Certified Partner Agreement

This partner program agreement, which includes as a part thereof the Groundhogg Terms and Conditions, Privacy Policy, any addendum hereto (this “Agreement”), constitutes a fully binding agreement between Groundhogg Inc. (“Groundhogg”, “we”, “us”, “our”) and you with respect to your participation in Groundhogg’s partner program (the “Partner Program”). Should Groundhogg accept your application to participate in the Partner Program as a Partner (as hereinafter defined), you acknowledge and agree that this Agreement shall become effective from the date on which you are notified of your acceptance (the “Effective Date”).

Groundhogg reserves the right to reject your application to participate in the Partner Program for any reason, as determined in our sole discretion. Prior to accepting your application, we may require that you complete certain additional requirements or certifications. If you are accepted to participate in the Partner Program, we will notify you within thirty (30) days from the date you submit your application and you will be required to complete any applicable enrollment criteria as set out in “Program Requirements” under the applicable Program Module Addendum. If we do not notify you that you have been accepted to participate in the Partner Program within thirty (30) days from the date you submit your application, your application is deemed to be rejected.

BY CLICKING THE “I ACCEPT” BOX DISPLAYED AS PART OF THE PARTNER PROGRAM APPLICATION PROCESS, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT AND THAT YOU ACCEPT AND AGREE TO BE BOUND AND TO COMPLY WITH THE TERMS HEREIN. YOU ALSO AGREE TO BE BOUND BY THE GROUNDHOGG TERMS OF USE, AS WELL AS THE PRIVACY POLICY, SECURITY STATEMENT AND DATA PROCESSING ADDENDUM WITH RESPECT TO ANY PERSONAL DATA COLLECTED, USED DISCLOSED, OR IN ANY WAY PROCESSED BY YOU AS A RESULT OF YOUR PARTICIPATION IN THE PARTNER PROGRAM.

1. Partner. The term “Partner” as used in this Agreement shall refer to either a Certified Partner or an Affiliate Partner, as applicable. A “Certified Partner” means a Partner that is subject to the terms and conditions contained in the Certified Partner Program Module Addendum. An “Affiliate Partner” means a Partner that is subject to the terms and conditions contained in the Affiliate Partner Program Module Addendum.
2. Benefits. The term “Program Module Addendum” as used in this Agreement shall refer to either the Certified Partner Program Module Addendum or the Affiliate Partner Program Module Addendum, as applicable. The specifics of the Partner Program are set forth in the applicable Program Module Addendum, which forms an integral part of this Agreement. Each Program Module Addendum will, among other things, outline certain benefits (“Benefits”) that Partner will have access to under the Program. Groundhogg will use reasonable commercial efforts to provide the Benefits as outlined in the applicable Program Module Addendum. Such Benefits may be related to Partner’s access to and/or use of: (a) specified offerings and services; (b) Groundhogg’s licences to plug ins or add-ons (the “Solutions”); (c) technical support, training services, bulletins or other technical information/content (“Technical Services”); and (d) one or more websites or applications owned or controlled by Groundhogg. Note that Partner’s access to, and use of, such Benefits are governed by licenses and terms of use that accompany such products or services (as may be modified from time to time by Groundhogg) and may be subject to additional consents, acknowledgements and fees payable by Partner.
3. Modifications and Amendments by Groundhogg. Upon thirty (30) days prior written notice to Partner, Groundhogg, in its sole discretion, reserves the right to modify or amend the terms of the Partner Program (including the terms and conditions under a Program Module Addendum). Partner’s continued participation in the Partner Program following such notice shall constitute acceptance of the change. If a modification/amendment is unacceptable to Partner, Partner’s only recourse is to terminate its participation in the Program within thirty (30) days of such notice in accordance with Section 6(2).
4. Trademarks, Intellectual Property & Confidential Information.
   • Trademarks. Groundhogg grants Partner a non-exclusive, non-transferable, limited license to use those Groundhogg trademarks, trade names, trademark applications, logos and related images (collectively, the “Marks”) provided under the Partner Program for the sole purpose of exercising its rights and performing its obligations under this Agreement. Groundhogg may revoke this license at any time in its sole discretion. Partner’s use of the Marks shall conform with any trademark usage guidelines provided by Groundhogg, as developed and amended by Groundhogg from time to time, and all use by Partner of the Marks shall inure to the benefit of Groundhogg.
   • Intellectual Property. Any Benefits, including Solutions and Technical Services, provided to Partner in connection with the Partner Program, and any and all copyrights, copyright registrations and applications therefore, moral rights, patents, patent applications, Marks and applications thereof, industrial designs, industrial design applications, inventions, processes, trade secrets, integrated circuit topographies and integrated circuit topography applications and other industrial or intellectual property anywhere in the world, whether or not registered or registrable (collectively, “Intellectual Property Rights”) therein or in associated documents or designs, shall remain the sole and exclusive property of Groundhogg and its licencors.
   • Confidential Information. As used in this Agreement, “Confidential Information” means any and all data and information of a confidential nature, regardless of whether such data and information is specifically identified as “confidential”, including, but not limited to, End User Data (as defined below), business practices, service plans, finance or financial projections, pricing methods, strategic and business forecasts, software, technical information, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects. “End User Data” means any data, information or other materials of any nature whatsoever, provided to a party hereto by an end user of the Solutions, including any data otherwise captured or generated by such Solutions. Confidential Information may be communicated orally, in writing or in any other recorded or tangible form. Neither Groundhogg nor Partner shall make use of, disseminate or in any way disclose the other party’s Confidential Information (including End User Data), except to the extent necessary for such party’s performance of its obligations under this Agreement. Each party shall treat Confidential Information with the same degree of care as it accords to its own confidential information, but in no event less than reasonable care, and may disclose Confidential Information only to those of its employees and contractors who need to know such information and who have previously agreed in writing to be bound by terms and conditions at least as protective of such Confidential Information as set forth in this Section 5(3). Confidential Information does not include information that: (i) is or becomes generally available to the public through no fault or breach of this Agreement by the receiving party; (ii) was in the receiving party’s possession free of any obligation of confidence at the time it was communicated to such party by the disclosing party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of any obligation owed to the disclosing party; or (iv) was developed by employees, agents, or contractors of the receiving party independently of and without reference to any information communicated to such party by the disclosing party.
5. Term and Termination.
   • Term. Unless otherwise set forth in an applicable Program Module Addendum, the term of this Agreement shall be for a term of one (1) year commencing on the Effective Date (the “Initial Term”). This Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
   • Early Termination. Either party may terminate this Agreement by giving at least fourteen (14) days advance written notice to the non-terminating party. Any fees paid by Partner to Groundhogg under this Agreement prior to such early termination, whether terminated by Groundhogg or Partner, shall not be repaid or reimbursed to Partner.
   • Termination of Agreement. Upon the termination or expiration of this Agreement, all Program Module Addendums (and the Benefits granted thereunder) shall similarly terminate and all related licenses to any and all Groundhogg Solutions, Technical Services, Confidential Information or Marks made available as a result of this Agreement shall terminate, and all such materials and tangible embodiments thereof shall be returned or destroyed.
   • Termination of Program Module Addendum. Upon termination or expiration of any Program Module Addendum under this Agreement, all Benefits under such Program Module Addendum shall similarly terminate and all related licenses to any and all Solutions, Technical Services, Confidential Information or Marks made available as a result of such Program Module Addendum shall terminate, and all such materials and tangible embodiments thereof shall be returned or destroyed. For clarity, the termination or expiration of: (i) a particular Program Module Addendum shall not result in the termination or expiration of this Agreement (including other Program Module Addendums in existence under this Agreement as of such date of termination or expiration), unless expressly so provided; and (ii) a particular Benefit granted under a Program Module Addendum shall not result in the termination/expiration of such Program Module Addendum (including other Benefits in existence under such Program Module Addendum as of such date of termination/expiration) unless expressly so provided.
6. Limited Warranties.
   • By Partner. Partner represents and warrants that it will: (i) perform its obligations hereunder and otherwise conduct its business in a manner that reflects favourably upon Groundhogg, the Groundhogg WordPress plugin and associated products; and (ii) refrain from deceptive, misleading or unethical business practices of any kind.
   • By Groundhogg. Groundhogg represents and warrants that it will use reasonable commercial efforts to provide the Partner Program (and the Benefits thereunder) in a professional manner. Any solutions and Technical Services provided by Groundhogg are subject to the warranty provisions contained in the terms of use for such items provided by Groundhogg.
   • Except for the foregoing limited warranties, and to the maximum extent permitted by law, Groundhogg disclaims all other warranties, express, implied or statutory (including warranties of merchantability, fitness and non-infringement), related to the Benefits, Solutions, Technical Services, and any other services provided under this Agreement. Neither Partner, nor any of its employees, agents or contractors, has any right to make any representation, warranty or promise to any third party on behalf of Groundhogg that is not: (i) contained in the Terms of Use provided by Groundhogg, or (ii) specifically authorized in writing by Groundhogg.
7. Indemnity.
   • By Groundhogg. Groundhogg shall defend, indemnify and hold Partner and Partner’s shareholders, directors, officers, employees, agents, successors and assigns (each, an “Partner Indemnitee”) harmless from and against any and all settlements, judgments, awards, fines, penalties, interest, liabilities, losses, costs, damages and expenses, including legal fees and disbursements and court costs (“collectively, “Losses”) incurred by such Partner Indemnitee arising out of or relating to any dispute, action, claim, demand, suit or proceeding (“Claim”) by a third party to the extent that such Losses arise from any allegation in such Claim that Partner’s use of the Solutions or Benefits in compliance with this Agreement infringes any Intellectual Property Rights of a third party, provided that Partner: (i) promptly gives written notice of the Claim to Groundhogg; (ii) gives Groundhogg sole control of the defense and settlement of the Claim; and (iii) provides to Groundhogg all reasonable assistance in defending the Claim.
   • By Partner. Partner shall defend, indemnify and hold Groundhogg and Groundhogg’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “Groundhogg Indemnitee”) harmless from and against any and all Losses incurred by such Groundhogg Indemnitee arising out of or relating to any in Claim by a third party that arise out of: (i) Partner’s breach of this Agreement; or Partner’s actual or alleged violation or infringement of the rights of a third party.
   • Cooperation on Disputes. Partner shall cooperate with Groundhogg with respect to any inquiry, dispute or controversy in which Groundhogg may become involved and of which Partner may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of Partner’s personnel.
8. Limitation of Liability.
   • Except with respect to each party’s indemnification obligations in Section 6, in no event shall either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the Claim, including, without limitation, lost profits, business interruption, lost or damaged data or documentation or liabilities to third parties arising from any source, even if such party has been advised of the possibility of such damages. This limitation is intended to apply without regard to whether other provisions of this Agreement have been breached or have declared void, invalid, illegal or unenforceable.
   • The cumulative liability of Groundhogg to Partner for all claims arising from or relating to this Agreement including, without limitation, any cause of action in contract, tort or strict liability, shall not exceed the total amount of all fees having been paid by Partner to Groundhogg under this Agreement, in each case during the 12-month period preceding the event giving rise to the relevant liability.
   • The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties and shall apply notwithstanding the failure of their essential purpose.
9. Miscellaneous.
   • Survival. Sections 4, 7, 8, and 9 shall survive the expiration or earlier termination of this Agreement or any Program Module Addendum for any reason.
   • Governing Law. This Agreement shall be governed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any Claims arising out of this Agreement will be subject to the exclusive jurisdiction of the provincial and federal courts located in the Province of Ontario.
   • Independent Contractor. Partner is an independent contractor pursuant to this Agreement, and nothing in this Agreement creates any agency, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to create any obligations on behalf of or in the name of the other party, except as expressly provided in this Agreement.
   • Force Majeure. Neither party will be responsible for failure or delay of performance of any obligation under this Agreement 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.
   • Integration. This Agreement sets forth the entire agreement and understanding between the parties, and supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. Subject to Section 2, any modification or amendment to this Agreement must be in writing and signed by both Groundhogg and Partner.
   • Severability. If a court of competent jurisdiction finds any provision of this Agreement or portion thereof to be void, invalid, illegal or unenforceable, the remainder of this Agreement or the application of such provision or portion thereof shall not be affected thereby. Each provision of this Agreement shall be legal, valid and enforceable to the fullest extent permitted by law.
   • Waiver. The waiver by a party of a breach of any provisions contained herein shall be deemed effective only when in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
   • Assignment. Partner shall not assign its rights or delegate its obligations under this Agreement without Groundhogg’s prior written consent and, in the absence of such consent, any purported assignment or delegation by Partner shall be null, void and of no effect.
   • Inurement. This Agreement shall be binding upon and inure to the benefit of Groundhogg and Partner and their successors and permitted assigns.
   • Marketing; Publicity. Partner consents to publication of its name by Groundhogg as an Partner of the Partner Program or any applicable component thereof. Groundhogg authorizes Partner to include in its marketing or product distributions, marketing materials about the solutions that Groundhogg has prepared and provided to Partner for this purpose. Partner shall not alter, modify or otherwise change any material provided to it by Groundhogg. Partner may also use other marketing materials of its own to promote the Groundhogg, but it must adhere to best marketing practices. Partner agrees to refrain from any kind of Spamming and be in compliant with best email practices covered by GDPR and CASL compliance.  Groundhogg shall have sole authority to approve any and all press releases, announcements or similar materials mentioning Groundhogg, and Partner shall have sole authority to approve the use of its name in any marketing or other materials submitted to any public source. Neither party shall unreasonably withhold its approval in connection with a request under this section.
   • Notification. Partner agrees to provide Groundhogg with an e-mail address to which Groundhogg may provide Partner with any relevant notifications or communications, including billing notifications, notices of promotions, invitations to events, and any other matters regarding the administration of the Partner Program. Partner agrees to notify Groundhogg of any changes to this e-mail address, or any other contact information. Partner may provide notifications or communications to Groundhogg via e-mail at outreach@groundhogg.io.

Buying/creating Ads and coupons. Partner shall not purchase any advertisements in English in Canada, unless Partner has obtained Groundhogg’s prior written consent. With respect to the Prohibited Countries, Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trade-marks or domain names that use the Marks, or the names or trade-marks of any entity related to Groundhogg, or any variations or misspellings thereof that may be deceptively or confusingly similar thereto. Partner may purchase advertisements in languages other than English, or advertisements in a country that is not a Prohibited Country; however, Groundhogg reserves the right to prohibit any such advertisements at any time for any reason, in its sole discretion. Partner shall not create coupons or discounts on behalf of Groundhogg unless Partner has obtained Groundhogg’s prior written consent.