vCita Terms for Business Partners
These vCita Terms for Business Partners (these “Terms”) govern the legal relationship between vCita, Inc., a Delaware corporation (“vCita”) and the person or entity that subscribed as a vCita business partner pursuant to the vCita online subscription form at www.vcita.com or any successor website (“Partner”, and the “vCita Website”, respectively). These Terms, together with the online subscription form filled out and accepted by Partner, constitute the legally binding contract between vCita and Partner concerning the subject matter herein (the “Contract”).
To the extent that the provisions of Regulation (EU) 2016/679 (“GDPR”) apply to the processing of personal data under these Website Terms And Conditions, the vCita’s Data Processing Addendum serves as an integral part of these Website Terms And Conditions.
To the extent that vCita acts as a Business Associate, as defined by HIPAA, to Partner under this Contract, the vCita Business Associate Agreement forms an integral part of this Contract. vCita’s HIPAA-compliant services are available only in connection with a Business or Platinum account. If Partner does not have a Business or Platinum account, Partner and its customers are expressed prohibited from using the Services (as defined below) in any manner that involves the maintenance , creation, transmission, receipt, use or processing of Protected Health Information, as defined by HIPAA. vCita will not be responsible in any manner to comply with HIPAA in connection with Essentials accounts. If Partner has a Business or Platinum account and is a HIPAA covered entity or business associate, Partner must access and download the vCita Business Associate Agreement by clicking the HIPAA Business Associate button on Partner’s account page. This is the only way that vCita will know that Partner is subject to HIPAA and that the Business Associate Agreement applies to Partner’s account. If Partner does not access and download the vCita Business Associate Agreement, vCita will be unable to comply fully with its HIPAA Business Associate obligations to Partner.
The purpose of the relationship between vCita and Partner is for Partner to refer potential customers to vCita for acquisition of vCita’s cloud-based web engagement service described at the vCita Website (the “Service”) and/or for Partner to directly resell the Service to potential customers. In these Terms, reference to customers is only to customers who acquire the Service for their own use and not for further resale, lease or other form of commercialization. vCita shall provide the Service to customers through vCita’s owned or licensed servers and hosting systems and Partner shall not be required to provide its own servers or hosting solution for such purpose.
PARTNER ACCOUNT AND DASHBOARD
As part of the subscription to a vCita’s partnership program, Partner is required to provide certain information in order to open a partner account. Partner confirms and undertakes that all information provided by Partner as part of such subscription, as well as any future information provided by Partner to vCita, will be true and accurate. vCita may, from time to time, institute rules and procedures with respect opening and maintaining a partner account with vCita, which rules and procedures shall be deemed as incorporated by reference into these Terms, and Partner shall be bound by such rules and procedures and comply with them. vCita shall provide Partner with access to a web-based dashboard (the “Partner Dashboard”), from which Partner will be able to manage its account activities in referring potential customers to vCita and/or reselling to such potential customers.
REGISTERING POTENTIAL CUSTOMERS
In order for Partner to be entitled to resell or refer to any potential customer and to receive any consideration in respect of an acquisition of Service resulting from such referral or resale, such potential customer must first be registered with Partner’s account on the Partner Dashboard. A potential customer whose registration has been accepted by vCita is referred to herein as a “Registered Customer”. A Registered Customer of a Partner who actually acquires the vCita paid Service (directly or through Partner) during the term of the Contract with Partner is referred to herein as an “Active Customer”, for as long as it continues to pay (or Partner continues to pay in respect of such customer) for the Service. The rules and procedures for registering a potential customer and for a Registered Customer to maintain its status as such are determined by vCita and set forth in the Partner Dashboard and/or on the vCita’s website, as such rules and procedures may be changed by vCita from time to time at its discretion.
TYPES OF PARTNERSHIP PROGRAMS
Partner shall be entitled to choose one of the following three vCita partnership programs:
- Referral Program (Also known as “Reseller”). In this program, Partner is provided by vCita with manners (such as tractable links and APIs) by which it can refer potential customers to vCita in order to acquire the Service from vCita. The potential customer purchases the Service directly from vCita and pays vCita directly for the Service.
- Regular Resale Program (Also known as “Solution Provider”). In this program, Partner may resell the Service directly to its Registered Customers through the Partner Dashboard, and charge such Registered Customers a fee for the Service. Alternatively, Partner may choose to have vCita sell directly the Service and charge the Registered Customer the applicable vCita fee for the Service. In respect of each Registered Customer, the acquisition of the Service may be in respect of one or more unique users and Partner (or the Active Customer, in case of direct relationship with vCita) may, from time to time, add users to an Active Customer’s account (subject to payment of the applicable additional subscription fees). With respect to each of its Active Customers, Partner will be provided with a unique user name and password for delivery to such Active Customer, which shall enable such Active Customer to access a web-based customer dashboard (the “Customer Dashboard”) and use the Service for as long as the applicable fees with respect to Partner and such Active Customer are duly paid to vCita.
- Branded Resale Program (Also known as “White Label”). This program is identical to the Regular Resale Program, except that Partner is entitled to have the Customer Dashboard branded in Partner’s brand (i.e., look and feel, colors and logo). Partner shall be entitled to have the Customer Dashboard accessed through a non-vCita url provided by Partner (subject to such url being reasonably acceptable to vCita). Partner shall be responsible to provide to vCita with any branding for use in respect of Partner and represents and warrants that any such branding shall be on compliance with any third party rights and applicable law.
VCITA’S TERMS OF SERVICE FOR ACTIVE CUSTOMERS
vCita’s Service shall be provided to customers in accordance with and subject to the vCita’s Terms of Service, as may amended by vCita from time to time, as presented in the vCita Website or otherwise provided to Partner (the “Terms of Service”) and to which any Active Customer will be required to agree in order to be provided with the Service. Partner shall be responsible to have its Active Customers agree to such Terms of Service (on a stand-alone basis, or as incorporated into Partner’s general terms of service) as a condition for Client’s use of the Service and shall be liable to vCita for failure to do so in case of any liability, loss, expense or damage that could have been avoided or mitigated but for such failure.
In the resale programs, Partner shall be responsible for providing support services to its Active Customers with respect to the Service and vCita shall provide to Partner with email and phone support services in respect of the Service, during regular working days and hours, as shall be generally available by vCita from time to time.
PARTNER’S OBLIGATIONS AND RESTRICTIONS
Partner shall only be entitled to market and resell the Service to customers such customers’ own use and not for further resale, lease or other form of commercialization. In marketing and reselling the Service, Partner shall maintain best commercial standards of quality, in accordance with industry standards, and shall work diligently and use Partner’s best efforts to continually promote and protect the integrity of the Service. Partner will not be engaged in or allow any marketing, promotion or other activities targeting or involving persons under 18 years of age (or such other age of legal capacity according to applicable jurisdiction) or that are otherwise illegal in any applicable jurisdiction (including, without limitation, with regard to money laundering laws) or that involve fraud, spamming, false, misleading or unauthorized advertising or representations, use of stolen credit cards, and unauthorized use of any intellectual property rights or other third party rights. Partner shall not market or promote the Service in association with any web sites or content that include: graphically violent content, racial intolerance, or advocacy against any individual, group, or organization; pornography, adult, or mature content; hacking/cracking content; illicit drugs and drug paraphernalia; excessive profanity; gambling or casino-related content; content regarding programs which compensate users for clicking on ads or offers, performing searches, surfing websites, or reading emails; excessive, repetitive, or irrelevant keywords in the content or code of web pages; sales or promotion of weapons or ammunition (e.g., firearms, fighting knives, stun guns); sales or promotion of beer or hard alcohol; sales or promotion of tobacco or tobacco-related products; sales or promotion of prescription drugs; sales or promotion of products that are replicas or imitations of designer goods; any other content that is illegal, promotes illegal activity, or infringes on the legal rights of others.
In marketing and reselling the Service, Partner shall comply with all applicable laws, including without limitation export restriction laws and regulations (including without limitation, US export laws and regulations). In marketing and reselling the Service, Partner shall comply with all policies institutes by vCita from time to time, as notified to Partner. All costs and expenses of Partner in connection with its marketing and resale of the Service or otherwise shall be borne solely by Partner, and vCita shall under no circumstances participate in such costs and expenses.
Enrollment to a partnership program may require the payment by Partner to vCita of a periodical fee, as shall be specified from time to time at the vCita Website (also known as “Partnership fee”). Payment of such periodical fee (if any) shall be a pre-condition for Partner’s enrollment and entitlement under a program. Subject to compliance with these Terms, for each of the partnership programs Partner shall be entitled to consideration in respect of such Partner’s Registered Customers that become Active Customers, as follows:
- Referral Program. vCita shall pay Partner an amount of 20% of the subscription fees (excluding, for the avoidance of doubt, any taxes added to such fees) actually received by vCita from such Active Customer with respect to its first 12 months of paid subscription and Partner shall not be entitled to any consideration with respect to any period of subscription beyond such first 12-month period.
- Regular Resale and Branded Resale Program. vCita shall be entitled to receive an amount of 50% of its standard customer subscription fees that are applicable to the Service subscribed for by the Active Customer (the “vCita Fees”). In the event that Partner charges the Active Customer directly for the Service then Partner shall be responsible to pay vCita such fees as a condition to the provision of the Service (and the balance of any fee that Partner charges the Active Customer shall be retained by Partner). In the event that vCita charges the Active Customer (relevant only for the Regular Resale Program) then vCita shall keep the vCita Fees and pay to Partner the balance of the fees. Subscription fees in respect of Active Customers are payable to vCita on either a monthly or an annual basis, as agreed on as part of the subscription process of each Active Customer. Monthly subscription fees shall be paid to vCita on the first day of each calendar month with respect to all Active Customers who have subscribed for a monthly subscription (except that the first payment for subscriptions beginning mid-month will be made upon subscription for a pro-rated fee until the next billing cycle). Annual subscription fees shall be paid to vCita upon the initial subscription of the applicable Active Customer and each renewal thereof.
Payment by vCita to Partner shall be made only if and when the aggregate fee due to Partner in respect of Active Customers exceeds $20 and thereafter payment shall be made within 30 days from the end of each calendar month, with respect to subscription fees received by vCita from the Active Customers of such Partner during such calendar month. Payments by vCita shall be made in US$ or, if vCita so chooses, in the currency paid to it by the applicable Active Customer. Payments shall be calculated on the basis of vCita’s records, which shall be deemed conclusively accurate.
vCita may change its standard customer subscription fees from time to time by prior notice to Partner (which may be provided by email, notice in the Partner Dashboard or otherwise, at vCita’s discretion) of at least 30 days (provided that, with respect to an Active Customer under an annual subscription, such changed fees shall apply only as of the end of the then current annual subscription period). vCita may also change the percentage rates of the subscription fees specified above as payable by vCita to Partner by the same prior notice stated above, provided that such change shall not apply with respect to then Active customers. Payment obligations towards vCita are non-cancelable and all amounts paid to vCita are non-refundable (including in case of expiration/termination of this Contract). Any fees payable from one party to the other are exclusive of all applicable taxes and the paying party shall be responsible to add such taxes to the paid fees (other in respect of taxes that are based on the receiving party’s net income). If any tax withholding is applicable with respect to any payment due to vCita, Partner shall gross up the payment so that such tax withholding obligation shall not affect the net amount received by vCita. vCita shall be entitled to withhold taxes as required by applicable law, out of any payment due from vCita to Partner. Any payment due from vCita to Partner shall be subject to the receipt from Partner of all applicable tax documentation and other information required to enable such payment, to the satisfaction of vCita.
The consideration to Partner stated above constitutes the full and final consideration due to Partner and Partner shall not be entitled to any additional consideration of any form for any of its actions in connection with vCita or the Service. Specifically, no consideration shall be due to Partner in respect of any introduction, alleged introduction or sale of the Service that is not done through the Partner Dashboard and in compliance with these Terms.
As between vCita and Partner, vCita shall exclusively own all right, title and interest, including all related intellectual property rights (in the broadest sense of the term) in and to the Service and any data obtained through the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Partner or any other party relating to the Service. The vCita name, logo, and the service names associated with the Service are trademarks of vCita, and no right or license is granted herein to use them.
DISCLAIMER OF WARRANTIES
The Service is provided by vCita on an “as is” and “as available” basis. all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement are disclaimed by vCita to the maximum extent permitted by applicable law. Without derogating from the aforesaid, vCita makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service. vCita does not represent or warrant that (a) the use of the online Service will be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, or that (b) the Service and its quality will meet Partner’s or any customer’s requirements or expectations. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. vCita shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMTTTED UNDER APPLICABLE LAW, IN NO EVENT WILL VCITA BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE OR IF VCITA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL VCITA BE LIABLE TO PARTNER (UNDER ANY THEORY OF LAW) FOR AMOUNTS WHICH EXCEED THE LOWER OF: (I) WITH RESPECT TO ANY CLAIM BY PARTNER, THE AMOUNTS ACTUALLY RECEIVED BY VCITA FROM PARTNER OR THE FEES PAYABLE BY VCITA TO PARTNER DURING THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (II) WITH RESPECT TO ALL CLAIMS BY PARTNER IN THE AGGREGATE, THE AGGREGATE AMOUNT ACTUALLY RECEIVED BY VCITA FROM PARTNER OR THE FEES PAYABLE BY VCITA TO PARTNER UNDER THESE TERMS.
No claim by Partner may be made after one year from date of arising of the applicable cause of action of such claim.
Partner shall indemnify and hold vCita and its successors and assigns harmless, upon their first demand, against any damage, loss, expense or cost incurred by them as a result of or in connection with any breach by Partner of these Terms.
TERMINATION/SUSPENSION OF A CUSTOMER/USER ACCOUNT
vCita is entitled to suspend or terminate a Customer or user account in the event of any breach by such Customer or any of its users of the Terms of Service, without any refund of fees.
TERM AND TERMINATION OF THE CONTRACT BETWEEN VCITA AND PARTNER
- The Contract shall be for such initial term of 12 months as of the original date of subscription by Partner and upon the end of such term it shall automatically renew for successive 12-month periods, unless either vCita or Partner notifies the other party that it does not wish to renew the Contract at least 30 days prior to the end of the initial term or any applicable renewal term and unless it is terminated in accordance with the following provisions.
- vCita may terminate this Contract for convenience at any time, by providing Partner a prior notice of at least three (3) months. In case of a breach by Partner of this Contract, vCita shall be entitled to terminate the Contract immediately by notice to Partner (provided that if the breach by Partner is curable, Partner shall be provided with at least 7 days to cure the breach before such termination).
- Upon expiration or termination of this Contract, the following shall apply:
- Except as expressly provided below, Partner shall no longer be entitled to resell the Service or use any manners to refer customers to vCita. All Registered Customers of Partner who are not Active Customers on the date of expiration/termination of the Contract shall cease being considered as Registered Customers of Partner.
- In the event of expiration of the Contract due to vCita’s election not to renew it or due to termination by vCita for convenience (a “vCita Expiration/Termination”), vCita shall have only the following obligations towards Partner following such expiration/termination:
- vCita shall be obligated towards Partners in the Regular Resale Program and the Branded Resale Program to continue providing the Service to Active Customers under annual subscriptions who such Partners charge directly until the end of the then current annual subscription period and these Terms shall continue to apply only in respect of such Active Customers during such period. With respect to Active Customers under monthly subscriptions, vCita shall be entitled, but not obligated, to continue providing the Service.
- Partner in the Referral Program shall be entitled to continue receiving the fee in respect any of its Registered Customers who is an Active Customer under such program as of expiration/termination date until the end of the first 12-month paid subscription of such Active Customer;
- With respect to Partner in the Regular Resale Program, with respect to Registered Customers who are Active Customers under monthly subscription in such program as of expiration/termination and to which vCita elects to continue providing the Service, these Terms shall continue to apply until the end of the later of: (i) six month from the date of such expiration/termination, and (ii) the end of the first 12-month period of the Contract with such Partner.
- With respect to Partner in the Branded Resale Program, vCita undertakes towards such Partner, not to actively approach directly or indirectly, for a period of six (6) months following the date of expiration/termination, customers of such Partner who are Active Customers as of the date of termination/expiration in order to solicit their purchase of the Service.
- vCita shall not have any obligations whatsoever (including no obligations to pay fees) towards Partner following termination or expiration of the Contract which is not a vCita Expiration/Termination.
- Expiration/termination of the Contract shall not affect provisions that by their nature survive such expiration or termination.
The Contract constitutes the entire agreement and understanding between vCita and Partner with respect to the subject matters herein. The Contract shall be governed by the laws of the State of Delaware, excluding its conflict of laws rules, and the courts in Delaware have exclusive jurisdiction over any matter arising in connection with the Contract. Neither this Contract nor any rights or obligations hereunder may be assigned or sub-contracted by Partner without the prior written consent of vCita and any assignment without such prior written consent will be void. vCita may freely assign its rights and obligations herein. Subject to any provisions herein with regard to assignment, all covenants and agreements herein shall bind and inure to the benefit of the respective heirs, executors, administrators, successors and assigns of the parties hereto. Partner is an independent contractor of vCita and no employer-employee relations shall exist between Partner and vCita. Nothing contained in the Contract shall be deemed to create a joint venture, partnership, employment, agency or similar arrangement between Partner and vCita. Partner does not possess any power or authority by reason of the Contract to bind vCita, or to assume or create any obligation or responsibility, expressed or implied, on behalf of vCita, and Partner shall not represent to anyone that it possesses such power or authority. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof. No modification, amendment, or waiver of any provision of the Contract will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of this Contract is held to be invalid, unenforceable or illegal for any reason, the validity or enforceability of any or all of the remaining portions shall not be effected.
Last Updated: June 20, 2019