Contentsquare Partner Program Membership Agreement

This is a legal and enforceable contract between you (“you” or “Partner”) and Content Square SAS, a French company having its principal place of business at 7 rue de Madrid, 75008 Paris.  Contentsquare and Partner may each be referred to as a “Party” and shall be collectively referred to as the “Parties”.

For the avoidance of doubt, if the parties agree a separate agreement relating to the Partner Program, that agreement shall prevail.

By clicking its acceptance on the enrollment page for this Agreement, you are:

(i)   representing to Contentsquare that you have the authority to bind that organization and agreeing on behalf of such organization (therefore "you" and "your" will refer also to that organization) that you have read and that you agree to comply with and are bound by the terms and conditions of this Agreement (in particular the limitations of liability at clause 16) and all applicable laws and regulations;

(ii) applying to participate in the Partner Program.

The Agreement will become effective only upon Contentsquare’s written acceptance of the Partner’s application to participate (“Effective Date”), Contentsquare reserves the right to reject any application, in which case the Agreement will not become effective.

The Parties hereby agree to be bound by the terms and conditions of this Agreement, as well as by the terms and conditions of any order form(s), specific service terms, product details and applicable license/subscription terms set forth in any exhibit hereto or the applicable order form(s) which may be executed by the Parties from time to time.  Such order form(s) shall be subject to the terms and conditions of this Agreement.

Whereas, Partner wishes to be included, and Contentsquare agrees to include Partner, under the terms of this Agreement, as a member in Contentsquare’s Partner Program (respectively the “Membership” and “Partner Program”).

Now, Therefore, in consideration of the representations and promises of the parties set forth herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions: The following terms shall have their respective meaning under the Agreement and any related Schedule:

    

   1.1. “Affiliate” of a Party means any entity that the Party directly or indirectly controls, is under common control with, or is controlled by, where control means the ownership of more than fifty percent (50%) of the voting interests of the subject entity.  Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.

   1.2. “Applicable Law” means (i) any and all laws, statutes, regulations, by-laws, orders, ordinances and court decrees that apply in respect of or in connection with the performance and supply of the Services, and (ii) the terms and conditions of any applicable approvals, consents, exemptions, filings, licenses, authorities, permits, registrations or waivers issued or granted by, or any binding requirement, instruction, direction or order of, any applicable government department, authority or agency having jurisdiction in respect of that matter.

   1.3. “Business Day” means a day that is not a Saturday, Sunday, Christmas Day, Boxing Day, New Year’s Day, or any public or bank holiday in France.
   
   1.4. “Confidential Information” means all information provided directly or indirectly by or on behalf of a Party (the “Disclosing Party”), to the other Party (the “Receiving Party”) before, on, or after the date of this Agreement, whether orally or in writing, which is of a confidential nature or which would be reasonably considered as being confidential. Confidential Information shall include information relating to this Agreement which is not generally known to the public, non-public financial information/data, business plans or methods, product roadmaps and pricing and other commercially sensitive information, marketing strategies, sales projections and supplier lists/names. , Confidential Information does not include information that: (a) was or becomes generally known to the public through no fault or breach of the Agreement by the Receiving Party; (b) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (c) was rightfully obtained by the Receiving Party from a third party not under a duty of confidentiality and without restriction on use or disclosure; (d) was rightfully in the Receiving Party’s possession at the time of disclosure without restriction on use or disclosure; or (e) is disclosed by the Receiving Party with the Disclosing Party's prior written approval.

    

   1.5. “Contentsquare Partner Portal” means a platform provided by Contentsquare, from which Partner can make referrals using the RAF (as defined below), track the progress of such referrals, be notified of any Qualified Agreements, and view the payments made by any Approved Potential Clients.
   
   1.6. “Contentsquare Terms” means the Contentsquare terms of use located at https://contentsquare.com/legal/terms-conditions/ or such other terms of use provided by Contentsquare from time to time to govern Partner and Partner Customer’s use of the Contentsquare Services in accordance with the terms of this Agreement.

    

   1.7. “CS Service” means the products and services (as applicable) provided by Contentsquare or its Affiliates under an order form, which may include software or other technology licensed to Contentsquare or its Affiliates from third parties and embedded into the services that Contentsquare or its Affiliates provides to Customer.  For the avoidance of doubt, CS Service includes Script(s) and SDK(s) but does not include Third-Party Services (defined below).

    

   1.8. “Developer Tools and Codes” shall mean such SDK’s, API’s, files, samples, images, plug-ins, JAR files, java script, or any other codes or materials licensed to Partner by Contentsquare for development of an Integration.

    

   1.9. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time.

    

   1.10. “Intellectual Property Rights” means any and all intellectual property rights including,  patents, rights to inventions, utility models, copyright and related rights, trade and service marks, trade, business and domain names, rights in trade dress and get-up, rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semiconductor, mask work, and topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property and industrial property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or may subsist now or in the future.

    

   1.11.“Integration” shall mean the development of an integration of Contentsquare functionality into Partner products.

    

   1.12. “Membership Capacity” shall mean Partner acting in the capacity of a Reseller, Referrer, or Professional Service Partner. 

    

   1.13. “Membership Level” means Partner’s Membership level as specified in Section ‎2 below as may be modified upon Contentsquare’s consent and sole discretion from time to time.

    

   1.14. “PCOF” means Partner Customer Order Form, as such is defined under the Reseller Schedule, if applicable.

    

   1.15. “Personal Data” shall have the meanings set out in the GDPR. 

    

   1.16. “Professional Service Partner” shall mean a Partner that provides certain services to Contentsquare clients pursuant to the Service Provider Supplemental Terms.

    

   1.17. “RAF” means Referral Application Form, as such is defined under the Referral Schedule, if applicable. 

    

   1.18. “Reseller” shall mean Partner acting in the capacity of a reseller of the CS Service pursuant to the Reseller Supplemental Terms.

    

   1.19. “Referrer” shall mean Partner acting in the capacity of a referrer of the CS Service pursuant to Referrer Supplemental Terms.

    

   1.20. “Script(s)” means the JavaScript generated by Contentsquare and provided to Customer as part of the CS Service, which, when implemented on Customer Site(s) by or on behalf of Customer, interacts with the CS Service and enables the CS Service to function, including for the purpose of  blocking or preventing collection of personal data other than Permitted Personal Data.  

    

   1.21. “SDK(s)” means the software development kit generated by Contentsquare and provided to Customer as part of the CS Service, which, when implemented on Customer App(s) by or on behalf of Customer, interacts with the CS Service and enables the CS Service to function, including for the purpose of blocking or preventing collection of personal data other than Permitted Personal Data.  

    

   1.22. “Supplemental Terms” shall mean such supplemental terms to this Agreement as may be required under a specific Membership Level or Membership Capacity and attached as Schedules to this Agreement (“Schedules”).   Any reference to Agreement shall include any Supplemental Terms applicable to Partner.
2. Partner Appointment – Partner shall be appointed as the type(s) of partner as set out in its Membership Level set out in the relevant Appendix.
3. Membership Level.
   3.1. In order to maintain its Membership Level, Partner must meet all specific Partner Program requirements specified by Contentsquare under the specific Membership Level (“Program Requirements”) the Supplemental Terms. Failure to do so may lead to termination of this Agreement and/or transfer to a lower Membership Level.

    

   3.2. In certain cases, Partner may be eligible, during the Term, for a higher membership level in which case Contentsquare may notify Partner of such eligibility. Any change in Membership Level must be approved by Contentsquare in writing.  
4. Partner Program. During the Term Partner shall be entitled to the Membership benefits provided under the applicable Membership Level.
5. Certification. In the event Partner fulfills all Requirements including appropriate Training, Partner shall be entitled to receive certification as an authorized partner of Contentsquare (“Certification”) appropriate for its Membership Level.  
6. Contentsquare Licenses.  Subject to Partner obtaining and maintaining Certification:

    

   6.1. Contentsquare grants Partner the right to display the Contentsquare Certification mark (“Contentsquare Mark”) as provided by Contentsquare to Partner and to name itself as an authorized partner of Contentsquare in accordance with the terms of its Membership Level.  No other use of the Contentsquare, name, logo, or any other trademark of Contentsquare shall be permitted unless explicitly approved by Contentsquare in writing, including, in any press release, promotional materials, or case studies. 

    

   6.2. Partner grants Contentsquare the right to display Partner mark(“Partner Mark”) as provided by Partner to Contentsquare and to name the Partner as an authorized partner of Contentsquare.  No other use of the Partner name, logo, or any other trademark of Partner shall be permitted unless explicitly approved by Partner in writing, including, in any press release, promotional materials, or case studies. 

    

   6.3. Contentsquare grants Partner the right to use such materials, content or documentation provided by Contentsquare from time to time in order to market the CS Service and/or otherwise to provide technical or other information relating to the CS Service (the “Documentation”) solely in connection with its Membership. 

    

   6.4. Contentsquare grants Partner a non-exclusive, non-sublicensable, non-transferable, license to install and use the Developer Tools and Codes for internal business operations to create and test Integrations or for such other purpose as explicitly permitted (if at all) under your Membership Level or as otherwise specified as part of the download of such Developer Tools and Codes. Partner shall not, modify, translate, create any derivative works, reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any of the Developer Tools and Codes or any part thereof.
7. Contentsquare Account. As part of Partner’s Membership, Partner may be provided with an account to access a certain CS Service. Use of such an account by Partner is non-transferable and may be used by Partner solely for Training and Integrations testing purposes. Partner is restricted from using the CS Service for any other purpose and Contentsquare reserves the right to terminate access to such account at any time and for any reason.  Use of such CS Service shall be subject to the Contentsquare Terms.
8. Joint Efforts. 
   8.1. Business Opportunity - The Parties shall work together in good faith and in a timely manner to discuss business opportunities advancing both Parties’ products and services whether separately or in combination, to coordinate efforts and to cooperate in any other way that seems fit and agreed by the Parties (“Business Opportunity”). Each party will cooperate in good faith with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly benefit from any agreed Business Opportunity. Partner hereby agrees to: (a) conduct its business in a manner that reflects favorably on the relationship between Contentsquare and Partner; (b) refrain from any deceptive, misleading, or disparaging practices; and (c) ensure that all services provided by Partner under this Agreement comply with all applicable foreign, federal, state and local laws, rules, orders and regulations.

    

   8.2. Partner Engagement Plan - At the request by Contentsquare, the Parties will collaborate to establish a detailed marketing and sales plan (“Partner Engagement Plan”) to promote the Service within 90 calendar days after the Effective Date and will review and revise the Partner Engagement Plan on an annual basis thereafter.  As part of the Partner Engagement Plan, the Partner and Contentsquare will participate in regular reviews of the business and the marketing activities in the Partner Engagement Plan.  
9. Term and Termination. This Agreement will enter into effect on the Effective Date and will continue until it has been duly terminated (the “Term”). Either Party may terminate this Agreement at any time by a 30-day written notice to the other Party without any entitlement or obligation to any compensation. Upon a Party’s material breach of this Agreement the other Party may terminate this Agreement if such breach remains uncured for a period of 10 days from notice of such breach or with immediate effect if such breach is deemed by the non-breaching party as incurable. This Agreement may be terminated with no notice period by either Party (i) at any time that the other Party is liquidated or otherwise ceases the conduct of business in the ordinary course; or (ii) if the other shall seek protection under any bankruptcy, receivership, trust deed, creditors' arrangement, or if any such proceeding is instituted against the other.
10. Consequences of Termination/Expiration of Agreement. Upon termination of this Agreement Partner shall, except where reasonably necessary in respect of PCOF’s in place at the date of termination (if applicable): (i) cease all display, advertising, and use of all Contentsquare Marks and will not thereafter use, advertise, or display any such names, trademarks, logos, or designations; (ii) promptly return to Contentsquare, at Partner’s expense, all tangible property representing Contentsquare’s Confidential Information; (iii) erase/delete any such Confidential Information held by it in electronic form and confirm such in writing. All licenses and rights granted to Partner under this Agreement shall terminate forthwith upon termination or expiration of this Agreement, except as may otherwise be specified in any Supplemental Terms. Termination of this Agreement shall not affect any existing PCOF signed between the Parties for the provision of services to a Partner Customer (as such terms are defined under a Reseller Schedule, if applicable) until the expiration of such PCOF, and any provisions under this Agreement relating to the services provided under such PCOF will survive the termination of this Agreement until the expiration of such PCOF.
    
    10.1. Confidentiality.

     

    10.1.1. Restricted Use and Nondisclosure.  During and after the Term, the Receiving Party shall (a) use Confidential Information solely for the purposes of this Agreement, (b) not reproduce, disseminate, or disclose Confidential Information to any person, except to the Receiving Party’s or its Affiliates’ employees, authorized representatives, contractors and advisers who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this Section ‎11, and (c) protect all Confidential Information with at least the same degree of care as it protects its own information of a similar nature.

     

    10.1.2. Required Disclosure.  If the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will give prompt written notice to the Disclosing Party before making the disclosure, unless prohibited from doing so by legal or administrative process, and cooperate with the Disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.

     

    10.1.3. Ownership. The Receiving Party acknowledges that, as between the Parties, all Confidential Information it receives from the Disclosing Party, including all copies thereof in the Receiving Party’s possession or control, in any media, is proprietary to and exclusively owned by the Disclosing Party. Nothing in the Agreement grants the Receiving Party any right, title or interest in or to any of the Disclosing Party’s Confidential Information. The Receiving Party’s incorporation of the Disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.

     

    10.1.4. Termination.  Upon termination of this Agreement and all PCOF(s), each Party shall, within ninety (90) calendar days from the date of termination (or as otherwise agreed as the retention period under this Agreement or the applicable Order Form with respect to Visitor Data), return or anonymize or destroy all Confidential Information received from the other Party, or created or received by a Party on behalf of the other Party, which are in such Party’s possession. Notwithstanding the foregoing, any Confidential Information that is stored on routine back-up media for the purpose of disaster recovery and subject to destruction in due course and any latent data such as deleted files and other non-logical data types, such as memory dumps, swap files, temporary files, printer spool files and metadata that are generally considered inaccessible without the use of specialized tools and techniques will not be within the requirements for return or destruction of Confidential Information as set forth by this paragraph but shall still be subject to the non-use and nondisclosure obligations hereunder.
11. Anti-Bribery. Contentsquare is committed to doing business worldwide ethically, free from corruption without exceptions and in compliance with all applicable statutes, regulations and codes relating to anti-bribery and anti-corruption laws (“Relevant Requirements”) and expects its partners to comply with the same high standards. Neither Partner nor any of its personnel has or will improperly provide (or offer to provide), directly or indirectly, anything of value to anyone, including government officials to obtain or retain business, to obtain a commercial advantage, or to receive favored treatment, anywhere in the world and shall comply with all Relevant Requirements. Partner shall immediately notify Contentsquare in writing of any suspected or known breach of the obligations under this Section ‎11. Before execution of this Agreement and at any time during the engagement, Contentsquare may carry out due diligence on Partner’s business to confirm compliance with the obligations set forth in this Section ‎11.
12. Compliance with Policies. Partner shall, at all times, comply and ensure that its personnel comply with all Contentsquare's relevant policies and procedures applicable to Partner, as amended from time to time and notified to Partner. These will include, without limitation, Contentsquare’s Supplier Standards (https://contentsquare.com/legal/contentsquare-supplier-standards/) and Code of Conduct (https://contentsquare.com/legal/codes-of-conduct/).
13. Intellectual Property. Contentsquare, its Affiliates, and/or its licensors own all Intellectual Property Rights and other rights in and to the CS Service and Documentation, any improvements, design contributions, or derivative works and any related knowledge or processes (including any machine learning algorithms output by the CS Service).  All deliverables provided by or for Contentsquare in the performance of Professional Services, excluding Customer Data and Customer Confidential Information, are owned by Contentsquare and constitute part of the CS Service under this MSA.
14. Indemnification.
    14.1. Mutual Indemnification. Each party will hold harmless and defend the other party or any of its officers, directors, employees, agents or affiliates against any and all third-party claims, demands, liabilities, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) (“Damages”) arising out of or relating to infringement by such party of any Intellectual Property Rights.

     

    14.2. Partner Indemnification. Partner will hold harmless and defend Contentsquare or any of its officers, directors, employees, agents or affiliates against any and all Damages arising out of or relating to any breach by Partner of any term, warranty or representation under this Agreement.

     

    14.3. Indemnification Process. If a Party is entitled to indemnification hereunder (the “Indemnified Party”) the Indemnified Party shall give the other Party (the “Indemnifying Party”) prompt written notice and provide the Indemnifying Party, at its option, control to defend against the claim. If the Indemnifying Party elects to defend the action the Indemnifying Party will be obligated to defend the claim, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such claim. Any compromise or settlement of a claim shall require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
15. Representations and Warranties.
    15.1. Mutual Warranties. Each Party represents and warrants to the other that: (a) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; and (b) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such Party is bound.

     

    15.2. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CONTENTSQUARE, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE PARTNER PROGRAM, CS SERVICE OR DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CONTENTSQUARE DOES NOT WARRANT THAT THE PARTNER PROGRAM, CS SERVICE OR DOCUMENTATION WILL MEET YOUR NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. CONTENTSQUARE DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE AMOUNT OF REVENUE OR ANY OTHER BENEFIT THAT PARTNER MAY RECEIVE RESULTING FROM THIS AGREEMENT.
16. Exclusion of Damages. To the full extent permitted by law, under no circumstances, and regardless of the nature of the claim, shall either Party (or their respective Affiliates) be liable to the other Party for loss of profits, loss of sales or business, loss of anticipated savings, loss of use or corruption of software, data or information, work stoppage or any consequential, incidental, indirect, special, cover, punitive, or exemplary damages arising out of or related to the Agreement, even if apprised of the likelihood of such losses.
17. Limitation of Liability. Except for (a) damages resulting from death or bodily injury, or physical damage to tangible real or personal property, caused by either Party’s gross negligence; (b) damages resulting from either Party’s gross negligence or willful misconduct; and (c) Contentsquare’s right to collect unpaid Fees due hereunder, to the extent permitted by law, the total, cumulative liability of each Party (and their respective Affiliates) arising out of or related to the MPA will be limited to the greater of: (i) the amount paid by Partner to Contentsquare during the twelve (12) month period preceding the first event giving rise to liability and (ii) (ii) US$100,000. The foregoing limitation will apply whether an action is in contract, tort (including negligence), breach of statutory duty, or any other legal or equitable theory. Any amounts recovered by Partner against Contentsquare pursuant to statutory rights shall be aggregated with any other claims hereunder for purposes of the cap on damages set forth above.
18. General Provisions.
    
    18.1. Assignment. Neither Party may assign any of its rights and/or obligations under this Agreement without first obtaining the non-assigning Party's written consent, provided however, that Contentsquare may freely assign this Agreement and all rights and data or information related thereto to an affiliated company or in connection with a merger, a sale of Contentsquare or all (or substantially all) of Contentsquare’s assets, or similar reorganization.

     

    18.2. Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be certified or registered mail, return receipt requested, or by nationally recognized private express courier, and shall be deemed complete upon receipt.

     

    18.3. Governing Law and Jurisdiction. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of France, without giving effect to its conflict of laws provisions. The courts of the city of Paris, France shall have sole and exclusive jurisdiction and venue over any dispute related to this Agreement and both parties hereby consent to such jurisdiction and venue. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded by the Parties. 

     

    18.4. Relationship of the Parties. For the purposes of this Agreement, the parties will at all times be independent contractors with no right to bind or obligate the other in any manner whatsoever. There is no relationship of agency, partnership, joint venture, employment or franchise between the Parties. Except as expressly provided herein, neither party shall have the right to exercise any control whatsoever over the activities or operations of the other party and nothing in this Agreement shall prevent either party from entering into a similar relationship with any other third party, provided such relationship does not violate the terms and conditions of this Agreement.

     

    18.5. Set Off. Contentsquare may, at any time, set off any amounts due or to become due to Partner hereunder, against any amount owed by Partner to Contentsquare.

     

    18.6. No Waiver. Either Party's failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.

     

    18.7. Entire Agreement. This Agreement and any of its attached exhibits and appendices, constitute the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between Partner and Contentsquare as to the subject matter hereof.  This Agreement may only be amended by an instrument in writing signed by the Parties.

     

    18.8. Survival. Notwithstanding any termination of this Agreement, as well as any terms which by their nature should survive termination of the agreement shall survive and continue to be in effect in accordance with their terms.