Moda Partner Program Agreement
Updated: January 1, 2023
This agreement outlines the terms and conditions of participating in Moda Inc's Partner Program. The agreement takes effect when the Partner is accepted into the program and is a legally binding agreement between Moda and the Partner. The terms "Moda" and "Partner" refer to the respective parties involved in the agreement.
Before participating in the Partner Program, it is necessary for the Partner to read, understand and agree to all the terms and conditions outlined in this Agreement, including the privacy policy. The data processing agreement is also part of this Agreement and is incorporated into it for reference.
By clicking the "Submit" button during the Partner application process, completing the registration process to become a Moda Partner, or participating in the Partner Program, the Partner represents that they have read, understood and agreed to be bound by the terms of this Agreement. The Partner also represents that they have the authority to enter into this Agreement on behalf of the entity they represent and to bind that entity to this Agreement. If the Partner does not accept or understand the Agreement, they are not allowed to register for or participate in the Moda Partner Program.
1. DEFINITIONS
1.1 An "Active Partner" is a Partner who is in good standing with Moda and has fulfilled all the necessary requirements of the Partner Program.
1.2 "Confidential Information" refers to all data and information that is considered confidential and disclosed by one Party to the other Party under this Agreement. This includes information that the disclosing Party regards as confidential and information that the receiving Party should reasonably know to be confidential. This can include business practices, software, technical information, product/service plans, programming/design techniques or plans, trade secrets, prospects, customers, end users, suppliers, development plans, and services. The Confidential Information may be communicated in various forms, including orally, in writing, or in any recorded or tangible form.
1.3 An "Eligible Referral" is a potential customer (Sales Lead) that is not currently a customer of Moda or has not had prior discussions about the purchase of Moda products, has not been submitted to Moda by Partner or any other party before, is accepted by Moda when Partner submits a Sales Lead Registration Application and enters into an agreement with Moda to purchase the products within 90 days of Moda receiving the Sales Lead Registration Application from Partner.
1.4 "Intellectual Property Rights" refers to all rights and interests in intellectual property, including: patents, patent applications, and inventions, trademarks, service marks, and other branding elements, copyrights for works of authorship and trade secrets, technology, software, and confidential information.
1.5 "Moda Materials" refers to any marketing or promotional materials related to Moda products that are provided to Partner by Moda for use in accordance with this agreement.
1.6 "Moda Products" refers to Moda's proprietary software platform and related services for customer engagement and management, as described on the Moda website (www.getmoda.io).
1.7 "Partner Portal" refers to the online application where Partner can: access and obtain Moda Materials and marketing resources for Moda Products, register Sales Leads by submitting Sales Lead Registration Applications, review their Tier status in the Partner Program and receive technical details and support related to the Moda Products and participation in the Partner Program.
1.8 "Partner Program" refers to Moda's program for partners, as outlined in this agreement.
1.9 "Partner" refers to an individual or entity that has agreed to the terms of this agreement and is participating in Moda's Partner Program. The Partner Program has different tracks for partners.
a. "Influencer Partner" refers to an Active Partner who: has been accepted into the Moda Partner Program, and has been provided with a unique referral link to provide Referral Services (as defined below) to customers.
b. "Agency Partner" refers to an Active Partner who: has been accepted into the Moda Partner Program, is an agency and provides Agency Track Services.
c. "Strategic Partner" refers to an Active Partner who: has been accepted into the Moda Partner Program as a Startup accelerator, Venture Capital firm, Ecommerce aggregator, Technology service provider and provides services including but not limited to Referral Services, Marketing Services, and customer support.
1.10 "Referral Services" refers to the marketing and promotion of Moda Products and referring leads for the sale of these products, as described in detail in this agreement.
1.11 A "Sales Lead" refers to a potential customer for the Moda products that is identified by a Partner and submitted through the Partner Portal using a Sales Lead Registration Application.
1.12 "Services" refers to the group of services offered, including the Referral Services, Agency Track Services, and Strategic Track Services.
2. PARTNER PROGRAM ACCEPTANCE
2.1 Acceptance. To become a Partner, one must submit a Partner Program application. Moda will review the application and notify the applicant of their acceptance status through email.
2.2 Account. Upon acceptance into the Partner Program, you are required to create an Account through the Partner Portal and meet the Enrollment Criteria outlined in Section
5.2(a). The Account must be registered with accurate and current information, including a specific email address (not a generic email). You are responsible for all activities under your Account and must keep your password confidential. If any unauthorized use of your password or other security breach occurs, you must notify Moda immediately. At the end of each session, you must log out of your Account. Providing false information or creating an Account under a false identity will result in suspension or termination of the Account and rejection from the Partner Program.
3. DESCRIPTION OF SERVICES
3.1 Partner Program Tracks. The Partner Program has three tracks: Influencer Track, Agency Track, and Strategic Track. Moda will notify the Partner of their designated track upon acceptance into the program. All tracks include the Referral Services, and some may include additional marketing and related services.
a. Influencer Track. If the Partner is designated as an Influencer Partner, they are required to provide the Referral Services in accordance with the agreement.
b. Agency Track. If the Partner is designated as an Agency Partner, they are required to provide the Referral Services and additional Marketing Services related to the Moda Products. The Marketing Services may include search engine optimization, social media advertisement management, web development, brand development, content creation, and other related services. These services, together with the Referral Services, are referred to as the Agency Track Services.
c. Strategic Track. The Strategic Partner is responsible for providing the Referral Services, Marketing Services, and customer support and maintenance services for Moda Products for Moda customers. This includes creating and executing marketing campaigns and customer services as described in the Partner Portal. The Strategic Partner is responsible for all aspects of the customer services and Moda is not obligated to provide any customer services or be liable for any agreements the partner may have with Moda customers regarding customer services.
3.2 Tiers. Moda offers benefits to its partners based on their participation level in the Partner Program Track and meeting certain qualifying criteria. These benefits are described in the Partner Program Guide and Partner Portal, and the levels of participation are referred to as "Tiers". Moda has the discretion to change the benefits and qualifying criteria, and Partner's Tier will be reviewed twice a year and may be adjusted based on the Partner Program requirements.
3.3 Training. Moda will make a good faith effort to provide sales training to Partner for the promotion of Moda products, and for Strategic Partners, training for the management and support of Moda customers. Moda may also require mandatory training and certification before starting services or payment of fees. The company may offer additional training at different Tiers as described in the Partner Program Guide and Partner Portal, and has the discretion to change the training provided.
3.4 Quarterly Meetings. At the request of Moda, the Partner agrees to meet at least once every quarter, either in person or through a teleconference, to discuss the status of their relationship.
3.5 Subcontracting. This clause prohibits the partner from delegating any of their responsibilities outlined in the agreement to a third party. The partner is solely responsible for fulfilling all obligations outlined in the agreement.
3.6 Competing Products and Business Practices. This clause requires the partner to promptly inform Moda if they are promoting, marketing, or distributing any product or service similar to Moda's product. However, this does not limit the partner's ability to do so. The partner must conduct their business in a manner that reflects positively on Moda, not engage in illegal or unethical practices, and not violate the Foreign Corrupt Practices Act of 1977 or any other anti-bribery or anti-corruption laws by making payments or contributions to a third party.
4. REFERRAL SERVICES
4.1 Appointment. This clause appoints the Partner as Moda's non-exclusive referral partner. The Partner accepts the appointment and will provide referral services for Moda.
4.2 Scope of Authority. This clause defines the Partner's authority with regards to the referral services. The Partner's sole authority is to market and promote Moda Products and provide sales leads to Moda. The agreement states that Moda will directly enter into agreements with the customers for the provision of Moda Products. The Partner does not have the authority to enter into agreements on behalf of Moda.
4.3 Restrictions. This clause outlines the restrictions on the Partner's activities related to the Moda Products. The Partner is not allowed to:
- Sell, resell, distribute, license or sublicense the Moda Products directly to any Sales Lead
- Make false, misleading or inconsistent statements about the Moda Products
- Make commitments, warranties, or guarantees to Sales Leads regarding the Moda Products
- Engage in marketing activities that violate Moda's Partner Search Engine Marketing Guidelines
- Distribute any unsolicited bulk emails (spam) mentioning or referring to Moda or the Moda Products.The Partner does not have the authority to negotiate any contract for or on behalf of Moda, or bind Moda to any contract, representation, or understanding concerning Moda or the Moda Products.
4.4 Lead Process.
a. Identification of Sales Leads; Marketing and Promotion. This clause requires the Partner to use commercially reasonable efforts to identify sales leads and market and promote Moda Products to these leads. The Partner may provide the sales leads with Moda Materials as supplied by Moda. The Partner is expected to make a good faith effort to identify potential customers and promote the Moda Products to them.
b. Sales Lead Registration. This clause outlines the process for registering a prospective Sales Lead. The Partner must register the lead in the Partner Portal, and Moda will review the registration and determine if it qualifies as an Eligible Referral. If the lead is not eligible, the Partner must cease all Referral Services with respect to it. If the lead is eligible, the Partner must assist Moda in making contact with the lead by arranging an introduction or other means of communication. The Partner is expected to provide reasonable detail about the lead to Moda and help in the process of connecting with the lead.
5. FEES; PAYMENT
5.1 Types of Fees; Payment.
a. Referral Fees. Moda will pay Partner referral fees based on the percentage of the Eligible Referral's monthly subscription to the Moda Products for a certain calculation period. The referral fees will depend on Partner's Program Track and Tier as of the Sales Lead Submission Date, and will be described in Moda's Partner Program Guide. The referral fees will be paid within 30 days after the end of each calendar month, accompanied by a report that shows the calculation of the fees. Partner is responsible for remitting all taxes related to the referral fees. Disputes related to referral fees must be submitted in writing to Moda within 30 days of the release of payment and must provide reasonable details for review.
b. Moda has the right to change the percentages and fees that it pays to the partner at any time, and it will give the partner notice of any changes through email or the Partner Portal. The current percentages and fees can be found in the Partner Program Guide and are indicated to the partner through their account in the Partner Portal. The payment process details are described in the Partner Portal. Any disputes related to the fees must be submitted to Moda in writing within 30 days of the payment being released, and the dispute must include reasonable details for review.
5.2 Requirements for Payment; Forfeiture.
a. In order to be eligible for the Fees under this Agreement, Partner must fulfill the Enrollment Criteria, which includes: (1) agreeing to the terms of the Agreement, (2) completing the account information form in the Partner Portal, (3) submitting the necessary tax documents (Form W-9 for U.S.-based Partners and Form W-8BEN or W-8BEN-E for non-U.S. based Partners), and (4) returning the forms required by items (2) and (3) to legal@lifesight.io
b. In other words, if Partner does not complete all the Enrollment Criteria within 6 months of the due date of any applicable Fees, its right to receive those Fees will be permanently lost (Forfeited Transaction). Moda will not have to pay Partner any Fees related to a Forfeited Transaction. Once Partner meets all the Enrollment Criteria, it will be eligible to receive Fees for any Eligible Referrals, excluding any Forfeited Transactions.
c. This means that if Partner receives a referral fee based on a condition that the referred customer (Eligible Referral) continues to be a Moda customer for a certain period of time, and the customer cancels its subscription before that time period is over, then Partner will not be eligible to receive the referral fee.
6. LICENSES AND OWNERSHIP
6.1 Moda Marks. Moda grants Partner a non-exclusive and revocable license to use the Moda trademarks, service marks, and logos (Moda Marks) for the purpose of this agreement. Partner's use of Moda Marks is subject to Moda's then-current trademark use guidelines, and samples of materials using the Moda Marks must be provided to Moda for quality control purposes. Partner does not have the right to sublicense the use of Moda Marks. Partner acknowledges Moda's exclusive ownership of the Moda Marks and shall not take any actions that harm Moda's ownership. Partner also agrees not to adopt or use any trademarks or service marks that are similar to the Moda Marks.
6.2 Moda Materials. This section states that Moda may provide Partner with certain materials (referred to as "Moda Materials") for the purpose of fulfilling Partner's obligations under this agreement. Moda grants Partner a non-exclusive, revocable, non-transferable license to use and distribute these materials exactly as provided to Partner by Moda. Partner does not have the right to sublicense the use of these materials and must comply with all terms and conditions set forth in this agreement while using them.
6.3 Ownership. This section of the agreement states that Moda retains full ownership and rights to the Moda Marks, Products, Materials, and all Intellectual Property Rights related to them. The license granted to Partner is limited and there are no implied licenses beyond what is explicitly stated in the agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties. This clause says that each party (Moda and Partner) represents and warrants (or promises) to the other party that they have the necessary legal authority to enter into this agreement and fulfill their obligations under it. They also promise that entering into this agreement and fulfilling their obligations won't conflict with any other agreement they are already a party to, and that this agreement is legally binding and enforceable.
7.2 General Disclaimers. This passage says that both Moda and Partner acknowledge and agree that, in entering into this agreement, neither party is relying on any warranties, express or implied. Neither party has made any representations, assurances, or promises about the results of the agreement. Moda specifically states that it is not making any guarantees about the success of the Moda Products and that these products are provided "as-is" without any express or implied warranties regarding their error-free operation, merchantability, fitness for a particular purpose, or non-infringement.
7.3 Warranties to Third Parties. Partner is not allowed to make any representations or give any warranties about the Moda Products to any potential customers or any other third party, unless it is for the specific purpose of delivering the Moda Materials as outlined in Section 4.4 of the agreement. Any warranties or representations made by the Partner must not go beyond what is outlined in Section 4.4.
8. CONFIDENTIALITY
8.1 Confidentiality. This section requires both parties to maintain the confidentiality of any confidential information that is shared between them during the course of the agreement. The receiving party shall not use or disclose the confidential information to any third party without the express authorization of the disclosing party. The receiving party is responsible for ensuring that its representatives who have access to the confidential information are bound by confidentiality obligations that are at least as protective as the ones outlined in this agreement. The confidentiality obligations set forth in this section shall survive for a period of 5 years after the termination of the agreement. In the case of trade secret information, the receiving party must safeguard such information in perpetuity or for as long as it remains a trade secret under applicable law.
8.2 Exceptions. The obligations of confidentiality set forth in Section 8.1 shall not apply to information that can be proven by the receiving party to have been known to it prior to disclosure by the other party, available to the public, or disclosed by a third party with no obligation to keep it confidential. It also shall not apply to information independently developed by employees and contractors of the receiving party who had no access to the confidential information, as proven by clear and convincing evidence.
8.3 Authorised Disclosure. The Receiving Party may disclose confidential information if required by law or a governmental authority, but must use reasonable efforts to protect the information. The receiving party must also notify the other party, if legally possible, prior to disclosure to allow for the opportunity to contest the request.
9. INDEMNITIES
9.1 By Moda. Moda is responsible for compensating and protecting Partner from any liabilities, losses, damages, costs, and expenses (including legal fees) resulting from third-party claims of trademark infringement by the Moda Marks. Moda is responsible for covering these expenses unless the Partner has made modifications to the marks.
9.2 By Partner. Partner is responsible for compensating and protecting Moda from any liabilities, losses, damages, costs, and expenses (including legal fees) resulting from third-party claims related to Partner's performance of services or unauthorized representations made by Partner about Moda or the Moda Products. Partner must cover these expenses.
9.3 Indemnification Procedure. This section outlines the terms of the indemnification obligation between the parties. The indemnifying party is responsible for paying any third-party costs and damages incurred by the other party. The other party must notify the indemnifying party of the claim in writing, allow the indemnifying party to handle the defence, and provide information and assistance at the indemnifying party's reasonable request and expense. The indemnifying party must keep the other party informed and not settle the claim without their prior consent.
10. LIMITATION OF LIABILITY
10.1 This section limits the liability of each party in connection with the agreement. Neither party will be liable to the other for indirect, incidental, consequential or special damages arising out of the agreement, even if the other party has been advised of the possibility of such damages. The total liability of either party arising from any claim or cause under the agreement cannot exceed the total amount of payments made to the partner under the agreement. These limitations will apply regardless of the failure of any remedy. The only exceptions are for breaches of confidentiality and payments to third parties arising from either party's indemnification obligations under Section 9.
11 TERM; TERMINATION
11.1 Term. This section states the duration of the agreement. The agreement will be in effect for a term of one year from the effective date, unless terminated earlier as specified in the agreement. The agreement will automatically renew for additional one-year terms unless one party provides written notice to the other party of their intention to allow the agreement to expire at the end of the current term. The notice must be given no later than 30 days before the expiration of the current term.
11.2 Termination for Breach. This section specifies the conditions under which either party can terminate the agreement. Either party may terminate the agreement if there is a material breach of the agreement by the other party. The party that wants to terminate must provide written notice of the material breach and their intention to terminate to the other party. The other party will then have 30 days to cure the breach. If the breach is not cured to the reasonable satisfaction of the party seeking to terminate the agreement, the agreement will end.
11.3 Termination for Convenience. This section specifies that either party may terminate the agreement for convenience with 30 days' written notice. This means that either party can choose to end the agreement without having to prove a breach of the agreement by the other party, as long as they give the other party written notice at least 30 days in advance.
11.4 Effect of Termination; Duties of the Parties Upon Termination. In the event of termination or expiration of the agreement, Partner must stop representing themselves as a promoter or marketer of Moda Products, immediately cease the use of any Moda Marks and Materials, and return all Moda Materials and tangible items in their possession or control containing Moda's Confidential Information. Moda must also return to Partner all tangible items in their possession or control containing Partner's Confidential Information. All licences granted under the agreement will also terminate. If Moda terminates the agreement due to Partner's material breach, Moda's only obligation to Partner will be to pay the Referral Fees that have accrued until the date of termination. If the agreement is terminated for any other reason, Moda will still be obligated to pay Partner the Referral Fees for Eligible Referrals accepted by Moda before the termination.
11.5 Survival. The provisions in sections 1, 6.3, 7.2, 8, 9, 10, 11.4, 11.5, and 12 of the agreement will still be in effect after the agreement expires or is terminated, even if the rest of the agreement is no longer binding. These provisions are considered to be important enough to remain in effect after the agreement ends.
12. MISCELLANEOUS.
12.1 Relationship of the Parties. This section clarifies that the relationship between Partner and Moda is that of independent contractors and not a partnership or agency relationship. Neither party is authorised to enter into contracts or incur debts on behalf of the other party, and each party is solely responsible for its own actions and obligations under this agreement.
12.2 Assignment. This section of the agreement specifies that the partner cannot transfer or assign their rights and obligations under the agreement without the prior written consent of Moda. Any unauthorized transfer or assignment of the agreement would be considered a material breach of the agreement and would be considered null and void. The agreement will be binding on the successors and allowed assigns of both parties.
12.3 Governing Law; Venue. This Agreement is subject to the laws of the Republic of Singapore and both parties agree to comply with these laws. The parties also agree to the exclusive personal jurisdiction of the state or federal courts located in Singapore for any matter arising out of or relating to this Agreement. They both agree to file all pleadings in these courts, submit to the jurisdiction of these courts, and waive any objections to venue in these courts.
12.4 Notices. This section states the procedure for giving notices under this agreement. Notices to Partner shall be sent to the email address provided by Partner in its account in the Partner Portal. Notices to Moda shall be sent to legal@lifesight.io. The Partner is responsible for providing Moda with their most current email address. If the email address provided by Partner is not valid or capable of delivering notices, Moda's email transmission will still be considered effective notice. Notice is deemed given on the first business day following successful email transmission.
12.5 Amendment. The agreement between Moda and Partner can be amended by Moda from time to time. Moda will notify Partner of any changes through email or within the Partner Portal. The updated agreement will become effective the next business day after it is posted. Partner is encouraged to review the agreement periodically. If Partner does not agree with a modification, they must notify Moda in writing within 30 days after receiving notice of the modification. If they do so, the agreement will terminate 30 days after receipt of the notice and the relationship will continue to be governed by the previous version of the agreement. If Partner does not give notice, their continued participation in the Partner Program will be deemed as their acceptance of the changes.
12.6 Waiver. No provision in the Agreement can be waived unless it is done so in writing and signed by a authorized officer of the waiving party. The waiver must be explicit and in the form of a written instrument. This requirement helps ensure that any changes to the Agreement are clear, deliberate and agreed upon by both parties.
12.7 Severability. Each provision of the agreement should be interpreted in a way that makes it valid and enforceable under applicable law. If a provision is found to be invalid or prohibited by the law, it will only be ineffective to the extent of that prohibition or invalidity, while the rest of the agreement remains valid.
12.8 Construction. The singular form of a word will also include the plural form and vice versa. The terms "include" and "including" will be interpreted as being followed by the phrase "without limitation". The captions and headings in the agreement are only for convenience and reference and do not define or limit the scope or content of the agreement and will not impact its interpretation.
12.9 Entire Agreement. The agreement is the final and complete understanding between the parties, and replaces any prior negotiations, correspondence, understandings, or agreements between the parties regarding the same subject matter. This means that the agreement is the only binding agreement between the parties and supersedes any previous agreements on the same topic.
If you have any questions or concerns about what has been stated in this Agreement, please contact us at legal@lifesight.io
