.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
- Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email, phone calls, or SMS messages), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the CallRail Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the CallRail Products to prohibited countries or individuals or permit use of the CallRail Products by prohibited countries or individuals.
- Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.To CallRail, Inc.: CallRail, Inc., 100 Peachtree St NW Suite 2700, Atlanta GA 30303, U.S.A. Attention: General CounselTo you: your address as provided in our partner account information for you.
We may give electronic notices by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
- Entire Agreement. This Agreement is the entire agreement between us for Partner Program and supersedes all other proposals and agreements (including all prior versions of the CallRail Partner Program Agreement, if any), whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the CallRail Products or dependent on any oral or written public comments made by us regarding future functionality or features of the CallRail Products.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Program Policies. We may change the Program Policies from time to time by updating our website. Your participation in the Partner Program is subject to the Program Policies, which are incorporated herein by reference.
- No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the CallRail Products, our trademarks, or any other property or right of ours.
- Sales by CallRail. This Agreement shall in no way limit our right to sell the CallRail Products, directly or indirectly, to any current or prospective customers.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Revenue Share and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.