Partner Referral Agreement

1. Scope of Use. Subject to Partner’s full compliance with the Agreement, Gen grants to Partner a limited, revocable, non-exclusive, non-transferable right, during the Term and within the Territory, to use and distribute the Link as provided by Gen, to End Users only, for the purpose of the End User Offer as further described in the Partner Referral Initiative.
2. Breach of Scope of Use. Where Gen determines in its sole discretion that the Link and/or Partner Referral Method has been misused or distributed in any manner other than as set out in the Agreement, Gen shall have the right at its sole option to: (i) replace and reissue a replacement Link and/or Promo Code to Partner or require that the Partner Referral Method be rectified to Gen’s specification and/or (ii) deactivate the Link and the associated Referral Store; and/or (iii) terminate the Agreement upon written notice; with immediate effect.
3. Reservation of Rights. Partner acknowledges and agrees that (i) all right, title, and interest in the Gen Product, the Link, the Gen Websites and all related domain names, links, URLs and content, including the License and Services Agreement (LSA) belong to Gen and (ii) Gen may modify the content and functionality of the Gen Websites at any time in its sole discretion. Gen will use reasonable commercial efforts to notify Partner of material changes to the Gen Product or Gen Websites and any Link modifications directly impacting Partner’s distribution obligations under the terms of this Agreement.
4. End User Offer Process. Partner is responsible to (i) provide End Users access to the Link from a Secure Area; (ii) authorize End Users via an authentication process; (iii) ensure the Partner Referral Method is in compliance with this Agreement and the requirements and restrictions specified in the Partner Referral Initiative; and (iv) establish and explain to End Users any End User Offer requirements in accordance with applicable law.
5. End User Transactions: Partner acknowledges that by following Gen’s instructions and applying the single-use Promo Code provided by Partner, End User can purchase the Gen Product at the End User offer price set out in the Partner Referral Initiative. The overall number of Promo Codes made available to each End User by Partner shall not exceed one (1) per Gen Product(s) made available under the Agreement. Partner acknowledges that the Gen eStore terms of sale will apply to all transactions with End Users and use of the Gen Product by End Users is subject to the LSA. If Gen deems that the End User is purchasing the Gen Product via fraudulent means or for fraudulent actions, Gen shall have the right to reject such transaction and cancel some or all Promo Codes provided to Partner. Gen Product(s) will cease to be available for purchase under the Agreement at the end of the Term and such end user offer prices may be cancelled in advance of such period by Partner or Gen.
6. New and Amended Products. Gen may, at any time and in its sole discretion: (i) modify or amend the Gen Products and the LSA; (ii) add to or discontinue the Gen Products, or provide new product and service offerings to End Users (in such cases Gen shall notify Partner as soon as reasonably practicable); and/or, (iii) increase, decrease, or otherwise determine the End User offer price for new Gen Products (“New Gen Products”). The Parties agree that Gen may unilaterally supplement and amend the Partner Referral Initiative to include New Gen Products and shall provide notice of such changes to Partner and its Associated Entities and Affiliates.
7. Associated Entities and Affiliates. Partner must provide a copy of the Agreement, and all applicable documentation, to each Affiliate and Associated Entity and will ensure that each Affiliate and Associated Entity will comply with such terms and conditions. Periodically, Partner will provide a list of all Affiliates and Associated Entities to Gen. Partner will be fully responsible and liable for all Affiliates and Associated Entities.
8. Enrolment Requirements. Partner acknowledges that an End User must comply with all applicable enrolment requirements specified by Gen to activate an Gen Product as specified on the Gen eStore. If such information is not received by Gen, Gen reserves the right, in its sole discretion, to cancel, limit, or downgrade as applicable, the Gen Product for such End User. Some Gen Products may contain certain features including but not limited to credit score and credit alerts and/or available service plans (“Certain Features”), which require the consent of End User and additional action by End User to activate the Gen Product. If an End User, does not take the applicable action and/or is unable to be verified, Gen reserves the right, in its sole discretion, to cancel, limit, or downgrade the Gen Product for such End User. This may result in Certain Features (a) not being made available, and/or (b) a rate and tier change being applied for such End User. Where a rate or tier change is applied by Gen, Partner acknowledges that Revenue Share will be applied against this revised rate or tier change.
9. Use of Trademarks. Neither Party has paid any consideration for the use of the other Party’s trademarks, logos, copyrights, trade names or designations, and nothing contained in this Agreement will give either Party any interest in any of them. Each Party grants the other Party a non-exclusive, non-transferable royalty free licence to use in the Territory the Trademarks, solely as are reasonably necessary in order to advertise, promote, market and sell the Gen Product as authorised under this Agreement. Partner will comply with Gen’s trademark guidelines currently listed at https://www.nortonlifelock.com/us/en/legal/trademark-policies/, and all other branding guidelines as provided by Gen from time to time. Any goodwill in either Party’s Trademarks that results from the other Party’s use shall inure solely to the benefit of the respective Party owning the Trademark. Partner will provide Gen with samples of any marketing materials containing Gen Trademarks. Each Party shall cease or suspend use of the other Party’s Trademarks in any marketing material without undue delay if notified in writing that the use does not comply with the respective Party’s marketing and trademark guidelines.
10. Press Releases; Marketing Materials. The Parties shall not issue any: (i) press release; and/or (ii) Marketing Materials concerning the other Party or the Agreement without the other Party’s prior written approval. Partner represents and warrants that: (a) every marketing activity in relation to this Agreement is in compliance with then current industry standards and all applicable laws and (b) all e-mail messages concerning the Gen Product shall clearly identify to the recipient that the email is being sent by Partner and not Gen. Where the Partner Referral Method applies Partner must strictly adhere to the provisions set out in the Partner Referral Initiative. Any deviations from the stated requirements shall be deemed a material breach of the Agreement.
11. DRS Reporting, Disbursement and Tracking. Where Revenue Share is indicated in the Partner Referral Initiative, Gen will within sixty (60) days after the end of the calendar quarter (“Quarter”), pay Partner an amount equal to the Revenue Share during the applicable Quarter. Revenue Share is only payable for those subscriptions which Gen is reasonably able to Track and shall only be payable during the Term. No DRS shall be payable upon termination or expiry of the Agreement. To allow for Gen Product returns, the final payment under this Agreement shall not be due until seventy-five (75) days after the final Quarter of the Term. To the extent that Net Revenue from Click-Through Sales is not maintained at or above Two Thousand US Dollars (US$2,000.00) (or local currency equivalent) per Quarter, Gen's obligation to pay the Revenue Share shall automatically not apply for that Quarter and there shall be no carryover from prior or to subsequent Quarters. Revenue Share payments to Partner shall be reassessed on a Quarter by Quarter basis in accordance with this provision.
12. Taxes, Tariffs, Fees. Gen's prices, subscription and subscription renewal fees do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which Gen may be required to pay or collect upon the sale or delivery of Gen Products or upon collection of the sales price (“Tax”).
13. Waiver of Indirect and Consequential Damages.
    1. Gen shall not be liable to Partner for i) any indirect, or consequential damages; or ii) the loss of goodwill or loss of reputation or wasted management and staff time or anticipated profits (whether direct, indirect or otherwise) arising from any performance or breach or termination or expiration of this Agreement, even if notice is given of the possibility of such damages.
    2. Notwithstanding the foregoing, nothing in this Agreement shall seek to exclude Gen’s liability for fraudulent misrepresentation, willful misconduct, gross negligence, death, personal injury or any other liability to the extent such liability cannot be limited by applicable law.
14. Limitation of Liability. The liability of Gen under this Agreement shall be limited to the lesser of: (i) the net revenues received by Gen pursuant to this Agreement during the twelve (12) months prior to the event giving rise to such liability; or (ii) US$50,000.
15. Partner’s Acknowledgment. Partner acknowledges that Sections 13 and 14 have been included as a material inducement for Gen to enter into this Agreement and that Gen would not have entered into this Agreement but for the limitations of liability as set forth above.
16. Confidentiality. Each Party will not disclose the terms contained in this Agreement or the applicable Partner Referral Initiative or use any of the other Party’s Confidential Information except in the performance of this Agreement and shall protect the other Party’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information. Each Party will provide notice to the other Party (i) immediately after learning of or suspecting a breach of any of the Confidential Information or (ii) immediately upon receiving a request to disclose any Confidential Information, unless prohibited by law. The Parties agree that any breach of this Section 16 shall entitle the respective Party to seek equitable relief such as an injunction in addition to all other remedies provided by this Agreement or available at law. The Parties agree that End User Information is owned by, or its primary right for use, access and disposal is given to, Gen under applicable laws. Without prejudice to the foregoing and to enable undisrupted use of Gen Products by End Users, upon termination of this Agreement, the receiving Party will return to the disclosing Party or delete any Confidential Information upon written request.
17. Termination. Either Party may terminate this Agreement for material breach with immediate effect if such breach is not cured within thirty (30) days after written notice of such breach. Each party may terminate this Agreement without cause upon sixty (60) days’ written notice to the other Party. In case of insolvency of either Party the Agreement ends with immediate effect. Upon any expiration or termination, the rights granted under this Agreement are immediately revoked. Each Party shall cease its use of the other Party’s Trademarks and the Links within ten (10) days of any termination at will or expiration of this Agreement and within twenty-four (24) hours for a termination for breach. Neither Party shall be liable to the other Party for damages of any kind, including indirect or consequential damages, on account of the expiration or termination of this Agreement in accordance with its terms.
18. Governing Law; Jurisdiction. If Partner is based in EMEA: The laws of Ireland. Venue for any legal action will be the Irish courts, Dublin; If Partner is based in Japan: The laws of Japan. Venue for any legal action will be the Japanese courts; If Partner is based in the Asia Pacific region: The laws of Singapore. Venue for any legal action will be the courts of Singapore. If Partner is based in the Americas: The laws of California. Venue for any legal action will be the courts of Santa Clara County, California. The English language version of the Agreement will prevail in the event of any translations. Partner waives any right to have this Agreement officially written in the language of the applicable Territory where applicable.
    
19. Assignment, Severability. Any assignment or delegation under this Agreement shall be subject to Gen’s prior written approval. If any provision of this Agreement is deemed invalid by an applicable court, it will be considered deleted, unless the court can modify said provision to make it valid and enforceable. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
20. Notices. Administrative communications (such as routine price list updates) may be transmitted electronically (including e-mail). All other notices and demands under the Agreement shall be in writing and sent to the receiving party at the address listed in the Partner Referral Initiative (and in the case of Gen addressed to the attention of the Gen Legal Department); provided, however, that a copy by mail to Partner is not required if notice is sent by Gen by e-mail and acknowledged by Partner.
21. Compliance with Laws. Each Party will comply with all applicable laws and regulations, including but not limited to laws regarding promotions, consumer protection, privacy, intellectual property, export compliance and anticorruption laws, the Foreign Corrupt Practices Act, U.K. Bribery Act 2010 and laws of the U.S. Department of the Treasury, Office of Foreign Assets Control; and further obtain and maintain in effect all required licenses, permits and authorizations.
22. Timeframe for Legal Actions and Claims. Any legal action arising in connection with this Agreement must be filed within one (1) year of the date that such cause of action arises. All statutory limitation periods (whether arising in contract, tort or otherwise) are expressly excluded. In addition, if Partner does not claim any applicable funds within six (6) months of the end date of the applicable Gen Quarter within which the funds are due, such funds will not be payable by Gen in any event.
23. Miscellaneous. The Parties agree that this Agreement is the result of negotiations between sophisticated parties and thus any principle of construction, legal doctrine or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement, shall not apply to the terms and conditions of this Agreement. This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all previous agreements and representations of or on behalf of the Parties with respect to the subject matter of this Agreement; and may not be modified except by written amendment to this Agreement. Each Party’s waiver or failure to exercise any right or to require any performance of a duty under this Agreement shall not be deemed a waiver of any further such right or duty. Neither Party is an agent of the other Party. It has no right to (i) represent or bind the other Party, (ii) assume or create any obligation or (iii) make any warranty, guarantee or representation about the other Party.

“Affiliate(s)” means, for Gen, the Gen group of companies; for Partner it means an entity controlled by, under common control with, or controlling a Party, where control is denoted by having (directly or indirectly) more than fifty percent (50%) of the voting power (or equivalent) of the applicable entity.
“Agreement” means these Terms and Conditions and the Partner Referral Initiative as applicable.
“App” means a mobile device application, connecting End User devices to the Link.
“Associated Entity(ies)” means any entity, other than Affiliates, with which Partner has a formalized written relationship, including an agency, through which Partner markets the Gen Products to End Users.
“Click-Through Sale” means each completed sale that is directly Trackable to End Users who complete an Gen Product purchase transaction, when such transaction originated from the Referral Store or related Link(s), an App, Partner Referral Method, or from any other path created by Gen specifically for Partner, including but not limited to, in-product messaging or other Tracking source. Click-Through Sale shall not include purchase transactions where the sale originates from any other source. If an End User utilizes multiple paths from different sources to reach the sales cart, then the last Trackable path to the cart shall constitute the Click-Through Sale and only the partner or source for which the last path was created shall be recognized for the completed Click-Through Sale. For purposes of Subscription Renewals, Click-Through Sale includes each Subscription Renewal that is directly Trackable to End Users of the Gen Renewal Center who complete the purchase transaction originating from the Promo Code only, and not from any other origination point or source.
"Confidential Information" means the non-public information that is exchanged between the Parties, provided that such information is: (i) marked “confidential” or with a similar legend, (ii) disclosed in any other manner and identified as confidential at the time of disclosure by the disclosing party, or (iii) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information.
“End Date” means the date specified in the Partner Referral Initiative.
“End User(s)” means Partner’s customers/employees as applicable and in the Territory only, who in each case have been authenticated and/or confirmed eligible for the Promo Code by Partner.
“End User Experience” means the full description of how the Partner will make available the End User Offer to its End Users as specified in Section 4 of the Partner Referral Initiative.
“End User Information” means End Users’ personal information as obtained or collected by, or on behalf of, Gen at such time that the End User acquires the Gen Product specified in the End User Offer.
“End User Offer” means Partner's presentation to End Users of the applicable end user offer price on the Gen Product as specified in the Partner Referral Initiative, either via a Link to i) the Referral Store or ii) the Partner Referral Method. This may be initiated by Partner via email, web content, flyer, an App or other directed communication to End Users and includes a description of the applicable end user offer on the Gen Product.
“Launch Date” means the date on which Gen makes the Referral Store or Partner makes the Partner Referral Method available to Partner’s End Users.
“Link” means use of a visible graphic or textual indication located within a page, web site or web page which, when selected by an End User's browser, directs the End User's internet browser connection onward to i) the Referral Store or ii) Partner Referral Method and which establishes a direct connection between the browser and the Referral Store or the Partner Referral Method.
“Marketing Material” means any marketing materials, press releases, advertisements, website content or other communication about this Agreement, the Gen Product or the End User Offer.
“Net Revenue” shall mean and be calculated on a quarterly basis as follows: the (x) purchase price paid by End Users for Gen Products sold through the Referral Store or the Partner Referral Method as a result of Click-Through Sales, which price is due to Gen, less (y) returns, Taxes, and operational expenses associated with the processing and fulfillment of such Gen Product (including credit card processing fees, costs of goods sold, costs of providing services or related external vendor fees).
“Gen eStore” means the Gen ecommerce platform or backend containing the Gen-branded electronic store to which the Referral Store or the Partner Referral Method is connected, where (i) Gen offers the Gen Products for purchase (ii) the actual order and sales mechanism for obtaining Gen Products resides and (iii) all Gen Products sales transactions occur.
 “Gen Websites” means, collectively, the html websites owned, developed and maintained by Gen or Gen’s fulfillment company and made available pursuant to the terms of the Agreement. Gen Websites include, but are not limited to, the Referral Store and Gen eStore.
“Partner Referral Initiative” means the separate document executed by the Parties which details the referral arrangement, end user offer, End User Experience, and any joint marketing activities, as applicable.
“Partner Referral Method” means a connection to the Gen eStore other than via the Gen Referral Store. Such referral method is fully described in the End User Experience section in the Partner Referral Initiative and may include by way of example, Partner landing pages. Partner will use the agreed Partner Referral Method to make the End User Offer available to its End Users and may link directly to the Gen eStore or reference the Gen eStore. Use of the agreed Partner Referral Method is strictly subject to Partner complying with all requirements and/or restrictions specified by Gen in the Partner Referral Initiative.
“Partner Site” means, the Partner website located at the URL set forth in the Partner Referral Initiative or notified by Partner to Gen in writing prior to the Launch Date and from which the End User Offer will be presented to End Users, subject to an End User authentication process for access purposes and in accordance with the End User Experience described in the Partner Referral Initiative.
“Referral Store” means a web page created and hosted by Gen, that features the Gen Product and that is linked to the Gen eStore. The availability of the Referral Store is subject to the Launch Date.
“Party” & “Parties” means Gen and Partner either individually or collectively.
“Promo Code” means a unique Gen reference code used in a referral campaign in order to provide certain campaign specifications, including but not limited to the Gen Referral Store (if applicable), the Gen product offering, any applicable end user offer price (if any) and to assign Partner attributes for Tracking purposes. Promo Codes may be provided directly to Partner as an actual code or may be embedded in a URL provided to Partner to link to the eStore.
“Renewal Center” means Gen’s online renewal center which enables existing End Users to renew their existing Gen Product subscription.
“Revenue Share”/”DRS” means a percentage revenue share of the Net Revenue for each respective first time purchase or Subscription Renewal, as applicable, under this Agreement during the Term. The applicable percentage of the Revenue Share for the purposes of this Agreement is set forth in the Partner Referral Initiative.
“Secure Area” means an area of the website and/or servers controlled by Partner which are considered “secure” in accordance with then-current and prevailing industry standards and as agreed with Gen in writing.
“Subscription Renewal” means an End User’s election, following the expiry of the initial subscription term (whether on an annual, multi-year or partial year basis) of the Gen Product, to pay an additional sum in order to continue to receive subscription updates of the Gen Product for the forthcoming year(s) as applicable. Such additional purchase is made by End User via the Gen eStore or otherwise directly to Gen, following a systematic prompt from the Gen Product.
“Term” means from the Effective date until End Date unless terminated earlier pursuant to the Agreement.
“Trademarks” means the respective trademarks, service marks, trade names, logos and other distinctive brand marks of either Party that are used for the purposes of this Agreement.
“Track or Tracking” or “Trackable” means a method of tracking the sales activity via the then current technology implemented by Gen (which tracking ability may vary from region to region and which technology is subject to change at Gen’s sole discretion), which includes all first purchases and Subscription Renewals of the Gen Product purchased on the Referral Store, that have an associated unique Promo Code. Tracking does not apply to Subscription Renewals of any Gen product that is purchased later as an upsell (i.e. same Gen product, but with different device number) /cross-sell (i.e. different Gen product).
“Year” will be calculated as follows for the purpose of this Agreement: (i) “Year One” is the time from the Launch Date up to and including the applicable one year anniversary date (e.g. 1st January up to and including 31st December) and (ii) any subsequent “Year [N]” means the time from the end of the preceding year up to and including the applicable one year anniversary date.
 

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