1. 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”).
2. To the extent that the provisions of Regulation (EU) 2016/679 (“GDPR”) or the provisions of the California Consumer Privacy Act (“CCPA”) 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.
3. 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.
4. 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.
5. Each party represents and warrants to the other party on a continuing basis that it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement and its obligations under this Agreement are valid, binding and enforceable.
Partner account and dashboard
6. 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
7. 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.
Description of the partnership program
vcita’s terms of service for active customers
9. 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.
10. To maintain innovation in product, infrastructure and its competitive position in the market, vcita is entitled to change from time to time its offered packages of its features set, as presented on vcita Website. vcita will inform partner of such changes in writing, and in a timely manner, as soon as the confirmed change is known to vcita. vcita shall provide information to Partner related to such change which may include the following: expected date of change, the scope of the change, etc.
11. Partner shall be responsible for providing ongoing support services to its Active Customers with respect to the use of the Service and vcita shall provide to Partner with email and phone support services in respect of the use of the Service, during regular working days and hours, as shall be generally available by vcita from time to time. In addition vcita shall be responsible to provide commercially reasonable technical support to the Service (such as bug fixes) in accordance with vcita’s policy as may be in effect from time to time and its availability.
Partner’s obligations and restrictions
12. Partner shall only be entitled to market and resell the Service to customers for 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 instituted 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.
14. vcita shall be entitled to receive an amount of 70% of its standard customer subscription fees that are applicable to the Service subscribed for by the Active Customer (the “vcita Fees”) and Partner shall be entitled to receive an amount of 30% of such customer subscription fees (the “Partner Fees”). Out of any fees the Active Customer is charged for and actually received by vcita, vcita shall keep the vcita Fees and pay to Partner the balance of the fees (i.e. the Partner Fees). It is clarified that in the event that Partner charges the Active Customer directly for the Service, then Partner shall be responsible to pay vcita the entire subscription fees as a condition to the provision of the Service (without, for the avoidance of doubt, deducting from such amount the Partner Fees) and vcita shall thereafter remit to Partner the Partner Fees associated with such payment. Payment of the Partner Fees by vcita shall be made net of any clearing costs, expenses or commissions incurred in connection with the transfer of funds from one party to the other. 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.
15. 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.
16. 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 Partner Fees specified above as payable by vcita to Partner by the same prior notice stated above, provided that with respect to then Active Customers, such change in the rates shall only enter into effect upon the subsequent renewal of the term of these Terms . 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.
17. The Partner Fees constitute 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.
18. 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.
20. vcita shall have the right to use the data that Partner and/or its customers provide to vcita or include on the Service platform for the purposes of using the Service, subject to such data being used at an aggregated and anonymized level and for the purposes of vcita performing service improvements, marketing its services and reporting to stakeholders.
21. Each party represents and warrants to the other party on a continuing basis that the party is providing or using the Services that the party is not in any way infringing the intellectual property rights of any person.
Disclaimer of warranties
23. 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 guarantee 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
24. TO THE FULLEST EXTENT PERMITTED 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.
25. No claim by Partner may be made after one year from date of arising of the applicable cause of action of such claim.
26. 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
27. vcita is entitled to suspend or terminate an Active/Registered 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
29. 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).
30. Upon expiration or termination of this Contract, the following shall apply:
a. 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.
- 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. c. Expiration/termination of the Contract shall not affect provisions that by their nature survive such expiration or termination.
b. 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: