Acuerdo Partners Escala

About the Agreement

PLEASE READ THIS PARTNER PROGRAM AGREEMENT CAREFULLY.

This is an Escala Partner Program Agreement (the “Agreement”) between you (the “Partner”, together with other partners, collectively, “Participants” and each individually, a “Participant”) and Exitoweb, Inc. (Escala) (the “Company”). This Agreement describes how the Company and the Partner will work together and other aspects of the business relationship between the Company and the Partner (the “Relationship”).

This Agreement applies to your participation in the Company’s Partner Program (the “Program”) either at the Silver level, Gold level, or Diamond level. These terms are so important that the Company cannot have you participate in the Company’s Program unless you agree to them. Therefore, by participating in the Company’s Program, you are agreeing to these terms, in addition to all other terms and conditions set forth herein, as well as those terms and conditions set forth in the Escala Partner Policies at

https://alianzas.escala.com/politicas-partners

The Company periodically updates all such terms. The Company may also choose to replace such terms in their entirety if, for example, the Program ends, or becomes part of another partner program. If the Company updates or replaces the terms, the Company will let you know via electronic means, which may include by email. If you do not agree to any such update or replacement, you can choose to terminate as described below.

1. Definitions

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Escala Partner Program Agreement and all materials referred to or linked to the Agreement herein.
“Company” means ExitoWeb, Inc.
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential. Whether or not marked or designated as confidential, Confidential Information shall include all information concerning: (a) Disclosing Party's customer and prospect information, including Customer Data and Customer Materials, as defined in the Customer Terms of Service; (b) Disclosing Party's past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research and development materials. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
“Customer Terms of Service” means those terms and conditions located at https://escala.com/terms-of-service, as modified from time to time.
“Escala Lead” means a prospective customer that the Company identifies that may have a need for the services you or another partner offers.
“End User” means the authorized actual user of the Escala Products or the party, on whose behalf, the Partner uses the Escala Products.
"End User Data" means all information that End User, or the Partner acting on End User’s behalf, submits or collects via the Escala Products and all materials that End User, or the Partner acting on End User’s behalf, provides or posts, uploads, inputs or submits for public display through the Escala Products.
"Escala Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that the Company incorporates into Escala Products and all of its other services.
“Escala Products” means both the Subscription Service and Other Products.
“Legitimate Prospect” means a contact, tied to a domain and/or business entity, with which the Partner has established a demonstrable business relationship and who the Partner is actively approaching and engaging with, in a pursuit of a sale.
“List Price” means the standard pricing for the Subscription Service as listed at http://escala.com/pricing/. The Company reserves the right to change such pricing at any time. However, the Company will not apply any price change to End Users who purchase Subscription Service within ten (10) days after such price change.
“Net Revenue” means the initial fee, any renewal fees, and any upgrade or downgrade fees that are actually paid to the Company by an End User or by the Partner for an End User for the Subscription Service. Net Revenue shall: (i) be calculated net of any discounts, taxes payable, and subsequent refunds not due to a contract breach by Escala, and (ii) shall exclude any implementation, customization, training, consulting, or other professional services, or fees for third-party products or services.
“Other Products” means those products and services that the Company offers, which are not included in the Subscription Service. For the purposes of this Agreement, Other Products include any implementation, migration, customization, training, consulting, additional support, or other professional services provided by Escala, or fees for third-party products or services.
“Qualified Transactions” means those transactions that are eligible for a Revenue Share pursuant to Section 3 ‘Qualified Transactions’.
“Partner Revenue Share” means an amount equal to a percent (%) of Net Revenue paid to us by an End User or Partner for a Qualified Transaction.
“Program Policies” means the policies applicable to you which the Company has published at https://alianzas.escala.com/politicas-partners. Your enrollment as a Gold, Silver, or Diamond Partner shall be contingent on fulfillment of their respective Eligibility Requirements as set forth by the Company. For the purposes of this Agreement, if the Company does not notify you that you are accepted to participate in the Program within thirty (30) days from your application, your application is considered to be rejected. Furthermore, failure to complete the eligibility criteria after your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Program and receive any benefits thereof.
“Subscription Service” means the Company’s web-based marketing, sales, and automation software that is subscribed to, and developed, operated, and maintained by the Company, accessible via http://escala.com or another designated URL, and any add-on products that are included with such software, but excluding all Other Products. For the avoidance of doubt, add-on products alone will not be considered Subscription Services.
“User Permissions” means the authorization given to users within an Escala portal that enables them to access specific resources, such as data and applications.
“You” and “Partner” means the party, other than Escala, entering into this Agreement and participating in the Program.

2. Non-exclusivity

This Agreement does not create an exclusive agreement between you and the Company. Both you and the Company will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation, and use of similar services and products of third parties.

You can only participate in the Company’s Program as either a Silver Partner, a Gold Partner or a Diamond Partner at any one time. Your acceptance and participation as a Silver Partner does not mean that you will be accepted into the Company’s Program as a Gold Partner or Diamond Partner. Each level of participation has its own eligibility requirements that must be met and maintained separately.

3. Qualified Transactions

3.a. Partner Rights and Obligations. The Company grants you, subject to the limitations set forth below, a non-transferable, non-exclusive right to: (i) demonstrate and promote the Escala Products to your prospects and customers, and (ii) to provide End Users access to use the Escala Products in accordance with this Agreement and the Customer Terms of Service, provided that End Users agreed to the Customer Terms of Service. At the Company’s discretion, the Company will provide limited sales support to you, such as occasional participation on a call with you and a prospect.

3.b. Compliance with Program Policies. You will comply with the terms and conditions of this Agreement at all times, including the Program Policies applicable to you which are incorporated herein by reference. Specifically, if you are participating in the Program as a Partner, the Partner Program Policies will include requirements that a Partner must complete in order to qualify for a certain partner tier and may also include further details regarding the requirement for the Partner to purchase certain products or services to participate in the Program as a Partner. Furthermore, Partners must meet the Active Engagement (defined in section 3.f., below) requirement for all Qualified Transactions. Failure to comply with the Partner Program Policies may result in termination of this Agreement in accordance with Section 11 of this Agreement or in accordance with any other termination right the Company may have.

You will respect the limits that apply to your use of the Escala products as specified at http://www.escala.com/pricing (the “Service Limits”). The Company may update or change these Service Limits by updating http://www.escala.com/pricing, so the Company encourages you to review this page periodically.

If you use the Company’s Application Programming Interfaces (APIs), developer tools, or associated software, you will comply with the Company’s API Terms, as modified from time to time.

If you use the Escala Partners Marketplace, you will comply with the Company’s Marketplace Terms, as modified from time to time.

3.c. Other Eligibility Requirements. To be eligible for a Revenue Share, a prospect must be registered, accepted, and valid in accordance with Section 3(e) or Section 3(g). You are not eligible to receive a Revenue Share or any other compensation from the Company based on transactions for Other Products, based on transactions with an Escala Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable End User objects to or prohibits such compensation or excludes such compensation from its payments to the Company or its Affiliates; (iii) the Company determines that you are acting, or have acted, in a way that has or may negatively reflect on or affect the Company with respect to a given transaction; (iv) the End User has paid or will pay such commissions, referral fees, or other compensation directly to you; (v) the End User participates in this Program, or (vi) for any transactions with End User that precede in time to you becoming a Partner in this Program under this Agreement. In competitive situations with other Partners, the Company may elect to provide the Revenue Share to the partner that actually secures the business with the End User, which may result in you being ineligible for Revenue Share, regardless of whether or not you registered the prospect.

The Company may terminate this Agreement and/or discontinue Revenue Share payment(s) should you fail to meet any of the eligibility criteria set forth in this subsection of the Agreement or as outlined in the Program Policies at any time.

3.d. Submission, Acceptance and Validity of Prospects. You must register each prospect with the Company using the partner tools the Company provides (or through a website as the Company may designate) prior to the close of a Qualified Transaction. To register a prospect, you must provide at least the following information about each prospect: contact first name, contact last name, email, and phone. The Company generally will accept a prospect who, in the Company’s reasonable determination: (i) is a new potential customer of the Company; (ii) is not, at the time of submission or sixty (60) days prior, one of the Company’s pre-existing customers, involved in the Company’s active sales process, or your Affiliate; (iii) is a Legitimate Prospect whose contact information was legally obtained.

Notwithstanding the foregoing, the Company may choose not to accept a prospect, in the Company’s reasonable discretion. The Company may choose to do so at the time of your registration submission, or the Company may deregister and reject a prospect if it determines a prospect does not meet the criteria outlined in this Section 3(d) at any point after submission, even in cases where it was initially accepted.

A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, (iv) if it exceeds the registered capacity limits or other applicable limits, or (v) after this Agreement is expired or terminated.

Once the valid prospect is ready to purchase, the Company will, at its discretion, accept an order and provision the Subscription Service for the End User in order to complete a Qualified Transaction.

If a prospect does not purchase the Subscription Service before its registration expires, you will need to complete the registration process again in order to re-qualify for Revenue Share for that prospect. Please note that you must have a written and readily available privacy policy and you certify that you are providing the prospect’s information to the Company in accordance with not only all applicable laws and regulation but also in accordance with your own privacy policy.

3.e. Escala Leads. The Company may choose to introduce you to, or send you information on, a prospect of the Company when it identifies that such prospect may have a need for the services you offer (each, an “Escala Lead”). The Company can do the same for other partners of the Company, even if it is for the same Escala Lead. You may use the information about the Escala Lead provided only to market and sell your services to them and not for any other purpose (unless the Escala Lead otherwise consents). Immediately upon the Company’s or the Escala Lead’s request, you will promptly discontinue all use of and delete the Escala Lead’s information. Escala Leads are considered the Company’s Confidential Information and shall be treated in accordance with the ‘Confidentiality’ section below.

3.f. Shared Leads. If the Company decides to participate in the same sales process as you and this results in the sale of the Subscription Service to a prospect that would have otherwise not been valid based on it (i) not being registered, (ii) not being accepted, (iii) being expired, or (iv) exceeding the registered capacity limits or other applicable limits, (each, a “Shared Lead”) and you have an Active Engagement (defined below) with such Shared Lead, then the Company may in its discretion, determine that Shared Lead will be considered a registered, accepted and valid prospect for the purposes of Section 1 and Section 3(c) above. An “Active Engagement” means that you have a fully executed written agreement with the Shared Lead under which you provide your consulting services that (i) either pre-dates the time at which the sale of the Subscription Service is closed, or is signed contemporaneously with the close of the sale of the Subscription Service, and (ii) either extends at least ninety (90) days beyond the close of the sale of the Subscription Service or has a specific and identifiable deliverable, as determined by the Company in its discretion. Escala may request you to provide validation that the End User is engaged with you (for example, by providing a copy of your retainer agreement with the End User if the Company so requests) for managed credit and or sold validation.

3.g. Engagement with Prospects and End Users. The Company may engage with a prospect, lead or End User directly (i) to enable the Company’s Cross Sell program, (ii) to complete the subscription process, (iii) to fulfill or enforce the Company’s obligations under an agreement with such prospect, (iv) to provide support, (v) to conduct the Company’s standard marketing and sales activities with prospects, or (vi) as otherwise permitted by this Agreement.

If and when the Company does engage, the Company may choose how to engage with each prospect and may request that you collaborate with the Company in the engagement. Upon the Company’s request, you will provide the Company with the name and contact information of the prospect and facilitate an introduction. If a prospect is not valid then the Company may choose to maintain it in the Company’s database and the Company may choose to engage with such a prospect.

If the Company requests, you will facilitate the Company’s participation on calls with you and various End User(s). The Company may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the Program.

In a resulting Qualified Transaction, (i) the End User will contract directly with the Company for provision of the Escala Products, or (ii) you will place order(s) and contract with Escala in your own capacity for the Escala Products with the Company, specifying the terms of the Escala Products ordered and providing information about the End User as the Company may request. If you purchase on behalf of an End User, you agree to be responsible for the order placed and to guarantee payment of all fees. Additionally, such subscription may be used only for the End User for which it was originally purchased, and it may not be repurposed for or reassigned to an alternate End User without the Company’s prior written consent.

Regardless of the method of purchase and which party is the contracting entity as established by the order, the Company requires each End User to agree to the Customer Terms of Service when using the portal.

You will take all reasonable steps to ensure that End Users do not use the Escala Products in violation of the Customer Terms of Service. If you discover or have reason to believe that any End User is making use of the Escala Products in violation of the Customer Terms of Service, then you will immediately notify the Company in writing.

4. Revenue Share and Payment

4.a. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement, fulfilled all eligibility requirements to be a Partner under this Agreement and are in compliance with this Agreement; (ii) provided the Company with all of your

account information, including your bank or payment information; and (iii) submitted to the Company all the necessary and valid tax documents and the documents have been approved. Please see the Program Policies for the applicable list of documents that need to be submitted to the Company and the required method of delivery. In order for you to receive the Revenue Share you must have submitted the required documentation set out in this section no later than thirty (30) days after the end of any given fiscal quarter. If the Company has not received such documentation within this timeframe, the Company will not process the Revenue Share payment until the next fiscal quarter payment date for applicable Qualified Transactions.

All payments by Escala will be made by bank transfer, Zelle, or PayPal and it is your responsibility to ensure that you have provided the Company with the most up-to-date and correct payment information to facilitate the transfer. The Company will not issue payment by any other means. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) if any of the requirements set forth in this section, remain outstanding for six (6) months immediately following the close of a Qualified Transaction, or (ii) the Company has attempted to pay you a Revenue Share for a Qualified Transaction by bank transfer, and the attempt was unsuccessful (as confirmed by bank notice), to no fault of the Company; and (iii) the Company reached out to either the Primary Contact, Billing Contact or Decision Maker Contact on your account to obtain the necessary information and have not received a response; and (iv) three (3) months has passed since the date of the initial, failed bank transfer described herein, then your right to receive Revenue Share arising from any and all Qualified Transactions(s) with the associated End User will be forever forfeited (each, a “Forfeited Transaction”). The Company will have no obligation to pay you Revenue Share associated with a Forfeited Transaction.

Once you comply with all of the requirements in this Section 4 then you will be eligible to receive Revenue Share on Qualified Transactions, as long as these Qualified Transactions do not involve the same End User associated with a Forfeited Transaction.

4.b. Revenue Share Payment. The Company, or one of its Affiliates, will pay the Revenue Share amount due to you within forty-five (45) days after the end of each fiscal quarter in an amount equal to the Net Revenue the Company recognizes as revenue from Qualified Transactions during such quarter, multiplied by the Revenue Share percentage. For example, pre-payment in full by an End User for an annual commitment will be recognized by the Company as revenue quarterly on a pro-rata basis for the length of time the Subscription Service was provided during each quarter during the annual term, and you will receive the Revenue Share on that same quarterly pro-rata basis. The Company will determine the currency in which the Company pays the Revenue Share, as well as the applicable conversion rate. The currency in which the Revenue Share is paid may be different from the currency that applies to the Qualified Transaction. The Company will not pay more than one Revenue Share or other similar referral fee on any given partner sale (unless the Company chooses to in its discretion). The Company may withhold the Revenue Share payment until the Revenue Share amount that the Company owes you is above $100 USD.

4.c. Taxes. You are responsible for the payment of all taxes applicable to the Revenue Share. All amounts payable by the Company to you are subject to offset by the Company against any amounts owed by you to the Company.

4.d. Payment Obligations. In the event you placed the order and contracted with the Company directly for an End User, for payments made by credit card, you will provide the Company with your valid and updated credit card information or bank account information for the payment of Escala Products fees. You authorize the Company and its Affiliates to charge your credit card or bank account for all fees payable. You also authorize the Company and its Affiliates to use a third party to process payments, and consent to the disclosure of your payment information to such third party. For payments made by invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice. In the event you placed the order with the Company for an End User, if you do not pay fees due for an End User’s account within ten (10) days after notice of non-payment from the Company or its Affiliate, the Company may suspend the Escala Products while any payment is delinquent and may charge a reactivation fee to reinstate any Escala Products. The Company may also terminate or suspend the End User’s access to the Escala Products and/or to initiate direct communication with the End User. Notwithstanding the expiration or earlier termination of this Agreement, you remain obligated to pay all fees due for the Company’s provision of the Escala Products to End Users in connection with an order placed with the Company by you for an End User. If you placed the order with the Company for an End User and/or contracted with the Company on the End User’s behalf, you will have sole responsibility for invoicing and collecting fees for the Escala Products from the End User. Your obligation to pay fees to the Company is not conditioned upon your receipt of payment from the End User.

5. Training and Support

5.a. Training and Support. The Company will make available to you, without charge, various webinars and other resources made available as part of the Company’s Program. The Company will also make available to you a Partner Toolset. The Company may change or discontinue any or all parts of the Partner Toolset, and any other Program benefits or offerings at any time without notice.

5.b. End User Training and Support. The Company may require End Users to go through and/or purchase the Company’s standard Escala implementation service. The Company will provide user training purchased by an End User as set forth in a mutually agreed upon order between the End User and Escala. The Company may communicate directly with any End User about the use of the Escala Products and any support issues experienced.

5.c. Escala Demo Account. If the Company makes an Escala Demo Account available to you, then you will use the Escala Demo Account solely for your own education, demonstration, and evaluation purposes. You are not permitted to use it for any other purpose. You will not lease, distribute, license, sell or otherwise commercially exploit the Escala Demo Account. You will not use any End User data or Customer Data (as defined in the Customer Terms of Service) with the Escala Demo Account. You can only use your own data (data and information that you specifically own) or the synthetic data provided to you for demonstration purposes by Escala. You will not exceed the contact limits provided for you in the Escala Demo Account and will utilize a reasonable number of objects in your use of the Escala Demo Account. The Customer Terms of Service apply to your use of the Escala Demo Account. As indicated in the Customer Terms of Service, you will comply with the Company’s Acceptable Use Policy at https://escala.com/terms-of-service with respect to your use of the Escala Demo Account. The Company reserves the right to suspend, modify, or discontinue any or all parts of the Escala Demo Account at any time without prior notice to you. In the event of a conflict between the terms that apply to the Escala Demo Account as specified in this Agreement and the Customer Terms of Service, the terms of this Agreement shall control.

6. Optional Partner Programs

The Company may from time to time offer you optional tools, beta testing programs, or partner promotions (the “Optional Programs”). If you choose to use any Optional Programs, you grant the Company all rights and permissions to take all actions reasonably necessary to effectuate the purpose of the Optional Programs. If the Optional Programs include the Company making certain promotions available to its partners, you will: (i) market and promote the promotion only to your registered and valid prospects, (ii) only market and promote the promotion individually within a distinct sales process, and not engage in any form of mass marketing of the promotion, and (iii) will follow the all the other terms and criteria applicable to that specific promotion as the Company designates.

The Company may discontinue all or a portion of any Optional Programs at any time.

Additional terms may apply to your participation in Optional Programs. The Company will make any additional terms available to you for your review at the time of the offer to participate in such Optional Programs.

7. Trademarks

You grant to the Company a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks, and logos (“Participant Marks”) in connection with the Program and this Agreement.

The Company retains all ownership rights in Escala Trademarks. During the term of this Agreement, you may use the Company’s trademark as long as you follow the usage requirements in this section and the incorporated guidelines. You must: (i) only use the images of the Company’s trademarks that the Company makes available to you as part of your participation in this Program (e.g., certified partner badges), without altering them in any way; (ii) only use the Company’s trademarks in connection with the Program and this Agreement; (iii) comply with this Agreement, and (iv) immediately comply if the Company request that you discontinue use.

You must not use any of the Company’s trademarks: (a) in a misleading or disparaging way; (b) outside the scope of the Program or this Agreement; (c) in a way that implies the Company endorses, sponsors, or approves of your services or products; or (d) in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

8. Proprietary Rights

8.a. Escala’s Proprietary Rights. No license to any software is granted by this Agreement. The Escala Products are protected by intellectual property laws. The Escala Products belong to and are the property of the Company or its licensors (if any). The Company retains all ownership rights in the Escala Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Escala Content, or the Escala Products in whole or in part, by any means, except as expressly authorized in writing by the Company. Escala, the Escala logos, and other marks that the Company uses from time to time are the Company’s trademarks and you may not use them without the Company’s prior written permission, except as otherwise set forth in this Agreement.

The Company encourages all customers and partners to comment on the Escala Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that the Company owns all rights to use and incorporate them into the Escala Products, without payment to you.

8.b. End User’s Proprietary Rights. As between you and End User, End User retains the right to access and use the End User portal associated with the Escala Products regardless of whether you placed the order with the Company for an End User or made or make payments for an End User. End User will own and retain all rights to the End User Data. If the Company deems it to be necessary based on the relationship status between you and the End User or the particular situation, the Company may communicate directly with the End User and/or may port ownership of the portal associated with the Escala Products to the End User.

8.c. User Participation Disclosure. Please note that any End User portal may have more than one Partner involved in their use of the Escala Products. All information and data about you in the End User portal may be visible to all users of the End User portal and will not be considered Confidential Information between you and other users of the portal. It is the End User’s responsibility to set the User Permissions to control the access and visibility of all information and data in the End User portal.

9. Confidentiality

9.a. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

9.b. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena, or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.

9.c. Injunctive Relief. Each party acknowledges that the unauthorized use or disclosure of the other party’s Confidential Information may cause irreparable harm to the other party. Accordingly, each party agrees that the other party will have the right to seek an immediate injunction against any breach or threatened breach of this Section 9, as well as the right to pursue any and all other rights and remedies available at law or in equity for such a breach.

10. Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, "do not call" and "do not send" requests, including without limitation such requests from the Company related to Escala Leads and Shared Leads. For the duration of this Agreement, you will establish and maintain a privacy policy that is compliant with all laws and regulations applicable to you and you shall establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests.

11. Term and Termination

11.a. Term. This Agreement will apply for as long as you participate in the Program and fulfill all the participation requirements under the Program, until terminated.

11.b. Termination Without Cause. Both you and the Company may terminate this Agreement on thirty (30) days written notice to the other party.

11.c. Termination for Agreement Changes. If the Company updates or replaces the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to the Company, provided that you send the Company written notice within ten (10) days after the Company sends you notice of the change.

11.d. Termination for Cause. The Company may terminate this Agreement and/or suspend your or the End User’s access to the Escala Products: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) automatically, within thirty (30) of you failing to meet the Program requirements applicable to you in your capacity as either the Silver Partner or the Partner; (iii) upon fifteen (15) days’ notice to you of non-payment of any amount due to the Company if such amount remains unpaid at the expiration of such period, (iv) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (v) immediately, if the End User violates the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (vi) immediately, if you breach your confidentiality obligations under this Agreement or infringe or misappropriate Escala’s intellectual property rights, (vii) immediately, if you breach the terms applicable to your subscription with the Company, including if you default on your payment obligations to the Company or its Affiliate, or (viii) immediately, if the Company determines that you are acting, or have acted, in a way that has or may negatively reflect on or affect the Company, its prospects, or its customers.

11.e. Effects of Expiration/Termination. Expiration or termination of this Agreement for any reason does not terminate your Subscription Service or any Subscription Service you may have purchased on an End User’s behalf. Your purchase and use of the Subscription Services are governed by the Customer Terms of Service. Otherwise, expiration of this Agreement, and termination of this Agreement: (i) without cause by the Company, (ii) by you with cause, (iii) by you according to Section11(c) above, shall not affect the Company’s obligation to pay you any earned Revenue Share, so long as the related payment by the End User is recognized by the Company within thirty (30) days after the date of such termination or expiration. If you are a Partner you will receive one (1) last payment of Revenue Share upon completion of the quarter in which the related payment by the End User is recognized. In no event shall you be entitled to payment of Revenue Share as both the Silver Partner and the Gold or Diamond Partner for the same Qualified Transaction. If at any point you are eligible to receive a Revenue Share payment under this Agreement as a Silver Partner that payment amount will not change based on your participation in the Program as a Gold Partner. For example, you will not be able to receive the Revenue Share set out in this Agreement as a Gold Partner on any Qualified Transaction that was completed while participating in the Program as a Silver Partner and vice versa. The Company will not pay you fees on End User payments recognized by the Company after thirty (30) days after the date of such termination or expiration. Provided, however, in the event of termination without cause by you, or for cause by the Company, the Company’s obligation to pay and your right to receive any Revenue Share will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Revenue Share prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Revenue Share after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete all Escala Leads and Shared Leads if the Company provided them to you and you do not otherwise have consent from the applicable Escala Lead or Shared Lead to continue using their data and information. Upon termination or expiration, a prospect is not considered valid, and the Company may choose to maintain it in the Company’s database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of the Company’s trademark and will remove all Escala badges and references to this Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause your or an End User’s subscription agreement to be terminated.

12. Partner Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to the Company for the Company’s use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to the Company, its right to use the Participant Marks.

13. Indemnification

You will indemnify, defend and hold the Company harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against the Company (and its officers, directors, employees, agents, service Silver Partners, licensors, and affiliates) by a third party not affiliated with the Company to the extent that such Action is based upon or arises out of (a) your participation in the Program, (b) the Company’s use of the prospect or lead data you provided the Company, (c) your noncompliance with or breach of this Agreement, (d) your use of or participation in the Optional Programs, (e) your use of the Escala Demo Account, or (f) the Company’s use of the Participant Marks. The Company will: notify you in writing within thirty (30) days of the Company becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on the Company; (ii) requires the Company to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on the Company without the Company’s prior written consent.

14. Disclaimers; Limitations of Liability

14.a. Disclaimer of Warranties. THE COMPANY AND ITS AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE ESCALA PRODUCTS, ESCALA CONTENT, THE PROGRAM, THE OPTIONAL PROGRAMS, OR THE ESCALA DEMO ACCOUNT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE ESCALA DEMO ACCOUNT MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE ESCALA PRODUCTS, ESCALA CONTENT, THE PROGRAM, THE OPTIONAL PROGRAMS, AND ESCALA DEMO ACCOUNT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. THE COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE ESCALA PRODUCTS, ESCALA CONTENT, THE PROGRAM, THE OPTIONAL PROGRAMS, AND ESCALA DEMO ACCOUNT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

14.b. No Indirect Damages. EXCEPT FOR YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER SECTION 9, AND YOUR LIABILITY FOR VIOLATION OF THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

14.c. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, THE COMPANY IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE COMPANY’S AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED QUALIFIED TRANSACTION IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. IN THE EVENT THAT THE CLAIM ARISES FROM OR IS RELATED TO THIS AGREEMENT BUT IS NOT RELATED TO A SPECIFIC QUALIFIED TRANSACTION, THE COMPANY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION SERVICES FEES PAID BY PARTNER OR SILVER PARTNER TO ESCALA IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

14.d. Escala Demo Account and Optional Programs. THE COMPANY DISCLAIMS ALL LIABILITY WITH RESPECT TO THE ESCALA DEMO ACCOUNT AND THE OPTIONAL PROGRAMS THAT YOU USE. THE COMPANY DOES NOT PROMISE TO MAKE THE ESCALA DEMO ACCOUNT OR OPTIONAL PROGRAMS AVAILABLE TO YOU, AND THE COMPANY MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN ITS DISCRETION.

15. Non-solicitation

You agree not to intentionally solicit for employment any of the Company’s employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and the Company acknowledge that (i) any public job posting or public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either the Company’s employees or contractors.

16. General

16.a. Amendment; No Waiver. The Company may update and change any part or all of this Agreement, including by replacing it in its entirety. If the Company updates or changes this Agreement, the updated Agreement will be posted at https://alianzas.escala.com/acuerdo-partners (or other designated URL) and the Company will provide notice through an in-app notification in your portal or by email. The updated Agreement will become effective and binding on the next business day after it is posted. When the Company changes this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version. The Company encourages you to review this Agreement periodically.

If you don’t agree to the update, change or replacement, you can choose to terminate as described above.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

16.b. Applicable Law. This Agreement shall be governed by the laws of the State of Florida, without regard to the conflict of laws provisions thereof. In the event either of the parties initiate an action in connection with this Agreement or any other dispute between the parties, the exclusive venue, and jurisdiction of such action shall be in the state and federal courts in Miami, Florida.

16.c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

16.d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

16.e. Relationship of the Parties. Both you and the Company agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this Agreement.

16.f. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws, privacy regulations and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal, or unethical marketing activities, or activities that otherwise may be detrimental to the Company, its customers, or the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Escala Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Escala Products to prohibited countries or individuals or permit use of the Escala Products by prohibited countries or individuals.

16.g. Data Processing. To the extent that any Personal Data is processed in connection with the Program the terms set forth in the Escala Business Partner Data Processing Agreement (posted at: https://legal.Escala.com/business-partner-dpa), which are hereby incorporated by reference, shall apply.

16.h. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

16.i. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt:

To: Exitoweb, Inc, 1688 Meridian Ave, Suite 700, Miami Beach, FL 33139

Attention: VP of Marketing.

To you: your address as provided in your Escala portal account information. The Company may give electronic notices by general notice through an in-app notification in your portal and may give electronic notices specific to you by email to your email address(es) that the Company has on record in its account information for you. The Company may give notice to you by telephone calls to the telephone numbers on record in its account information for you. You must keep all of your account information with Escala current.

16.j. Entire Agreement. This Agreement is the entire agreement between the parties for the Program and supersedes all other proposals and agreements, whether electronic, oral, or written, between the parties. The Company objects to and rejects any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. The Company’s obligations are not contingent on the delivery of any future functionality or features of the Escala Products or dependent on any oral or written public comments made by the Company regarding future functionality or features of the Escala Products. It is the express wish of both you and the Company that this Agreement and all related documents be drawn up in English. The Company might make versions of this Agreement available in languages other than English. If the Company does, the English version of this Agreement will govern the Relationship, and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

16.k. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without the Company’s prior written consent. The Company may assign this Agreement to any Affiliate or in the event of merger, reorganization, sale of all or substantially all of the Company’s assets, change of control, or operation of law.

16.l. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

16.m. Program Policies. The Company may change the Program Policies from time to time. Your participation in the Program is subject to the Program Policies, which are incorporated herein by reference. The Program Policies can be found here: https://alianzas.escala.com/politicas-partners, the Company encourages you to review the Program Policies periodically.

16.n. No Licenses. The Company grants to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to the Company, the Escala Products, the Company’s trademarks, or any other property or right of the Company.

16.o. Sales by Escala. This Agreement shall in no way limit the Company’s right to sell the Escala Products, directly or indirectly, to any current or prospective customers.

16.p. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

16.q. Survival. The following sections shall survive the expiration or termination of this Agreement: Section 4 ‘Revenue Share and Payment’, Section 8 ‘Proprietary Rights’, Section 9 ‘Confidentiality’, Section 11(e) ‘Effects of Termination/Expiration’, Section 13 ‘Indemnification’, Section 14 ‘Disclaimers; Limitation of Liability’, Section 15 ‘Non-Solicitation’ and Section 16 ‘General’.

Escala Partners Agreement

Acuerdo de Partners Escala

Questions or concerns?

Feel free to reach out to our team at alianzas@escala.com
We'll happily assist you!

Escala Partners Agreement

Acuerdo de Partners Escala

Questions or concerns?

Feel free to reach out to our team at alianzas@escala.comWe'll happily assist you!

Feel free to reach out to our team at alianzas@escala.com
We'll happily assist you!