Shogun Labs, Inc. Partner Agreement

This Enterprise Partner Referral Agreement (this “Agreement”) is entered into by and between Shogun Labs, Inc. (“Shogun” or “we” or “our”), and the enterprise referral partner (“Partner” or “you”) accepting this Agreement. This Agreement governs Partner’s participation as a referral Partner in the Shogun Partner program (“Shogun Partner Program”).

To be eligible to enroll in the Shogun Partner Program, you must review and accept the terms of this Agreement. PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, WHETHER BY SUBMITTING A PARTNER APPLICATION FORM, CLICKING “I AGREE” OR OTHER WORDS TO THAT EFFECT, CHECKING THE APPLICABLE BOX, OR OTHERWISE ENROLLING IN THE SHOGUN PARTNER PROGRAM, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT APPLY TO OR OTHERWISE ENROLL IN THE SHOGUN PARTNER PROGRAM.

If you are applying to the Shogun Partner Program on behalf of an entity or other organization, you are agreeing to this Agreement on behalf of that entity or organization, and you hereby represent and warrant to Shogun that you have the authority to bind such entity or other organization to the terms of this Agreement (and, in which case, the terms “you”, “your,” and “Customer” will refer to that entity or other organization).

IMPORTANT NOTES:

• SHOGUN DOES NOT PROVIDE WARRANTIES OR INDEMNITIES HEREUNDER FOR THE SHOGUN SERVICES, AND THESE TERMS LIMIT SHOGUN’S LIABILITY TO YOU.
• DISPUTES RELATING TO THIS AGREEMENT, YOUR PARTNER ACCOUNT, OR THE SHOGUN SERVICES WILL BE RESOLVED BY BINDING ARBITRATION.

1. MODIFICATION

Shogun may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. We will make commercially reasonable efforts to provide timely notice of any material changes to this Agreement by email notification or notification on our website. Such modifications may include, without limitation, changes in the scope of available referral fees, fee schedules, payment procedures, and program rules. If any modifications are unacceptable to you, you may immediately terminate this Agreement with Shogun upon the delivery of written notice to us within ten (10) days of the date of such notice as your sole recourse. If you continue participation in the Shogun Partner Program after such 10-day period, it will be considered as your acceptance of the modifications. Subject to the foregoing, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.

2. GENERAL

a. Referral Partner Appointment. Subject to your meeting all the requirements set forth in this Agreement including but not limited to those set forth in Section 2(b) below (Eligibility; Requirements), Shogun hereby appoints you to act as a referral partner for the Term (as defined in Section 15(a) (Term) below) on a nonexclusive basis, and to market and promote certain Shogun products and services (collectively, the “Shogun Services”)  to potential new Shogun end user customers (“Customers“) and to submit leads to Shogun for the purpose of obtaining sales of such Shogun Services from such Customers (collectively, the “Referral Activities”). 

b. Eligibility; Requirements. In order to be eligible for appointment as a referral partner under Section 2(a) (Referral Partner Appointment), you must (i) not be a competitor of Shogun or any of its affiliates, and (ii) except with Shogun’s prior written consent in its sole discretion, you must not be party to a marketing, consulting, or other agreement with Shogun. As a Partner under this Agreement, you hereby represent, warrant, and covenant that you will meet the following requirements: (a) use commercially reasonable efforts to promote and market the Shogun Service in accordance with the terms of this Agreements; (b) conduct business in a competent and professional manner that reflects favorably at all times on Shogun, the Shogun Services, the goodwill and reputation of Shogun, and on Shogun generally; (c) avoid deceptive, misleading, and unethical practices; (d) not make any false, misleading, or unauthorized representations, warranties, or guarantees with respect to Shogun or the Shogun Services; (e) comply with all applicable laws (foreign and domestic) and obtain all necessary registrations and approvals required for the performance of your  obligations hereunder; and (f) remain current with all Partner Certification requirements as stated in Section 6(a) (Partner Certification) below. 

c. Authority. Partner has no authority to distribute or resell the Shogun services or to make any commitments or agreements, or incur any liabilities whatsoever, on behalf of Shogun. Except to the extent expressly set forth in the Shogun marketing materials, service descriptions, documentation, or other collateral provided to you by Shogun hereunder expressly for the purpose of performing the Referral Activities (collectively, “Shogun Materials”), Partner shall not make or provide any representations or warranties to any leads or any other third party with respect to Shogun or the Shogun Services. Partner shall be solely responsible for all representations and warranties it makes regarding Shogun or the Shogun Services that are unauthorized or inconsistent with the Shogun Materials. 

3. ENROLLMENT; PARTNER PORTAL ACCESS

a. Enrollment. To enroll in the Shogun Partner Program, you must submit a partner application form to Shogun, and such application must be approved by Shogun. Applicants will be notified of their acceptance status as soon as possible after their information is reviewed. All partner applications must have a valid business URL and e-mail address. Shogun reserves the right to accept or reject any partner applications in its sole discretion. Upon acceptance, subject to the terms of this Agreement, you will be eligible to earn commissions for referrals of customers that purchase plans for use of Shogun Page Builder (“Page Builder”) as set forth below.

b. Partner Portal. Subject to the terms of this Agreement, Shogun hereby grants Partner a non-exclusive license during the term of this Agreement to display a link specifically assigned to Affiliate (whether in the form of text, or a logo or other graphic) provided to Partner by Shogun (the “Partner Link”), which will link to your Partner URL (as defined below), in a manner consistent with Shogun’s trademark policies promulgated from time to time.  If Shogun objects to the manner in which Partner displays the Link or any other content relating to Shogun or its software or services, Partner will remedy the issue in the manner requested by Shogun as soon as reasonably practicable.  All use of Shogun’s name or its other trademarks will inure to the sole benefit of Shogun.  Partner agrees to comply with any referral or opportunity registration process that Shogun may promulgate from time to time.

4. REFERRAL PROCESS

Only leads that come to Shogun via the Partner  Link provided to the Partner will be accepted and be eligible for commission payment.

For Partner to be eligible for commission payment, Partner must remain in compliance with the terms of this Agreement at all times, and the Registered Lead must, within one-hundred twenty  (120) days of the lead being accepted by Shogun, enter into the applicable Shogun customer agreement (“Shogun Customer Agreement”), timely pay all amounts due for a Page Builder plan as set forth below, and otherwise meet the criteria set forth in Section 5 (Commissions) (upon meeting the foregoing requirements, a Registered Lead is  deemed a “Referred Customer”). 

5. COMMISSIONS

a. Calculation. Partner will be eligible to receive a referral commission (“Commission”) based on the fees for the Page Builder plan (“Fees”) received by Shogun from a Referred Customer as set forth below:

• Page Builder. For Page Builder referrals, if, within the initial one-hundred eighty day (180) period after a Registered Lead installs Shogun’s Page Builder product, the Shogun Partner team confirms that a Registered Lead has entered into a Shogun Customer Agreement for a Shogun Page Builder plan (“Page Builder Self-Service”), Partner will receive a Commission equal to twenty percent (20%) of Net Revenue received by Shogun from such Referred Customer for the first year of such Referred Customer’s Page Builder Self-Service Customer Agreement.  

The foregoing Commission terms may change from time to time as noted in Section 1 (Modifications) above, and may be subject to temporary or limited-time special promotions, challenges, or bonuses.  

b. Net Revenue. The term “Net Revenue” means Fees actually received by Shogun from a Referred Customer for the Page Builder product as set forth in subsection 5(a) (Calculation) above less all discounts, commissions, taxes, refunds, and the like applied to such Referred Customer. Partner acknowledges and agrees that no other fees charged to or paid by a Referred Customer are commissionable hereunder, including, without limitation, any  implementation, processing, consulting, integration, or professional services fees, and shall not be included in the calculation of Net Revenue.

c. Non-Commissionable Referrals. Notwithstanding anything herein to the contrary stated in this Agreement or elsewhere, Partner is not entitled to, and will not receive, any Commission or any other consideration in connection with any one or more of the following circumstances:  

• Referrals made to Disqualified Leads (as defined below) 
• Referrals made by ineligible referrers, including but not limited to ineligibility under Section 2(b) (Eligibility; Requirements) above;
• Referrals made to Partner or to any of its affiliates; or
• Referrals made in violation of this Agreement or if Partner is otherwise in violation of any term of this Agreement. 

“Disqualified Leads” include the following:

(i) leads that are existing customers of Shogun or of any of its affiliates; 

(ii) leads that Shogun or any of its affiliates were already involved in discussions with relating to the sale of any Shogun services within a period of four (4) months prior to the time of submission of the proposed lead; 

(iii) leads previously submitted to Shogun or any of its affiliates by Partner or by any third party; 

(iv) leads that (i) do not meet Shogun’s credit requirements, (ii) are on a list of restricted or prohibited parties issued by the government of the United States or any other applicable jurisdiction, or (iii) are located in a country or other jurisdiction that is subject to a United States trade or other embargo or restriction; and 

(v) leads that are located in an area where Shogun or any of its affiliates has an exclusive arrangement for the sale of the Shogun Services or where Shogun is otherwise prohibited by agreement or law from accepting such lead. 

6. PAYMENT TERMS.

Shogun may utilize third party payment processors or service providers (collectively, “Payment Processors”) in order to facilitate payments under the Shogun Partner Program. Partner is solely responsible for providing and maintaining with Shogun and Shogun’s Payment Processor(s) Partner’s current contact information and address for receipt of payments under this Agreement.  Shogun will have no liability for, and will not resend, payments returned due to incorrect payment addresses.  Payments due hereunder will be made within forty-five (45) days after the end of the calendar month in which the corresponding amounts are collected by Shogun.

7.CUSTOMER RELATIONSHIP

Customers who purchase Shogun Services through the Shogun Partner Program will be deemed to be customers of Shogun in connection with such purchases. Accordingly, all Shogun rules, policies, and operating procedures concerning the Shogun Services will apply to such Customers, in addition to the terms of the Shogun Customer Agreement entered into by such Referred Customers. Shogun may change its policies, pricing structure, Customer Agreements, and/or operating procedures at any time and at its sole discretion.

8. PERMITTED USAGE

Partner may use Shogun brand and marketing resources specifically provided by Shogun for use in connection the Referral Activities as follows:

• With Shogun’s prior written consent for each such usage on a case by case basis, Partner may use the graphical banners and design resources made specifically available by Shogun hereunder for such purpose in compliance with brand usage terms provided by Shogun from time to time. If a specific size banner ad is not available, Partner may contact the Shogun Partner Program manager at agencyteam@getshogun.com and request a new banner graphic be added to the available resources.

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9. PROHIBITED USAGE

Partner agrees to the following restrictive covenants, and any violation thereof is grounds for immediate termination of this Agreement by Shogun. Partner will not, directly or indirectly:

• use the term “Shogun” in any variation in its site URL (e.g., shogun.net, shogunscouponcodes.com, shogun.com, shopifyshogun.com, shogun.plugins.com, etc.);
• promote any discounts or coupons that were not provided by Shogun to  Partner expressly for use under this Agreement;
• host or promote “coupon stacking” sites where customers may combine coupons to receive additional discounts;
• use any advertising platform (e.g., Facebook ads, Google adwords, etc.) in connection with any of  Partner’s activities related to this Agreement or the Shogun Partner Program. Partner must use only word of mouth or its own media (e.g.,  Partner’s YouTube channel, website blogs, etc.) to generate referrals hereunder;
• in connection with its activities hereunder, (i) violate or infringe any common law or statutory rights of any person or other entity (including, without limitation, proprietary rights, copyright rights, trademark, service mark or patent rights, or any rights of privacy or publicity); (ii) violate any law, rule or regulation; (iii) use any material or information that is obscene, pornographic, libelous, defamatory, slanderous; or (iv) use any false or deceptive material, or otherwise engage in any consumer or other fraud.

10. SHOGUN ANTI-SPAM POLICY

Partner will not use spam e-mail or other forms of Internet abuse (including spamming forums, blogs, Twitter, Facebook and other social media outlets) to seek referrals. Spam includes, but is not limited to, the following:

• Electronic mail messages addressed to a recipient with whom the sender does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient through an opt in subscription;
• Messages posted to Usenet, forums, Twitter, Facebook and message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups, posted in excessive volume, or posted against forum/message board rules.
• Content posted on free blog websites for the sole purpose of keyword spamming, or comments posted to legitimate blogs that violate the comment policy of the blog owner.
• Solicitations posted to chat rooms, or to groups or individuals via Internet Relay Chat or “Instant Messaging” system;
• Certain off-line activities that are similar to spam, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.

Partner will perform its activities hereunder in compliance with all applicable laws (including the CAN-SPAM Act of 2003) and any other Federal Trade Commission laws or regulations, and  Partner will only send e-mails or messages regarding Shogun’s products and services to person(s) who have been previously contacted by Partner and have consented to receiving from Partner such communications.

Shogun may investigate any Partner conduct in connection with the Shogun Partner Program and/or this Agreement at its sole discretion and, may terminate this Agreement immediately upon any breach of the foregoing.  In addition,  Partner will indemnify and hold harmless Shogun against any liability arising from  Partner’s breach of any obligation, representation or warranty of  Partner under this Agreement.

11. PROPRIETARY RIGHTS; TRADEMARKS. 

Shogun, its affiliates, and licensors as applicable, own and will retain all right, title, and interest, including all related intellectual property rights, in and to the Shogun Services, Shogun Materials, Shogun  Confidential Information, Shogun and its affiliates’ respective names, logos, trademarks, trade names, service marks, and all related names, logos, product and service names, designs, and slogans (collectively, “Shogun Marks”) and all derivative works, improvements, or modifications to any of the foregoing, by whomsoever made.  No rights are granted to Partner or any third party hereunder other than as expressly set forth herein. Partner will not use any of Shogun’s Marks except in compliance with the terms of this Agreement and with Shogun’s prior written consent in each instance. Partner will not use, register or take other action with respect to any Shogun Marks or other identifier used anywhere in the world by Shogun, except to the extent authorized in writing by Shogun in advance. 

12. RELATIONSHIP OF PARTIES

The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, fiduciary, or employment relationship between the parties. Partner has no authority to make or accept any offers or representations on our behalf. Partner will not make any statement, whether on its sites or otherwise, that reasonably would contradict the foregoing.  Partner has no ability to assign its status as a Partner to any other entity. Partner is solely responsible for all of its employees and agents and its related labor costs, taxes, and expenses and is responsible for and will indemnify Shogun from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses, and liabilities of any type whatsoever that may arise on account of Partner’s activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties (or failing to disclose all limitations on warranties and liabilities set forth herein on behalf of Shogun) to its customers or breaching any term of this Agreement.

13. DISCLOSURE OF PARTNER RELATIONSHIP

It is the sole responsibility of the Partner to disclose the nature of its referral  relationship with Shogun to any leads or customers, and Partner shall indemnify and hold harmless Shogun against any liability arising from Partner’s lack of disclosure to an actual or potential customer.

14. TERM AND TERMINATION

a. Term. This Agreement begins on the Effective Date and will remain in full force and effect for one (1) year after the Effective Date, unless terminated earlier pursuant to this Section 15 (“Term”).  After the initial one (1) year period, this Agreement will automatically renew for additional one (1) year periods, unless either Party gives the other Party written notice to not renew at least thirty (30) days prior to the end of the then-current term.  

b. Termination. Either Party may terminate this Agreement as follows: (a) upon thirty (30) days written notice for any or no reason; (b) if the other party breaches any material provision of this Agreement and does not cure such breach within ten (10) days’ of receipt of written notice thereof from the other party; (b) effective immediately and without notice if the other party ceases to do business or otherwise terminates its operations; or (c) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings, if such proceeding is instituted against that Party (and not dismissed with sixty (60) days thereafter). In addition to the foregoing, Shogun may terminate this Agreement immediately on any breach of Section 2(b) (Eligibility; Requirements), Section 10 (Prohibited Usage), or Section 11 (Shogun Anti-Spam Policy).

c. Effect of Termination. Upon early termination or expiration of this Agreement, Partner’s rights under this Agreement shall terminate immediately, and Partner will immediately cease all use of, and remove from all of Partner’s sites and materials all Shogun names, trademarks, and logos, and all other Shogun marks and materials provided in connection with this Agreement. Termination results in the immediate closure of the Partner’s account and, if Partner breaches any term or condition of this Agreement, the loss of all rights regarding referrals and the forfeiture of any unpaid commissions. Partner  will not be entitled to receive any Commissions or any other payments under this Agreement, other than Commissions earned or accrued prior to such termination or expiration.  The following sections of this Agreement will survive the expiration or termination of this Agreement for any reason: Sections 1 (Modification); 2(c) (Authority); 7 (Payment Terms); 8 (Customer Relationship); 10 (Prohibited Usage); 12 (Proprietary Rights; Trademarks); 13 (Relationship of the Parties); 14 (Disclosure of Partner Relationship); 15(c) (Effect of Termination);  16 (Confidential Information), 17 (Limitation of Liability); 18 (Disclaimer), 19 (Governing Law and Venue; Arbitration), and 20 (Miscellaneous).

15. CONFIDENTIAL INFORMATION

Partner acknowledges  and agrees that, in connection with this Agreement and/or the Shogun Partner Program, it may obtain confidential business, technical or financial information relating to Shogun, its affiliates, and/or customers (collectively, “Confidential Information”).  Partner and its employees and agents shall, at all times, both during the term of this Agreement and after its termination, keep in trust and confidence all such Confidential Information using no less than a reasonable standard of care, and shall not use such Confidential Information other than in the course of its duties as expressly provided in this Agreement; nor shall Partner or its employees or agents disclose any such Confidential Information to any person without Shogun’s prior written consent.  Partner  shall not be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of Partner, or is lawfully received by Partner from a third party without restriction and without breach of any duty of nondisclosure by any such third party.

16. LIMITATION OF LIABILITY

NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, EXPENDITURES OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SHOGUN PARTNER PROGRAM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SHOGUN’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE SHOGUN PARTNER PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO PARTNER UNDER TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE.

17. DISCLAIMER

SHOGUN HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SHOGUN SITE AND PRODUCTS, ANY LINKS, THE SHOGUN PARTNER PROGRAM OR AN PARTNER’S POTENTIAL TO EARN INCOME FROM THE SHOGUN PARTNER PROGRAM, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND/OR WARRANTIES ARISING FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.  IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE WEBSITES OR THE LINKS WILL BE UNINTERRUPTED OR ERROR-FREE, AND SHOGUN WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

SHOGUN WILL MAKE REASONABLE EFFORTS TO TRACK AND PAY COMMISSIONS TO PARTNER. HOWEVER, SHOGUN IS NOT RESPONSIBLE FOR TECHNICAL PROBLEMS, ACTS BY THIRD PARTIES, OR OTHER INACCURACIES OR EVENTS OUTSIDE SHOGUN’S REASONABLE CONTROL.

18. GOVERNING LAW AND VENUE; ARBITRATION

This Agreement and any disputes arising hereunder will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each Party hereby consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The Parties agree that, except as expressly stated herein, any and all disputes arising out of or in any way relating to this Agreement, including its existence, validity or termination, will be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS will appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California. The arbitration will be conducted in English. The arbitrator will provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, the Parties agree that damages may be an inadequate remedy in the case of any actual or threatened breach of certain terms of this Agreement (including unauthorized disclosure of Confidential Information, infringement of a Party’s Intellectual Property Rights, and enforcement of an arbitration award hereunder), and that either Party will be entitled to seek equitable relief (without the requirement of posting a bond or other security) in any court of competent jurisdiction as specified above in this Section 19 in addition to any other remedies such Party may have under this Agreement.

19. MISCELLANEOUS

Partner may not assign this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its obligations hereunder, without Shogun’s prior written consent. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. Shogun may give general notices related to the Shogun Partner Program that are applicable to all partners by email, text, in-portal notifications, or by posting them on the Shogun website or through the Shogun Services, and such electronic notices will be deemed to satisfy any legal requirement that such notices be made in writing. All other notices and consents under this Agreement will be in writing and sent by email, if to partner, to the email address associated with Partner’s account, or if to Shogun, to legal@getshogun.com . No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the party claimed to have waived. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.