This document (the “Agreement”) contains terms and conditions between your Company (“you”, “your” or “Partner”) and WhistleOut Pty Limited (“WhistleOut”, “us”, “we”, “our”) that govern your participation in the WhistleOut Partner Program (“Partner Program”).
For the Program and provision of services to commence, the Partner is required to fill up and sign a Partner Service Order covering the services (“Service Order”). Each Service Order entered into pursuant to this Agreement shall be governed by and construed in accordance with the terms and conditions of this Agreement, and each Service Order shall be deemed to incorporate the terms and conditions of this Agreement. To the extent the terms and conditions of this Agreement and the terms and conditions of any Service Order conflict, the terms and conditions of this Agreement will take precedence and control, unless the Service Order specifically states, with respect to a particular provision, that the provision in the Service Order is meant to control. Service Orders are intended to describe, among other things, the services to be provided by WhistleOut to the Partner, the scope and specifications of support, applicable service levels, service charges and/or revenue share, and any assumptions that govern the performance of the Services.
The following services are available to our Partners under the Program:
a. Deliver to us the Materials in a format specified by us no later than the agreed delivery date, to enable us to create Service Web Pages, Template HTML pages and functionality as suitable for integration as Service Web Pages. These should include your company logo, hero font and hero brand color.
b. During the term of the Agreement and the Service Order, permit your brands to be displayed on the Service Web Pages (in accordance with the Materials you provided) and, as may be relevant the Widget, on the WhistleOut Website (including for these purposes any other domains, platforms or sites of WhistleOut) and in any marketing or advertising undertaken by WhistleOut in relation to its websites, platforms, and domains.
c. Send within five (5) business days of receipt by email to [email protected] or such other email address we may specify all pre or post-sales queries or complaints regarding WhistleOut, the Service, the results of the searches provided by the Service, any Supplier or any of the Selected Products regardless of the means by which you receive such queries or complaints.
d. Allow the display of promotional widgets and direct links to your website to generate visitors to the Service Web Pages, including, but not limited to (i) WhistleOut widgets; (ii) links to the Service Webpages; (iii) articles to promote the categories of products and services specified in the Service Order; and (iv) WhistleOut content and technical related content pages.
a. Use the Service Web Pages or WhistleOut Website in a manner that uses excessive resources or is likely to prejudice the efficient operation of the WhistleOut Website and the Service.
b. Use any method or process to consolidate or combine any WhistleOut Website or Service Web Pages (and as may be relevant the Widget) content with any other content, data, information, images, or material.
c. Use any method or process (including data scraping, collection or accumulation tool, robot, spider or scripted responses) for the purpose of obtaining, processing, copying, replicating, distributing, reconfiguring, republishing, viewing, assessing, analyzing, modifying, or repackaging the Widget or WhistleOut Website or Service Web Pages content.
d. Make statements or representations about WhistleOut, the Service, the results of the searches provided by the Service, any Supplier or any of the Selected Products which are inaccurate, misleading or deceptive (or may be so) or which would otherwise give rise to legal liability or affect (in a pejorative way) the reputation, goodwill, business or standing of WhistleOut or any of its affiliated entities.
e. Make available on any website, domain, platform, electronic interface or facility directly or indirectly owned, controlled or operated by (or on behalf of) the Partner or any of its affiliates, partners, connected persons, licensees, or agents, any product or service or offering equivalent, similar to or which would or might compete with the Service or business of WhistleOut in respect of the comparison of telecommunications (including mobile plans) and/or internet (including broadband plans offered by any retail service provider, internet service provider or concerning the nbn™) products and/or services (whether specific or bundled) which are available from time to time in or from the United States.
a. The Service Web Pages will be located at a Website Subdomain and will be operated, hosted, and managed by us independently of your Website, using WhistleOut infrastructure and web servers not visible to search engines. The Partner’s Website (and as may be relevant the Widget) will include direct follow links to the Selected Products pages on the Widget or the Service Web Pages.
b. The Widget or Service Web Pages will contain a “powered by WhistleOut” tagline plus WhistleOut logo and include a link to the WhistleOut Website.
c. You must seek and obtain the prior written approval (not to be unreasonably withheld) if you wish or propose to publish (directly, indirectly, or in syndication) any article or opinion piece or editorial or other content on the Partner Website, relevant domain or email where it concerns a single Supplier or its products or services. In the event that there are commercial link(s) or widget(s) within the content published by the Partner, WhistleOut’s consent must be secured before publication of the commercial links or widgets.
d. We may disable (permanently or temporarily) or modify, at any time, any links or functionality of the Service Web Pages or the Widget so that they do not appear or re-direct a user so that they land on another page, site, or location (which may be the WhistleOut Website). This will enable us to inform the relevant Supplier and to assess and determine whether any such proposal or outcome will facilitate quality traffic generation and maintain or increase conversion rates. This is in the context that different Suppliers have differing tolerance levels and requirements with respect to traffic generation and as regards budgets and expenditure. You will not do or omit to do anything without first obtaining such approval and agree to take all steps required by WhistleOut or a Supplier with respect to such matters.
e. WhistleOut is responsible for entering and maintaining the relevant data, content, and information (being plan data and content on the WhistleOut Website) presented on the Widget or the Service Web Pages. You acknowledge and agree that WhistleOut uses information supplied by Suppliers in good faith without making any further enquiries into its accuracy and WhistleOut is not liable to the Partner or to any third party for any information provided by a Supplier and made available as part of the Service that is (or may be) inaccurate, misleading, or deceptive or which would otherwise give rise to legal liability and you hereby agree that you will indemnify, defend, and hold harmless WhistleOut regarding the same.
f. The selection of search criteria used by the Service, the Suppliers, and Selected Products included as part of the Service, the methods of ranking the Selected Products and the method and style of presentation of data and content on the Service Web Pages (and as may be relevant the Widget) are all at the sole discretion of WhistleOut.
g. You acknowledge that the Suppliers are not the only suppliers of the Selected Products in the United States and that there may be other products or services available in the United States of the same or similar kind as the Selected Products but which are not included in the Service.
a. The Parties are respectively responsible for their own compliance with all applicable laws in the context of the provision of the Service and the Service Web Pages (and as may be relevant the Widget) as well as operation of the Partner’s Website.
b. The Parties will include such reasonable disclosures, disclaimers, qualifications, and information on the Service Web Pages (and as may be relevant the Widget) and Partner’s Website as required by applicable law.
c. Each Party will promptly notify each other of any users’ or regulatory authorities’ queries or complaints regarding the Service, the Service Web Pages (and as may be relevant the Widget), or the Partner’s Website actually received by it (by whatever means of receipt).
d. The Parties each warrant and represent that they will comply with all applicable laws, regulations, and relevant regulatory requirements including concerning the provision of or use of the Services, as the case may be.
a. Click Revenue means the net amount of revenue actually received by WhistleOut in respect of a Reporting Period for Completed Click-throughs in that Reporting Period.
b. Completed Click-through means an application for, enquiry concerning or purchase of a Selected Product by a visitor via the Service Web Pages (or Widget as relevant) which is thereby routed through to the Supplier’s relevant website, domain, or platform in respect of pertinent Selected Products. This usually occurs when a visitor clicks a go or View Plan button for the Supplier concerned.
c. Revenue means Click Revenue actually received by WhistleOut in a given Reporting Period in respect of the Service Web Pages as the case may be or the context requires. For the avoidance of doubt, Revenue does not include WhistleOut’s Share of Revenue after its calculation from the original Revenue (to avoid double-counting).
a. Visitor numbers to the Website Sub-Domain per Selected Product
b. Service Web Page view numbers per Selected Product
c. Revenue per Selected Product
d. Yield per visitor to the Website Sub-Domain
e. Revenue per Supplier; and
f. Revenue by referrer.
a. It owns or has a right to use (whether under license or otherwise) the WhistleOut IP that is to be incorporated into and used in respect of the Service Web Pages and such incorporation and use will not infringe the Intellectual Property Rights of any third party; and
b. It has a right (whether under ownership, license, or otherwise) to permit Partner to use the WhistleOut IP in accordance with the terms of this Agreement; and
a. You (and/or your affiliates) own or have a right to use (whether under license or otherwise) the Partner IP that is to be incorporated into the Service Web Pages (plus the Widget as relevant) and such incorporation will not infringe the Intellectual Property Rights of any person;
b. You have the right (whether under ownership, license, or otherwise) to permit WhistleOut to use and modify as relevant (on a royalty free basis) the Partner’s IP in accordance with the terms of this Agreement; and
c. No legal proceedings have been threatened or instituted by any third person against the Partner for the infringement of its Intellectual Property Rights or seeking to challenge the ownership of or right to use and modify as relevant the Partner IP that is to be incorporated into the Service Web Pages (plus the Widget as relevant) and you are not aware of any circumstances that are likely to give rise to any such proceedings or disputes.
a. Either Party materially breaches this Agreement and such breach is either incapable of remedy or the defaulting party fails to remedy such material breach within 15 Business Days of receiving a notice in writing from the other party specifying the action required of the defaulting party to remedy the material breach;
b. Either Party violates any applicable law or engages in fraud related to the Agreement or the Services;
c. Either Party has an administrator, liquidator or provisional liquidator appointed to it;
d. Either Party resolves to wind up or is subject to an order to wind up (other than for voluntary reconstruction);
e. Either Party has a receiver, receiver and manager or official manager properly appointed to it or in respect of a substantial proportion of its assets or undertakings;
f. A court or tribunal makes an order that either party be wound up in insolvency, unless that party successfully appeals such order.
a. The Partner defames, ridicules, brings into disrepute, or otherwise negatively affects the reputation (in WhistleOut’s sole determination) of WhistleOut, its partners, Suppliers, affiliates, or any of their respective employees or officers;
b. Traffic quality is or has been low which is or has been driving down conversion rates for Suppliers and this is not rectified to the reasonable satisfaction of WhistleOut within 30 days of the date of a notice from WhistleOut to the Partner; or
c. Traffic volumes (number of transaction clicks) are not meeting the benchmark requirements of WhistleOut from time to time and this is not rectified to the reasonable satisfaction of WhistleOut within 30 days of the date of a notice from WhistleOut to the Partner.
The Parties hereby acknowledge and agree that:
WhistleOut and Partner independent contractors and no partnership, joint venture, employment, agency, or franchise relationship is created by this Agreement. Neither Party will have any authority to obligate or bind the other Party in any respect.
Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of any party (except in relation to a payment or indemnification provision) will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with such default, including, but not limited to a Force Majeure Event.
All notices, requests, consents, and other communications required or permitted under this Agreement shall be in writing (including via email) and shall be (as elected by the Party giving such notice) hand delivered by messenger or courier service, by email, or certified mail (postage prepaid), return receipt requested, addressed to the addresses below each Party’s signature, or to such other address as either Party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; (b) if delivered electronically, when the confirmation of transmission or answer back is received; or (c) on the date upon which the return receipt is signed or delivery is refused, or the notice is designated by the postal authorities as not deliverable if mailed.
Neither party may assign its rights or delegate its duties hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, WhistleOut may assign this Agreement and its rights and obligations hereunder to the purchaser of all or substantially all its assets, or to its successor in any merger or stock purchase, in each case without the prior written consent of other Party.
WhistleOut reserves the right to modify any of these terms and conditions herein at any time at WhistleOut’s sole discretion. Such modification shall take effect upon posting to WhistleOut’s website. Your continued participation in the Partner agreement after publication of said modification will constitute binding acceptance of the change.
The failure or delay of either Party at any time to require performance by the other Party of any provision of this Agreement, even if known, shall not affect the right of such Party to require performance of that provision or to exercise any right, power, or remedy pursuant to this Agreement. Any waiver by either Party of any breach of any provision of this Agreement will not constitute a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right, power, or remedy under this Agreement.
Any provision of this Agreement that is prohibited, unenforceable or invalid in whole or in part is only ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part of that provision or the other provisions of this Agreement, which will continue in full force and effect.
This Agreement may be executed in one or more counterparts executed by one or more of the parties, each of which counterparts will constitute the one agreement which will be binding on all the parties when one such counterpart has been executed by each party.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in Salt Lake County, City of Salt Lake City, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
EXHIBIT A
MUTUAL NONDISCLOSURE OBLIGATIONS
1. Disclosure. Partner and WhistleOut have entered into the Agreement (the “Purpose”). In connection therewith, the parties may disclose to each other information that is considered confidential and proprietary or otherwise not generally available to the public. To protect their proprietary, confidential, and otherwise non-public information, the parties have agreed to the following provisions with respect to confidentiality of information.
2. Confidential Information. As used in this NDA, “Confidential Information” means all nonpublic information disclosed by one party or its agents (the “Disclosing Party”) to the other party or its agents (the “Receiving Party”), whether written, oral, or visual, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation (i) nonpublic information relating to the Disclosing Party’s business plans, analyses, forecasts, predictions or projections, customer and client information, intellectual property, technology, technical information, trade secrets, processes, research, business models, pricing and pricing strategies, marketing ideas, sales data, sales projections, financing plans, valuations, capitalization, budgets, strategies, and other financial information, and (ii) third-party information that the Disclosing Party is obligated to keep confidential.
3. Exclusions. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this NDA, (ii) was in the possession of the Receiving Party free of any obligation of confidentiality at the time of communication to the Receiving Party, (iii) is received from a third party who, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or tortious act, (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information, or (v) constitutes suggestions, comments, or other feedback provided by the Receiving Party to the Disclosing Party with respect to Confidential Information.
4. Use of Confidential Information. The Receiving Party may use Confidential Information only in connection with the Purpose. Except as expressly provided in this NDA, the Receiving Party shall not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party shall take all reasonable measures to avoid disclosure, dissemination, reverse-engineering, or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.
5. Receiving Party Personnel. The Receiving Party shall restrict the possession, knowledge, and use of Confidential Information to its employees, contractors, professional advisors, and entities controlled by it (collectively, “Personnel”) who have a need to know the Confidential Information in connection with the Purpose. Such Personnel shall be informed by the Receiving Party of the confidential nature of such information and shall be directed by the Receiving Party, and shall each expressly agree, to treat such information as confidential in accordance with this NDA. The Receiving Party shall be fully responsible for any breach of this NDA by its Personnel.
6. Disclosures to Governmental Entities. The Receiving Party may disclose Confidential Information as required to comply with legal process or binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party (i) gives the Disclosing Party reasonable notice (to the extent permitted by law) to allow the Disclosing Party to seek a protective order or other appropriate remedy, (ii) discloses only such information as is required by the governmental entity, and (iii) uses reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
7. Ownership of Confidential Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. The Disclosing Party’s disclosure of Confidential Information shall not constitute an express or implied grant to the Receiving Party of any rights to or under the Disclosing Party’s patents, copyrights, trade secrets, trademarks, or other intellectual property rights.
8. Notice of Unauthorized Use. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this NDA by the Receiving Party. The Receiving Party shall cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use.
9. Return of Confidential Information. The Receiving Party shall return or destroy all tangible materials embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) promptly following the Disclosing Party’s written request or upon termination of this NDA; provided, however, that, subject to the provisions of this NDA, the Receiving Party may retain one copy of such materials in the confidential, restricted access files of its Legal Department for use only in the event a dispute arises between the parties related to the Purpose and only in connection therewith. The Receiving Party shall provide written certification of its compliance with this Section.
10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this NDA could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party shall have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this NDA.
11. Survival. The obligations of confidentiality set forth herein shall survive for five (5) years from the date of disclosure of Confidential Information; except for Confidential Information that constitutes a trade secret under applicable laws and regulations, for which the obligations of confidentiality set forth herein shall survive until such Confidential Information no longer qualifies as a trade secret, other than due to an act or omission of the Receiving Party.
12. No Warranty. The Receiving Party understands that the Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information or any other information, which the Disclosing Party furnishes to the Receiving Party. The Receiving Party agrees that, subject to a separate written agreement between the parties concerning the Confidential Information otherwise, the Disclosing Party shall not have any liability to the Receiving Party resulting from the use of the Confidential Information by the Receiving Party or for any errors therein or omissions therefrom.
13. Miscellaneous. Except as otherwise set forth herein, this Nondisclosure Agreement shall be governed by the terms of the Agreement.
