Welcome to our Partners Program!!
Here you will find the best practices and ideas to be successful in promoting Linkcard
Who benefits from Linkcard?
Linkcard provides a suite of innovative marketing tools for generating quality leads. As such, it was specially conceived for Marketing professionals of companies and / or marketing agencies in general.
Who is the main Linkcard customer?
The marketing department of companies of dozens to thousands of employees looking to modernize their modus operandi and boost the reach of their customer and employee base to generate new quality leads.
Who are the typical Linkcard Partners?
- Digital Agencies
- Marketing Agencies
- Branding Agencies
- Communication Agencies
- HR Consultants
- Graphic designers
- Management Consultants
- Commercial Consultants
- Coaching Consultants
- Digital Transformation Consultants
Who is the typical Linkcard buyer?
The stakeholders that express a particular interest in Linkcard are:
The Marketing Director
The Director of Innovation
The Head of Digital Transformation
The Head of Communications
The Commercial Director
The Director of Branding
How to boost your revenues with Linkcard?
These are the most common practices
- Creating and using your own Linkcard and associated email signature.
- Offering Linkcard to your network of contacts within companies.
- Publishing regularly on social media (see graphical assets provided below)
- Publishing Linkcard as a service on your website.
- Doing webinars regularly.
- Presenting Linkcard in online trainings, via LinkedIn or at formal institutions such as universities.
You will find below our graphic assets that you can use for promoting Linkcard along with your unique partner link.
Linkcard.app Partnership Program Terms and Conditions
Updated as of April 22, 2020
THESE PARTNER PROGRAM TERMS AND CONDITIONS (the “Terms” or “Agreement”) set forth the terms of participation in the Partnership Program of LINCKARD LLC a company with principal offices located at 2035 Sunset Lake Road, Suite B-2, Newark 19702, County of Newcastle, Delaware, USA (together with the Company Affiliates “Linkcard.app” or the “Company”). A participant in the Linkcard.app Partnership Program (the “Program” or “Partnership Program” or “Influencer Program”) is hereinafter referred to as “Partner” or “You”.
THIS AGREEMENT CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO PARTNER’S PARTICIPATION IN THE LINKCARD.APP PARTNER PROGRAM (THE “PROGRAM” OR “PARTNER PROGRAM” OR “INFLUENCER PROGRAM”). CAREFULLY READ THESE TERMS AND CONDITIONS, WHICH REPRESENT A LEGALLY BINDING AGREEMENT BETWEEN LINKCARD.APP AND YOU. YOU MUST AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT IN ORDER TO BECOME A LINKCARD.APP PARTNER.
BY CLICKING “I AGREE” BOX ON THE APPLICATION OR SIGNING THIS AGREEMENT, YOU AGREE TO SIGN UP TO BE A PARTNER IN THE PROGRAM AND CERTIFY THAT (A) YOU HAVE READ THIS AGREEMENT AND UNDERSTAND ALL OF ITS CONTENT; AND (B) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES AND PROCEDURES INCORPORATED HEREIN BY REFERENCE AND ANY POSSIBLE FUTURE AMENDMENT THEREOF OR ADDITIONS THERE TO; AND (C) YOU HAVE NO CONFLICT OR OTHER RESTRICTION IN ENTERING OR PERFORMING THIS AGREEMENT OR ANY PART THEREOF, INCLUDING RECEIPT OF ALL THE APPLICABLE APPROVALS REQUIRED UNDER THE APPLICABLE LAW FOR THE PERFORMANCE OF THIS AGREEMENT BY YOU.
“Account” shall have the meaning ascribed to it in Section 7.1 herein.
“Ad(s)” means anchor text, banners, button links, text links, or other graphic devices that Linkcard.app makes available to Partner or Partner prepares with the written pre-approval of Linkcard.app, and that is used for linking from the Partner Site to the Site.
“Brands” means the corporate names, trade names, trademarks, service marks, logos, domain names, and other distinctive Brand features of each party, as used and/or secured by such party from time to time.
“Company Affiliates” means any person or entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Company, but only for as long as such control exists.
“Data Processing Addendum” means the Data Processing Addendum, enclosed hereto as Appendix B, executed by you and as may be amended by the Company, in accordance with its terms.
“Data Protection Laws” means any applicable statutes, laws, by-laws, policy rules, treaties, regulations, orders, ordinances, binding European Union directives, common law or judgments, in each case, of any governmental authority, having the force of law, and all judicial interpretations in respect thereof, governing data protection and privacy, including, without limitation, the GDPR (where applicable).
“Designated Links” means links to the Site and/or the Service, which are placed on the Partner’s Site and/or Email communication, pursuant to Linkcard.app’s instructions and which properly use a specially tagged URL link containing a Tracking Mechanism, the format of which is provided by the Company.
“Eligibility Period” means a period, commencing on the day on which a Potential User was referred by Partner to the Site and/or Service through the Tracking Mechanism, and ending upon the earlier of: (a) lapse of 60 days; or (b) the end of the Term.
“End Users” means any individual who has been supplied with a user identification and password to access and use the product.
“Export Controls” means any applicable law, regulation, rules or order governing (i) any direct or indirect import, export, re-export, transmission or transfer of products, services, software, technical information, controlled data, or technologies from or to, United States, Argentina or any other country or person (“Exports”); (ii) any direct or indirect release of technology, technical information or software in any country other than its country of origin or to any person that is located in the United States, Argentina or abroad but a resident of a different country; (iii) sanctions (including economic) and/or embargoes on Exports and/or releases; or (iv) compliance with unsanctioned foreign boycotts.
“Fraudulent Activity” means any traffic generated from Partner Site(s) and/or via other Partner’s activity, through illegal means, or in bad faith, or with the intent to defraud the Company, regardless of whether or not it actually causes harm to the Company. Fraudulent Activity includes but is not limited to any act in breach of this Agreement, SPAM, false advertising, deposits generated by stolen credit cards, collusion, manipulation of the service, system, offers to share Partner Fees, directly or indirectly, with third parties (including Potential User), and any other unauthorized use, misuse, or manipulation of the Site, the Service, Tracking Mechanism and/or Potential Users.
“GDPR” means the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, together with the codes of practice, codes of conduct, regulatory guidance and standard clauses and other related legislation resulting from the GDPR, as updated from time to time.
“Intellectual Property Rights” means copyrights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.
“Partner Application” means the application submitted by a Partner to participate in the Program, including, any and all correspondence or calls between Company and Partner, in same regard.
“Partner Fees” or “Fees” means the approved and undisputed amount due and payable to Partner in accordance with the Partner Fee Plan.
“Partner Fee Plan” means the plan setting forth the fees to which Partner may be entitled, in consideration for a successful referral of a Referred Customer, as attached hereto as Appendix A, and as may be updated by the Company, at its sole discretion, from time to time, by notifying Partner at least 30 days in advance.
“Partner Site” means websites owned, controlled or used by Partner, or any other website on which the Partner will place Designated Links to the Site.
“Personal Data” shall have the meaning ascribed to it in the Data Processing Addendum.
“Potential User” shall have the meaning ascribed to it in the Partner Fee Plan.
“Linkcard.app Plan” means any of the charged plans offered by Linkcard.app at https://linkcard.app/pricing/, as may be updated and/or modified from time to time by Linkcard.app, including under any Special Offering.
“Net Sales” means the net amounts actually paid by a Referred Customer to the Company, in consideration for a Linkcard.app Plan, during the Payment Period, less any (a) charge-backs, (b) issued refunds and/or credits, (c) ACH returns, and (d) taxes, including, any payments and withholdings for sales tax or VAT; and/or (e) billing and payment processing fees (sub-clauses (a) through (e) shall be regarded as “Deductions”).
“Payment Period” shall have the meaning ascribed to it in the Partner Fee Plan.
“Process” shall have the meaning ascribed to it in the Data Processing Addendum.
“Qualified Purchase” shall have the meaning ascribed to it in Section 7.1 herein.
“Referred Customer” shall have the meaning ascribed to it in the Partner Fee Plan.
“License” means the license granted under Section 4.1 herein.
“Service” means Company’s web-based digital card builder tool offered on a software as a service (SaaS) basis, as may be updated, enhanced or modified from time to time, at the Company’s sole discretion.
“Site” means https://linkcard.app/and any other website, operated by the Company or any of the Company Affiliates, as may change from time to time.
“Special Offerings” means any special offers, such as (without limitation) discounts, one-time or seasonal offers, vouchers, coupons or any type of benefit that may be offered to a certain segment of users, whether based on location, vertical, user’s identity or any other criteria.
“Sponsored Link” means a link offered, created, or displayed for a fee (whether on a “cost-per-click” basis, commission, or any other commercial arrangement) by any internet search engine, portal, sponsored advertising service or other search or other referral service which uses search terms or key words to identify, draw attention to, or direct internet traffic to an internet site.
“Taxes” means all national, provincial and municipal, income, franchise, business, gross receipts, payroll, property, sales, use, excise, value-added, consumption, goods and services, harmonized sales, stamp, and all other similar taxes or duties.
“Term” means the term commencing upon the approval of Partner’s participation in the Program by Linkcard.app and ending according to the provisions of Section 8 below.
“Threshold Amount” means USD$300.
“Tracking Mechanism(s)” means specific unique code(s) or any identifiable method that Linkcard.app will provide the Partner to track the traffic and users which arrive via the Partner activity (including but not limited, from the Partner Site). This Tracking Mechanism will be embedded within the Designated Links to be used by the Partner. Linkcard.app tracks its users by cookies or other tracking means, which shall expire within 60 days. If for any reason, Tracking Mechanism was disabled or blocked, including when any user block it, for any reason whatsoever (including if the applicable tracking method have expired), Linkcard.app will not be able to identity such user, hence such user will not be considered a Referred Customer of the Partner.
3. Enrolling in the Program
To begin the enrollment process, the prospective Partner shall submit a complete Partner Application. Partner must provide full, true and accurate information in the Partner Application. Linkcard.app will evaluate Partner’s Application in good faith and may notify it of its acceptance or rejection within approximately 30 business days of last communication between Linkcard.app and Partner in respect of the Partner Application. Unless prospective Partner received a clear written notice from Linkcard.app confirming its participation in the Program, it shall not be deemed to be part of the Program.
Linkcard.app may reject Partner Application at its sole and absolute discretion, and shall not be required to provide any explanation to its rejection of any prospective Partner.
Once accepted to the Program, Partner hereby agrees to Linkcard.app: (a) sending from time to time to Partner emails and other communications regarding the Program, and (b) reviewing and monitoring the Partner Site(s) and Ads, to verify compliance with this Agreement.
If Linkcard.app accepts Partner Application and thereafter the Partner Site or activity is determined (in Linkcard.app’s sole discretion) to be unsuitable for the Program, Linkcard.app may terminate the Affiliate’s participation in the Program at any time, immediately upon written notice. Unsuitable Partner Sites or activities may include, but not be limited to, sites that do not generate sufficient volume of visitors, sites containing or activities related to illegal, offensive, abusing, infringing content, or which incorporate images or content that is, in any way, unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, including without limitation, sites or activities that: promote violence; promote gambling; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporate any materials which infringe or assist others to infringe the Company’s, or any third party’s, Intellectual Property Rights, or are directed towards children under 13 years of age.
4. Promoting the Service on Ads; Designated links
License. Subject to the terms and conditions of this Agreement, during the Term, the Company grants Partner a limited worldwide, non-exclusive, non-sublicensable, non-transferable license to use the Company Brands, contained in the Ads, for the sole purpose of promoting and marketing Linkcard.app and the Service to Potential Users (the “License”). Partner may not use any of the Company Brands, in any manner other than as expressly permitted herein or approved in advance and in writing by the Company. Furthermore, Partner may not modify any of the Ads in any way, whatsoever unless approved in advance and in writing by the Company.
Promoting the Ads.
1. Partner shall use its best endeavors to market and promote the Ads to Potential Users, and shall display the Ads in good taste, adjacent to any with the first or most prominent use of such Ads in piece of advertising means, in which such Ads appear, subject to other requirements as the Company may from time to time impose and provide to Partner. Partner may not use the Ads and the Company Brands, contained therewith in a manner that, at the Company’s sole discretion, is disparaging or otherwise portrays the Company in a negative light. Partner shall have no other right, title or interest in or to the Ads and the Company Brands contained therewith other than as specified in the limited License. PARTNER WILL BE SOLELY RESPONSIBLE FOR THE CONTENT AND MANNER OF ITS MARKETING ACTIVITIES. ALL MARKETING ACTIVITIES MUST BE PROFESSIONAL, PROPER AND LAWFUL UNDER APPLICABLE RULES OR LAWS.
2. The Company party may revoke Partner’s right to use Company Brands, upon written notice, and may at any time, upon written notice to Partner, require Partner to remove or modify the Ads, all at the Company’s sole discretion.
3. In the event that Partner displays an Ad in its Partner Site, then such Ad shall be placed in a prominent and easily accessible place.
Designated Links. To permit accurate tracking, reporting, and Partner Fees accrual, the Company will provide Partner with a specific Designated Link. Partner must ensure that each of the links between its Partner Site and Company Site properly utilizes the Designated Links provided to Partner. Partner is not authorized to alter, modify or change any of the Designated Links or Tracking Mechanism. The Company will not be held liable to the Partner with respect to any failure by Partner to use such Designated Links and/or Tracking Mechanism. The Company will not be responsible for errors which may occur in the tracking of transactions for any reason beyond its control, including, if the Partner has made or caused any such modification to the Designated Links and/or Tracking Mechanism. For the avoidance of doubt, Partner will use the Designated Links or Tracking Mechanism, only for the purposes of the Program. Any other use of the Designated Links and/or Tracking Mechanism will be considered void and shall be deemed as breaching this Agreement and will not entitle Partner to Partner Fees, which is based on such unauthorized use.
5. Partner Responsibilities and Restrictions
Delivery of Emails.
1. If Partner sends, or cause to be sent, any messages or communications by electronic means, including but not limited to email and instant messages (“Emails”) in connection, directly or indirectly, with this Agreement and/or the Program, then Partner agrees, acknowledges, represents and warrants that all such Emails shall be in full-compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and all other laws and regulations applicable to Partner and Partner Site, and including, but not limited to, all European laws and directives and the Federal Trade Commission regulations.
2. Partner agrees to not utilize SPAM in promoting the Company. The Company maintains a ZERO tolerance policy towards SPAM delivery, including, but not limited to, unsolicited commercial E-mails. Delivery of SPAM Emails by Partner constitutes a breach of this Agreement, and may result in the immediate suspension or termination of this Agreement and the Program, and a possible forfeiture of any Partner Fees, without derogating from any remedy available to the Company hereunder or in accordance with applicable law.
3. SPAM is defined as including, but not limited to, sending, initiating or procure the sending of an Email: (a) to any person who has either not expressly requested to receive Emails (or has explicitly requested to receive no further Emails) specifically from Partner, including without limitation for the purposes of sending unsolicited bulk email, executing any “mass mailings” or “email blasts,” or for the purpose of spamming any public forum, including without limitation, any blog, message board, classified listings, auction sites, newsnet, newsgroups, or similar service; (b) that include any false or deceptive information regarding Partner’s identity, or regarding the intent, subject, or origin of the message or fail to include accurate information regarding Partner identity, and the intent, subject, and origin of the Email; (c) exploit documented or undocumented security holes on any client or server machine; (d) that fail to (i) include clear, valid, and conspicuously displayed “From” and “Subject” lines in the Email, (ii) include a functioning return address (or hyperlink) in the Email that enables the recipient to submit a request to opt-out from any such messages or emails by Partner (“Opt Out Request”) for no less than 30 days from the date the Email was sent; or (iii) honor any Opt-out Request within ten (10) days of receipt of such Opt-out request by Partner; (e) to any address which was obtained via automated means, including via the automated combination of names, letters, or numbers, dictionary attacks, or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy; (f) containing commercial marketing or promotional content to, or collect any personally identifiable information from, any person who is under eighteen (18) years of age; (g) that include or otherwise involve any fraudulent, deceptive, false or misleading information.
Communication through Phone Calls or SMS. Partner is solely liable for any and all communication methods used by it for the marketing and promotion activities hereunder, including, without limitations, Partner’s compliance with any applicable laws and/or regulations pertaining to telemarketing and any other use of phone numbers in connection with its activities hereunder.
Prohibition on Sponsored Links and other activities.
1. Partner: (a) will not perform any marketing activities for the Company Brands or Service, in the following channels used by the Company: (i) Google AdWords (ii) Facebook (iii) YouTube ads, and any other channel used by the Company, as updated by Company, from time to time; (b) shall not use, procure, bid on, or otherwise arrange for a Sponsored Link which uses or includes any of the Company Brands; and (c) shall not register, procure, or use any internet domain name that includes any of the Company Brands or any variations thereof.
2. Partner may not offer any person or entity any payments or incentives (like rebate, cashbacks, “paid to click” advertising or discounts) for using the Designated Links and/or converting a Linkcard.app trial account into a Linkcard.app Plan.
4. Security. Partner shall maintain at least industry-standard technical and organizational measures for protection of the security (including protection against unauthorized or unlawful processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Data), confidentiality and integrity of its users and visitors’ data (including Potential Users) and content it possesses or processes (where applicable), including without limitation, Personal Data. Partner shall further regularly monitor compliance with these measures.
5. Processing Special Data and Personal Data. Partner will not Process any data that is subject to regulatory requirements, including, where applicable, with respect to the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations thereunder, as amended, without first: (a) obtaining Company’s written consent, at its sole discretion; and (b) implementing appropriate terms in the applicable agreement it engages with users and visitors (including Potential Users), for protection of such data. Unless otherwise agreed in an applicable agreement it engages with its users and visitors (including Potential Users), Partner will do the following, at a minimum, with the respect to all Personal Data that it Processes: (a) comply with, and only act on, appropriate consent by, instructions from, or on behalf of, such users and visitors (including Potential Users) regarding the processing of that Personal Data; (b) not Process that Personal Data for any purpose other than for the performance of its obligations under this Agreement or any other legal obligation it has towards the users and visitors (including Potential Users); (c) ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful Processing of that data and against loss or destruction of, or damage to, that Personal Data; (d) ensure the reliability of, and be responsible for, all of Partner’s employees, agents and contractors who will have access to that Personal Data; (e) not, by any act or omission, place any of its users and visitors (including Potential Users) or the Company in breach of Data Protection Laws; (f) inform its users and visitors (including Potential Users), immediately of any suspected or confirmed data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that Personal Data; (g) ensure that any third party sub-contractor engaged by Partner to Process that Personal Data on behalf of its users and visitors (including Potential Users) only uses and accesses that data in accordance with the terms of this Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under this Section 5.5; and (h) Process such Personal Data in compliance with the applicable Data Protection Laws. In the event that Partner, or any Personal Data it Processes, are subject to the GDPR, Partner shall comply with the provisions of the Data Processing Addendum, which shall constitute an integral part hereof.
6. Company Responsibilities.
Provision of Services. In accordance with this Agreement, the Company will provide the Service to the Referred Customers, in accordance with the Company’s then current terms and policies, governing the Service.
Payment Processing. The Company will process transactions placed by Potential Users who used the Tracking Mechanisms from the Partner Site to the Site. The Company reserves the right to reject and approve transactions in accordance with its terms and policies. Partner is not a party to any of the Company’s terms and/or agreement with Referred Customers, or to which any such Referred Customer is bound, in connection with the Service. Therefore, Partner shall have no rights in respect thereof.
Product Availability. The Company may, in its sole discretion, without notice, and without incurring any liability to Partner and/or Referred Customers, change, enhance or discontinue any feature of the Service. Partner agrees that the Company has no obligation to provide Partner with advance notice of any changes in any the Service or any portion thereof.
Linkcard.app Plans. The Company may change the pricing, policies and operating procedures at any time consistent with applicable laws, without notice. Among others, the Company will determine the prices of the Linkcard.app plans. Partner must track such changes and reflect them in the Partner Site or in any other relevant marketing means.
7. Partner Fees; Payment Terms
Partner Fees. Subject to the terms and conditions of this Agreement and Partner’s compliance with the provisions of this Agreement, in consideration for a successful referral of a Referred Customer by Partner that resulted in a purchase of a Linkcard.app Plan (a “Paid Account”), the Company shall pay the Partner Fees, in accordance with the Partner Fee Plan, provided that both of the following conditions are met (a “Qualified Purchase”):
1. Partner referred the Referred Customer through any authorized communication hereunder containing a Tracking Mechanism; and
2. Such purchase took place during the Eligibility Period, solely to the extent such Referred Customer was not under an eligibility period of another partner of Company.
Reporting. Within 14 days from the end of each calendar month, the Company shall provide Partner with a monthly electronic report specifying Net Sales and the Partner Fees earned, during the relevant month (the “Monthly Reports”). Invoices submitted by Partner, shall correspond to the Monthly Reports, as applicable. Any Deductions of Qualified Purchases that took place after the Monthly Report of such Qualified Purchase was delivered, then such Deductions shall be included in the next Monthly Report and deducted from next payment, accordingly.
Payment Terms. Subject to the terms and conditions of this Agreement, undisputed Partner Fees shall be due and payable in Unites States Dollars or at the currency, in which the Qualified purchase was made, at the Company’s sole discretion, within 45 days following the end of the month in which such Net Sales were received by the Company, through wire transfer or any other method chosen by the Company. Payment of Partner Fees shall be made against an undisputed and duly issued invoice. Invoice that do not correspond to the Monthly Report shall not be paid by the Company until amended by Partner to correspond the Monthly Report. Partner is responsible to provide the Company with full and accurate details as required for it to remit the Partner Fees, and shall be solely liable for any delay in payment resulting from its failure to duly and timely provide the Company with such details.
Threshold Amount. Notwithstanding anything in the foregoing to the contrary, in no event will the Company be required to pay to a Partner any Partner Fees unless and until at least the Monthly Threshold Amount has been accumulated in Partner’s account, and therefore in the event that, in any given month, the Partner has failed to reach at least the Threshold Amount by the end of a calendar month, any accumulated due Partner Fees shall be carried over and added to the next month’s Partner Fees, until the earlier of: (a) the month in which such Threshold Amount is met; (b) June 30th of the respective year; or (c) December 31st of the respective year.
Fraud Traffic. In the event that the Company reasonably suspects any Fraudulent Activity by Partner, the Company may delay any payment hereunder to Partner, to verify the relevant transactions and in the event that Company determines, at its reasonable discretion, that any Partner Fees arising out from a Fraudulent Activity, it shall recalculate and/or deduct the Partner Fees accordingly and in its sole discretion, and the Company shall further have the right, in addition to any other right or remedy available to it under this Agreement or applicable law, to render the Designated Links and Tracking Mechanism assigned to such Partner, inoperative, and immediately block Partner’s access to the Program, with no compensation to Partner.
Taxes and Costs. The Partner Fees to which the Partner may be entitled hereunder shall be inclusive of all taxes (including value added tax, service tax, sales tax, where applicable), levies and/or other mandatory deductions (which may be deducted at source by the Company). Partner is solely responsible for the payment of all taxes, costs and expenses applicable to, and/or arising from, the conduct of its business and any of its rights and obligations hereunder, including, without limitations, any transfer fees, marketing and promotion fees or any other costs relating to Partner’s performance of its obligations hereunder. In the event that the Company is required to withhold any tax from any payment made to Partner hereunder, in accordance with applicable law, Partner hereby authorizes Company to make such tax withholding, as Company deems fit, at its discretion, to comply with applicable law.
Offset. If any excess payment has been made to the Partner, the Company reserves the right to adjust or offset the excess amount against any subsequent fees payable to Partner hereunder. In the event that Partner owes any amount to the Company, either hereunder or under any other agreement or obligation, Company may deduct and offset such amount from any payment to which Partner is entitled hereunder.
Entire Compensation. The Partner Fees represents the entire compensation due to the Partner with respect to its participation in the Program pursuant to this Agreement. Without derogating from the generality of the foregoing, except for payments in the Payment Period of the Qualified Purchase, in accordance with the Partner Fee Plan, the Partner shall not be entitled for any fee in respect of any renewal, trial version (if applicable), second purchase or otherwise.
8. Term and Termination.
Termination for Convenience. Either party may terminate this Agreement effective upon 10 days prior written notice.
Termination by Company for Cause. The Company may terminate this Agreement: (a) if Partner is in material breach of this Agreement that is capable of cure, and fails to cure such breach within 5 days following a written notice by the Company, of such breach; (b) immediately upon written notice when the Partner is in material breach of the Agreement and that breach is incapable of cure, including, without limitation, breach of Sections 3.4 and 7.5; or (c) immediately upon written notice to Partner if: (i) a receiver or trustee is appointed for the Partner or its property; (ii) any proceedings are commenced by, for, or against the Partner under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of Partner’s debts; or (iii) Partner is liquidated or dissolved.
Effect of Termination. Upon termination or expiration of this Agreement: (i) all rights and obligations of the parties shall cease (including, Partner’s participation in the Program and the License), except that subject to Section 8.4 hereunder, Company’s payment obligations in accordance with this Agreement, for Qualified Purchases that were fully paid for to the Company during the Term, shall proceed in accordance with their terms and conditions until no longer applicable; (ii) the Partner shall, at its own expense, return to the Company all Confidential Information and any materials or any embodiments thereof provided by the Company as soon as practicable after the date of such termination or expiration, or upon request of the Company, destroy such Confidential Information and provide a satisfactory evidence to that effect; (iii) the Partner shall cease any activity with respect to the Program and this Agreement, including without limitation, Partner shall promptly remove and cease use of all Tracking Mechanisms, Ads, Designated Links, Company Brands, and all other materials provided by, or created by Partner in connection with, the Company; and (iv) the Company shall not be liable to the Partner, merely because of termination or expiration of this Agreement, for compensation, reimbursement or damages for the loss of prospective profits, anticipated sales or goodwill, or otherwise.
Effect of Termination for Cause. In the event of termination of this Agreement and your participation in the Program, due to cause in accordance with Section 8.2 above, any and all Partner’s rights to receive the Partner Fees hereunder shall be forfeited and relinquished, immediately, without prior notification, and the Partner will not be entitled to receive any unpaid Partner Fees, regardless if such fees accrued during the Term or not. Partner hereby expressly waive any claim or demand in this regard.
Survival. Sections 2, 7 solely to the extent related to payment terms for due Partner Fees, 8.5, 9.4, 10 through 13 and 15 shall survive the expiration or termination of this Agreement.
9. Partner Representations and Warranties; General.
Partner Representations and Warranties. Partner hereby represents and warrants as follows:
It is either a legal entity, or to the extent it is an individual, then he/she is over the age of 18 and in all respects, Partner is qualified and competent to enter into this Agreement.
It is free to enter into this Agreement and the performance hereof will not breach any agreement, permit or any other binding instrument by which it is bound, and it shall comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority as applicable to Partner, whether those laws are now in effect or later come into effect during the Term, in conducting its activities hereunder, including, without limitation, anti-bribery laws, Export Laws, and Data Protection Laws, and shall not, by act or omission place the Company in violation of any of the foregoing;
It will use no less than reasonable care, diligence, expertise and skill in performing its obligations under this Agreement;
Partner will not make any unauthorized, false, misleading or illegal statements in connection with this Agreement and/or the Program, the Company or regarding the Service. Partner will not make or give any representations, conditions or warranties concerning the Service, on behalf of the Company. Company will not be responsible for any representations, conditions or warranties made or given by Partner concerning the Service. Partner will not engage in, and will not solicit, accept, or maintain any Customer who engages in, illegal or deceptive trade practices or any other behavior prohibited by this Agreement.
It will make no representations, warranties or guarantees with respect to the specifications, terms, features or capabilities of the Service or otherwise relating to the Company and any of its products and services, that are inconsistent with the representations agreed upon under this Agreement;
It obtained and maintains all licenses, permits, approvals and other permissions (of whatever nature) required to perform its obligations in accordance with this Agreement., and by performing its obligations hereunder, it does not breach any other agreement to which Partner is a party, or violate any rights of any third parties (including, Referred Customers and Potential Users).
Independent Contractors. This Agreement does not create employer-employee relationship between Company and the Partner, nor an agency, joint venture or partnership. Nothing contained in this Agreement shall be constructed to mean that the Partner’s acts as agents or representatives of Company except as expressly provided under the term of this Agreement, and neither party will represent that it has any authority to assume or create any obligations, express or implied, on behalf of the other party.
Offering of Special Offers by the Company. Partner acknowledges and understands that a part of Company’s relationship with its customers, including Referred Customers, the Company may at any time (directly or indirectly), at its sole discretion, offer to Referred Customers Special Offering.
Records and Audit. Partner will keep and maintain complete and accurate books, records and accounts relating to this Agreement. During the Term and for a period of 3 year thereafter, not more frequently than twice a year, Partner will, upon receipt of reasonable prior notice from the Company, give the Company and/or the auditor(s) appointed by the Company access, during normal business hours, to Partner’s books, records and accounts to the extent reasonably necessary to verify Partner’s continuing compliance with this Agreement, including compliance with all applicable laws, rules and regulations.
Notwithstanding the above, from time to time, the Company may make available to the Partner, information of a confidential nature including, but not limited to, information concerning the Service and proposed new versions of the Service, the existence of this Agreement and its terms, specifications, formulas, prototypes, computer programs and any and all records, data, ideas, methods, techniques, processes and projections, plans, marketing information, materials, financial statements, memoranda, analyses, notes, legal documents, Potential Users’ or other users’ personal identifiable information (PII) and protected health information (PHI) and other data and information (in whatever form), as well as improvements, know how, intellectual property, patents (whether pending or duly registered) and any know-how related thereto, relating to Company, business and partners information – either orally or in writing (collectively, “Confidential Information”). The Partner shall not disclose such information to any other third party, or use such Confidential Information without prior written consent of the Company. The Partner shall treat such Confidential Information with the same care as it should exercise in the handling of its own confidential or proprietary information, but in no event less than reasonable care, and in no event shall such Confidential Information be disclosed to any person including employees, consultants, and/or contractor (collectively, “Partner Representatives”), unless such person or entity is bound by a like obligation of confidentiality. In any event, it is hereby clarified that the Partner shall be liable for any breach of the confidentiality obligations herein by any of its Partner Representatives. Upon termination or cancellation of this Agreement for any reason, any and all Confidential Information shall be immediately returned by the Partner to Company and the limitations and undertakings specified in this Section 10 shall remain in effect. As between the Company and Partner, the Service and any information, including Personal Data, relating to any customer or user of the Service, including, without limitation, Referred Customers and Potential Users, shall be deemed as Confidential Information owned by the Company.
11. Proprietary Rights.
The Partner acknowledges that it obtains no ownership rights in, or any right or license to the Service or Company Brands under the terms of this Agreement. All right, title and interest in and to the Service and Company Brands, including any and all Intellectual Property Rights therein, shall at all times remain with the Company. Partner shall not be entitled to use Company’s Brands or other Intellectual Property Rights, other than in the manner expressly authorized by Company.
Partner will indemnify and hold harmless Company, its subsidiaries, officers, employees, agents, and third parties from and against any claims, liabilities, losses, costs, damages or expenses (including attorney’s fees) arising, directly or indirectly, in connection with: (a) Partner’s acts or omissions under this Agreement; (b) Partner Site; (c) any disputes between Partner and any other party relating to this Agreement or the participation in the Program; and any breach or default hereunder.
13. Limitation of Liability
EXCEPT FOR BREACH OF SECTION 10 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNOWS OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR ANY PAYMENT OF PARTNER FEES DUE HEREUNDER IN ACCORDANCE WITH THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS DUE TO COMPANY IN THE THREE (3) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
THE COMPANY (AND EACH OF ITS LICENSORS): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; (B) DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET THE PARTNER OR ITS REFERRED CUSTOMERS’ REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED; AND (C) NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SERVICES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, OR OTHERWISE.
The Company may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion by providing Partner with 14 days prior notice of such modification. Notice of any change by e-mail, to Partner’s address as provided to Company, or the posting on the Site of a change notice or a new agreement, is considered sufficient notice to Partner of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available Partner Fees, payment procedures and schedules, and Partner Program rules.
Notwithstanding the foregoing in Section 14.1 to the contrary, the Partner Fees Plan may be altered, modified or changed by the Company, from time to time, in its sole and absolute discretion, provided that the Company will notify Partner of such change of the Partner Fees Plan. Partner Fees earned prior to such change will be paid according to the conditions in effect prior to such changes. Partner Fees earned after such change is in effect will be paid according to the new conditions of the amended Partner Fees Plan’s effective date at which the payment has been made.
If any modification is unacceptable to Partner, its sole recourse shall be to terminate this Agreement. Partner’s continued participation in the Program following posting of a change notice or a new agreement on the Site will constitute binding acceptance of such change.
Entire Agreement. This Agreement set forth is the entire agreement and the understandings between the parties relative to the subject matter contained herein and supersedes all other agreements, oral and written, therefore made between the parties, any amendment hereto must be in writing and signed by an authorized representative of Company and the Partner.
Notices. All notices, approvals and requests required hereunder, shall, except where specifically provided otherwise, be sent in writing to the party to whom notice is to be give, (a) by personal delivery; (b) by certified or registered mail (postage prepaid and return receipt requested); or (c) sent by email, provided an acknowledgement of delivery was obtained (either by reply to such email or other confirmation of receipt). Whether delivered personally, by registered mail or by email, the date of receipt shall be deemed to be the day of such notice. Either Party may designate a different address by notice to the other given in accordance herewith.
Waiver. Neither party’s failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or forfeiture of any such rights.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Courts of Delaware, United States, without regard to its conflict of laws provisions. The Courts of Delaware, shall have sole and exclusive jurisdiction and venue over any dispute related to this Agreement and both parties hereby consent to such jurisdiction and venue.
Assignment. The Partner shall not assign any of his rights and obligations under this Agreement, except with Company’s prior written consent. Company may assign any of its rights and/or obligations hereunder at Company’s sole discretion.
16. Voluntary Statement
Partner acknowledges and agrees that nothing herein and no statement by the Company or any of its employee or other person associated with the Company has prevented Partner in any way from seeking such advice before entering into this Agreement.
Partner has independently evaluated the desirability of participating in the Program and it is not relying on any representations or statements other than as set forth in this Agreement.
PARTENR HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS IT, HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS, WHICH IT IMPOSES UPON PARTNER WITHOUT RESERVATION. PARTNER HAS ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO PARTNER TO INDUCE IT TO ACCEPT THIS AGREEMENT. PARTNER AGREES TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.
Partner Fee Plan
“Payment Period” means a period in respect of each Referred Customer, commencing upon the Qualified Purchase, as long as it is effective, and ending upon the earlier of: (a) the lapse of the initial and consecutive 2 years; (b) the end of the Term in accordance with Section 8.2 of the Agreement; or (c) upon expiration or termination, for any reason or for no reason, of the subscription for the respective Linkcard.app Plan underlying the Qualified Purchase.
“Potential User” means a person or entity that does not maintain an account with the Service as an administrator or user (either paid or unpaid), for its own or as part of its organization.
“Referred Customer” means a Potential User that was referred by Partner’s Ad(s) or any other communication authorized hereunder, containing a Designated Link or any other Tracking Mechanism, registered a new account with the Service and made a Qualified Purchase.
2. Partner Fees.
Subject to Section 7 of the Agreement, the Partner Fees to which Partner shall be entitled for a Qualified Purchase of a Referred Customer, shall be equal to 30% of the Net Sales collected and retained by the Company, during the Payment Period.
For clarity, the Partner Fees are calculated out of the Net Sales collected for the Paid Account underlying the Qualified Purchase, regardless of whether such Referred Customer made additional purchases under other accounts with the Service, for which Partner shall not be entitled to any fee.
Data Processing addendum
This Data Protection Addendum (“Addendum”) dated __________________ (“Addendum Effective Date”) forms part of the Partner Program Terms and Conditions (“Agreement”) between (i) _______________________________ (“Partner”) acting on its own behalf and as agent for each Partner Affiliate, and (ii) LINCKARD LLC (“Linkcard.app”) acting on its own behalf and as agent for each Linkcard.app Affiliate.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.
1. In this Addendum, the following terms shall have the meanings set out below:
2. “Applicable Laws” means (a) European Union or Member State laws with respect to any Linkcard.app Personal Data; and (b) any other applicable Data Protection Laws with respect to any Linkcard.app Personal Data;
3. “Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58/EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR” and collectively with the foregoing “EU Data Protection Laws”), any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, and the data protection or privacy laws of any other country including, without limitation, United States;
4. “Engagement” means the engagement by and between Partner and Linkcard.app and/or Linkcard.app Affiliates pursuant to the Agreement;
5. “Delete” means the removal or obliteration of Personal Data such that it cannot be recovered or reconstructed;
6. “EEA” means the European Economic Area;
7. “Linkcard.app Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Linkcard.app, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
8. “Linkcard.app Personal Data” means the data described in Annex 1 and any other Personal Data Processed by Partner or any Partner Affiliate on behalf of Linkcard.app or any Linkcard.app Affiliate pursuant to or in connection with the Agreement or provided by Linkcard.app or any Linkcard.app Affiliate to Partner or any Partner Affiliate;
9. “Mandated Auditor” has the meaning given to it in Section 11;
10. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Linkcard.app Personal Data transmitted, stored or otherwise Processed, as well as any breach of Section 5 of this Addendum, or of the data protection, confidentiality or security provisions of the Agreement;
11. “Process/Processing”, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Special Categories of Personal Data” shall have the same meaning as in the GDPR;
12. “Relevant Date” means the date falling on the earlier of (i) the cessation of Processing of Linkcard.app Personal Data by Partner or Partner Affiliates; or (ii) termination of the Agreement;
13. “Restricted Transfer” means either (i) a transfer of Personal Data from Linkcard.app or any Linkcard.app Affiliate (“Transferor”) to Partner or any Partner Affiliate (“Transferee”); or (ii) an onward transfer from Partner or Partner Affiliate to a Subprocessor (also a “Transferee”), in each case where such transfer would be prohibited by Data Protection Laws. For clarity, where a transfer of Personal Data from one country to another country is of a type authorised by Data Protection Laws in the exporting country for example in the case of transfers from within the European Union to a country or scheme (such as the EU-US Privacy Shield) which is approved by the European Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation, such transfer shall not be a Restricted Transfer for the purposes of this Addendum;
14. “Subprocessor” means any Data Processor (including any third party and any Partner Affiliate) appointed by Partner to Process Linkcard.app Personal Data on behalf of Linkcard.app or any Linkcard.app Affiliate;
15. “Supervisory Authority” means (a) an independent public authority which is established by a Member State pursuant to Article 51 GDPR; and (b) any similar regulatory authority responsible for the enforcement of Data Protection Laws;
16. “Partner Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with Partner, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
17. “Third Country” means a country which is not a Member State of the European Union.
18. The terms used in this Addendum shall have the meanings set forth herein.
19. Except as modified below, the terms of the Agreement shall remain in full force and effect.
2. SUBJECT MATTER
In the course of the Engagement pursuant to the Agreement, Partner and Partner Affiliates may Process Linkcard.app Personal Data on behalf of Linkcard.app or any Linkcard.app Affiliate. Partner agrees to comply with the provisions set out in this Addendum, Applicable Laws and Data Protection Laws with respect to any Linkcard.app Personal Data submitted by or for Linkcard.app or any Linkcard.app Affiliate or otherwise collected and Processed on behalf of, or for the benefit for, Linkcard.app or any Linkcard.app Affiliate by Partner or any Partner Affiliate.
3. PROCESSING OF LINKCARD.APP PERSONAL DATA
Partner shall only Process the types of Linkcard.app Personal Data relating to the categories of Data Subjects for the purposes of the Agreement and for the specific purposes in each case as set out in Annex 1 to this Addendum and shall not Process, transfer, modify, amend or alter the Linkcard.app Personal Data or disclose or permit the disclosure of the Linkcard.app Personal Data to any third party other than in accordance with Linkcard.app’s documented instructions (whether in the Agreement or otherwise) unless such Processing is required by Applicable Laws to which Partner is subject, in which case Partner shall to the extent permitted by Applicable Laws inform Linkcard.app of that legal requirement before Processing that Personal Data.
Partner shall take reasonable steps to ensure the reliability of any employee, agent or contractor of Partner and/or Partner Affiliates who may have access to the Linkcard.app Personal Data, ensuring in each case that access is strictly limited to those individuals who need to access the relevant Linkcard.app Personal Data, as strictly necessary for the purposes set out in Section 3.1 above in the context of that individual’s duties to Partner, ensuring that all such individuals:
are informed of the confidential nature of the Linkcard.app Personal Data and are aware of Partner’s obligations under this Addendum and the Agreement in relation to the Linkcard.app Personal Data;
have undertaken appropriate training in relation to Data Protection Laws;
are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and
are subject to user authentication processes when accessing the Linkcard.app Personal Data.
5. TECHNICAL AND ORGANIZATIONAL MEASURES
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Partner shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate the measures referred to in Article 32(1) of the GDPR.
In assessing the appropriate level of security, Partner shall take account in particular of the risks that are presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Linkcard.app Personal Data transmitted, stored or otherwise Processed.
Partner shall demonstrate the implementation of such measures upon Linkcard.app’s request.
Subject to Section Error! Reference source not found., Partner shall not engage any Data Processors to Process Linkcard.app Personal Data other than with the prior written consent of Linkcard.app, which Linkcard.app may refuse in its absolute discretion.
With respect to each Subprocessor, Partner shall:
provide Linkcard.app with full details of the Processing to be undertaken by each Subprocessor;
carry out adequate due diligence on each Subprocessor to ensure that it is capable of providing the level of protection for Linkcard.app Personal Data as is required by this Addendum including without limitation sufficient guarantees to implement appropriate technical and organisational measures in such a manner that Processing will meet the requirements of GDPR and this Addendum, and provide evidence of such due diligence to Linkcard.app where requested by Linkcard.app or a Supervisory Authority;
include terms in the contract between Partner and each Subprocessor which are the same as those set out in this Addendum. Upon request, Partner shall provide a copy of its agreements with Subprocessors to Linkcard.app for its review;
insofar as that contract involves a Restricted Transfer, procure that each Transferee enter into such a contract with Linkcard.app (or such other arrangement as may be agreed with Linkcard.app), in each case in order to ensure the adequate protection of the transferred Linkcard.app Personal Data; and
remain fully liable to Linkcard.app for any failure by each Subprocessor to fulfil its obligations in relation to the Processing of any Linkcard.app Personal Data.
7. DATA SUBJECT RIGHTS
Taking into account the nature of the Processing, Partner and Partner Affiliates shall assist Linkcard.app by implementing appropriate technical and organisational measures to facilitate the fulfilment of Linkcard.app’s and Linkcard.app Affiliate’s applicable obligation to respond to requests for exercising Data Subject rights laid down in GDPR.
Partner shall promptly notify Linkcard.app if it receives a request from a Data Subject under any Data Protection Laws in respect of Linkcard.app Personal Data.
Partner shall co-operate as requested by Linkcard.app to enable Linkcard.app to comply with any exercise of rights by a Data Subject under any Data Protection Laws in respect of Linkcard.app Personal Data and comply with any assessment, enquiry, notice or investigation under any Data Protection Laws in respect of Linkcard.app Personal Data or this Addendum, which shall include:
the provision of all data requested by Linkcard.app within any reasonable timescale specified by Linkcard.app in each case, including full details and copies of the complaint, communication or request and any Linkcard.app Personal Data it holds in relation to a Data Subject;
where applicable, providing such assistance as is reasonably requested by Linkcard.app to enable Linkcard.app to comply with the relevant request within the timescales prescribed by the Data Protection Laws; and
implementing any additional technical and organisational measures as may be reasonably required by Linkcard.app to allow Linkcard.app to respond effectively to relevant complaints, communications or requests.
Partner shall (i) have a policy to duly identify and deal with Data Subject Rights requests (including identifying the request, acknowledging receipt, responding/resolving by the deadline requested by Linkcard.app), (ii) promptly handle such request and provide a satisfactory response and deliverable to Linkcard.app by the deadline requested by Linkcard.app and (iii) ensure that the activities of, and systems provided by, Partner are designed to locate the Personal Data relating to a specific individual, to rectify it, to delete it, or to perform any other operation necessary under Data Protection Laws.
Partner shall ensure that Linkcard.app Personal Data is separated at all times from Partner’s own data and Partner’s customers’ data.
8. PERSONAL DATA BREACH
Partner shall notify Linkcard.app promptly and without any undue delay, and in any case within twelve (12) hours, upon becoming aware of or reasonably suspecting a Personal Data Breach providing Linkcard.app with sufficient information which allows Linkcard.app to meet any obligations to report a Personal Data Breach under the Data Protection Laws. Such notification shall as a minimum:
describe the nature of the Personal Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
communicate the name and contact details of Partner’s data protection officer or other relevant contact from whom more information may be obtained; and
describe the likely consequences of the Personal Data Breach.
describe the measures taken or proposed to be taken to address the Personal Data Breach. Partner shall co-operate with Linkcard.app and take such reasonable commercial steps as are directed by Linkcard.app to assist in the investigation, mitigation and remediation of each Personal Data Breach.
In the event of a Personal Data Breach, Partner shall not inform any third party without first obtaining Linkcard.app’s prior written consent, unless notification is required by EU or Member State law to which Partner is subject, in which case Partner shall to the extent permitted by such law inform Linkcard.app of that legal requirement, provide a copy of the proposed notification and consider any comments made by Linkcard.app before notifying the Personal Data Breach.
9. DATA PROTECTION IMPACT ASSESSMENT AND PRIOR CONSULTATION
Partner shall provide reasonable assistance to Linkcard.app with any data protection impact assessments which are required under Article 35 GDPR and with any prior consultations to any supervisory authority of Linkcard.app or any Linkcard.app Affiliate which are required under Article 36 GDPR, in each case solely in relation to Processing of Linkcard.app Personal Data by Partner on behalf of Linkcard.app and taking into account the nature of the Processing and information available to Partner.
10. DELETION OR RETURN OF LINKCARD.APP PERSONAL DATA
Subject to Sections 10.2 and 10.3, Partner shall promptly and in any event within 10 (ten) calendar days of the Relevant Date: (a) return a complete copy of all Linkcard.app Personal Data to Linkcard.app by secure file transfer in such format as notified by Linkcard.app to Partner; and (b) Delete and procure the Deletion of all other copies of Linkcard.app Personal Data Processed by Partner or any Authorised Subprocessor. Partner shall provide written certification to Linkcard.app that it has fully complied with this Section 10.1 within 10 (ten) days of the Relevant Date.
Subject to Section 10.3, Linkcard.app may in its absolute discretion notify Partner in writing with 10 (ten) days prior notice to require Partner to Delete and procure the Deletion of all or any copies of Linkcard.app Personal Data Processed by Partner or any Authorised Subprocessor. Partner shall provide written certification to Linkcard.app that it has fully complied with this Section 10.2 within 10 (ten) days of the prior notice.
Partner may retain Linkcard.app Personal Data to the extent required by Applicable Laws and only to the extent and for such period as required by Applicable Laws and always provided that Partner shall ensure the confidentiality of all such Linkcard.app Personal Data and shall ensure that such Linkcard.app Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
11. AUDIT RIGHTS
In addition to any audit rights granted pursuant to the Agreement, Partner shall make available to Linkcard.app on request all information necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by Linkcard.app or an auditor mandated by Linkcard.app or any Linkcard.app Affiliate (“Mandated Auditor”) of any premises where the Processing of Linkcard.app Personal Data takes place in order to assess compliance with this Addendum. Partner shall permit Linkcard.app or a Mandated Auditor to inspect, audit and copy any relevant records, processes and systems in order that Linkcard.app may satisfy itself that the provisions of this Addendum are being complied with. Partner shall provide full co-operation to Linkcard.app in respect of any such audit and shall at the request of Linkcard.app, provide Linkcard.app with evidence of compliance with its obligations under this Addendum. Partner shall immediately inform Linkcard.app if, in its opinion, an instruction pursuant to this Section 11 (Audit Rights) infringes the GDPR or other Data Protection Laws.
12. RESTRICTED TRANSFERS
Partner and Partner Affiliates shall only process Personal Data within the territory of the Member States of the European Union. Any transfer of Personal Data outside of the territory of the Member States of the European Union, including any Restricted Transfers, shall require Linkcard.app’s prior written consent. Such permission may be granted by Linkcard.app if Partner demonstrates that the recipient has undertaken to protect the Personal Data in accordance with the requirements of the GDPR (for example, by implementing one of the mechanisms set forth in the GDPR). In the event that authorities or courts determine that such mechanism is no longer an appropriate basis for the transfer or the Restricted Transfer, the Partner shall promptly take all steps reasonably necessary to demonstrate adequate protection for the Linkcard.app Personal Data, using another approved mechanism and procuring that the recipient(s) use(s) another approved mechanism. Partner understands and agrees that Linkcard.app may terminate any transfer and/or Restricted Transfer at any time as needed to comply with the Applicable Laws.
Partner shall indemnify and hold harmless Linkcard.app and each Linkcard.app Affiliate against all losses, fines and sanctions arising from any claim by a third party or Supervisory Authority arising from any breach of this Addendum.
Notwithstanding anything to the contrary in the Agreement, Partner’s liability for any breach of this Addendum shall be unlimited.
Termination. Subject to Section 15.1, the parties agree that this Addendum shall terminate automatically upon (i) termination of the Agreement; or (ii) expiry or termination of all service contracts, statements of work, work orders or similar contract documents entered into by Partner with Linkcard.app and/or Linkcard.app Affiliates pursuant to the Agreement, whichever is later. Any obligation imposed on Partner under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum.
Governing Law; Jurisdiction. The governing law of this Addendum shall be the governing law as set in the Agreement. The choice of jurisdiction stipulated in the Agreement with respect to any disputes or claims howsoever arising under this Addendum shall be the jurisdiction as set forth in the Agreement.
Materials Breach. Any breach of this Addendum shall constitute a material breach of the Agreement.
Order of Precedence. With regard to the subject matter of this Addendum, in the event of inconsistencies between the provisions of this Addendum and any other agreements between the parties, including but not limited to the Agreement, the provisions of this Addendum shall prevail with regard to the parties’ data protection obligations for Personal Data of a Data Subject from a Member State of the European Union. In the event of any conflict or inconsistency between this Addendum, Annex 2 shall prevail.
Costs of Compliance. Each side will bear its own costs and expenses in order to ensure compliance with this Addendum and the GDPR requirements.
Third Party Rights. Except to the extent set out Section 15.6 a person who is not a party to this Addendum shall have no right to enforce any term of this Addendum. A Linkcard.app Affiliate may enforce any term of this Addendum which is expressly or implicitly intended to benefit it.
Amendment. The rights of the parties to rescind or vary this Addendum are not subject to the consent of any other person, and should be made in writing only.
Changes in Data Protection Laws. Linkcard.app may notify Partner in writing from time to time of any variations to this Addendum which are required as a result of a change in Data Protection Laws including without limitation to the generality of the foregoing, any variations which are (i) required and to the extent required as a result of any changes to UK Data Protection Laws following any exit of the UK from the European Union; or (ii) required to take account of any new data transfer mechanisms for the purposes of Section 12.1. Any such variations shall take effect on the date falling 30 (thirty) calendar days after the date such written notice is sent by Linkcard.app and Partner shall procure that where necessary the terms in each contract between Partner or any Partner Affiliate and each Subprocessor are amended to incorporate such variations within the same time period.
Severance. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either (i) amended as necessary to ensure its validity and enforceability, while preserving the parties’ intentions as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein.
ANNEX 1: DETAILS OF PROCESSING OF LINKCARD.APP PERSONAL DATA
1. This Annex 1 includes certain details of the Processing of Linkcard.app Personal Data as required by Article 28(3) GDPR.
2. Subject matter and duration of the Processing of Linkcard.app Personal Data
3. The subject matter and duration of the Processing of the Linkcard.app Personal Data are set out in the Agreement and this Addendum.
4. The nature and purpose of the Processing of Linkcard.app Personal Data
5. Partner is engaged with Linkcard.app which involve the Processing of Linkcard.app Personal Data. The scope of the engagement is set out in the Agreement, and the Linkcard.app Personal Data will be Processed by the Partner and Partner Affiliates to perform its obligations under the Agreement and to comply with the terms of the Agreement and this Addendum.
6. The types of Linkcard.app Personal Data to be Processed
7. Linkcard.app may submit Personal Data to the Partner, which may include, but is not limited to, the following categories of Personal Data: First name, Last name, User name, Address, Phone number, Email address, Title, Photo, User Social Networks ids and online identifiers, Business information including account name and any other Personal Data or information that Linkcard.app decides to provide to the Partner.
8. The categories of Data Subjects to whom the Linkcard.app Personal Data relates
9. Linkcard.app may submit Personal Data to the Partner, which may include, but is not limited to, Personal Data relating to the following categories of Data Subjects:
a. Linkcard.app employees, agents, advisors or freelancers
b. Linkcard.app prospects, customers, business partners and vendors
c. Any other third party with which Linkcard.app decides to share with the Partner.
10. The obligations and rights of Linkcard.app and Linkcard.app Affiliates
11. The obligations and rights of Linkcard.app and Linkcard.app Affiliates are set out in the Agreement and this Addendum.
The processing operations carried out in relation to the Linkcard.app Personal Data
Collecting and recording the data, hosting the data, organising the data, adapting or altering the data, consulting or retrieving the data, and contacting the data subjects, use the data and perform any necessary processing operations necessary for performing Partner’s obligations under the Agreement, in each case for the purposes of the engagement with Linkcard.app, the scope of which is set out in the Agreement.