PLEASE READ THIS PARTNER PROGRAM AGREEMENT (this “Agreement”) CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING DOCUMENT. This Agreement and all policies posted on our websites and apps, for example our Terms of Use and Privacy Policy, which are hereby incorporated by reference into this Agreement, set forth the terms under which Gearfire, LLC, an Arizona limited liability company, and its affiliates (“Gearfire” or “Company” or “Us”) offers you access to and participation in the Gearfire Channel Partner Program (the “Program”).
IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, YOU INDICATE YOUR ACCEPTANCE BY (A) CLICKING ON THE "SUBMIT" BUTTON WHEN YOU SUBMIT YOUR APPLICATION TO JOIN THE PROGRAM, OR (B) ACCEPTING THE INVITATION TO JOIN THE PROGRAM.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A BUSINESS ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO AND ARE AUTHORIZED TO ENTER THIS AGREEMENT.
THE PROGRAM IS OFFERED TO YOU BY GEARFIRE VIA THE PARTNERSTACK PLATFORM. WHEN YOU PARTICIPATE IN THE PROGRAM, YOU ALSO ACCEPT ALL TERMS OF USE AND POLICIES GOVERNING THE WEBSITES OF PARTNERSTACK, WHICH ARE HERBY INCORPORATED BY REFERENCE INTO AND MADE A PART OF THIS AGREEMENT.
This Agreement takes effect when you are accepted into the Program via email confirmation from Us (the “Effective Date”).
1. DEFINITIONS. In addition to the definitions above:
1.1 “Affiliate Partners” means those Partners accepted by Us into the Program to perform the Affiliate Marketing Services.
1.2. “Affiliate Marketing Services” means the marketing and promoting of the Company’s products and services using affiliate links and referring Sales Leads.
1.3. “Company’s Marks” means those Company’s logos, service marks, trademarks, trade dress, or trade or corporate names set forth in the Partner Portal.
1.4. “Company’s Materials” means any collateral materials describing Company’s products and services provided by Company to Partner through the Partner Portal for use in Partner’s performance of the Services.
1.5. “Confidential Information” means information related to a party’s business plans, product plans, marketing plans, financing methods, costs, partner, supplier and customer lists, software, technical information, and trade secrets.
1.6. “Eligible Sales Lead” means the Sales Lead identified in a Sales Lead Application that is approved by the Company.
1.7. “Partner” means an individual or entity that has agreed to and accepted the terms of this Agreement and Company has accepted to participate in the Program as an Affiliate Partner, Referral Partner or Strategic Partner.
1.8. “Partner Portal” means the web-based applications and services where You can access the Program and use and participate in the Services.
1.9. “Referral Partner” means those Partners who offer complementary services to the Company and are accepted by Us into the Program to perform the Referral Services.
1.10. “Sales Lead Fees” means the fees paid to Partners who submit an Eligible Sales Lead.
1.11. “Referral Services” means the marketing and promoting of the Company’s products and services and referring Sales Leads.
1.12. “Sales Leads” means a potential or prospective customer for Company’s products and services identified by a Partner and submitted through the Partner Portal.
1.13. “Sales Lead Application” means a Partner’s application for a Sales Lead submitted in the Partner Portal.
1.14. “Services” means collectively, the Affiliate Marketing Services, the Referral Services, and the Strategic Services.
1.15. “Strategic Partner” means those Partners accepted by Us into the Program to perform the Strategic Services.
1.16. “Strategic Services” means creating and executing marketing campaigns for the Company’s products and services, referring Sales Leads, and providing customers support services to the Company’s customers.
1.17. “Guidelines” means the Company’s Trademark Usage Guidelines for the Company’s Marks as set forth in the Partner Portal.
2. PROGRAM
2.1. Acceptance. The Company has sole discretion as to who it will accept as a Partner. Upon our acceptance of your application, You are eligible to participate in the Program and perform those Services for which you have been accepted.
2.2. Account. To participate in the Program, You must create an account through the Partner Portal (a “User Account”) and in setting up the User Account, You agree to (a) provide accurate, current and complete information about You as may be prompted by the Partner Portal, (b) maintain the confidentiality of your password and account; (c) maintain and promptly update all information in the User Account, and any other information you provide to us, and keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Partner Portal. You are solely responsible for all activities that occur under your User Account, whether authorized by you or not. You will (a) immediately notify Us of any unauthorized use of your password or account or any other breach of security of your User Account or the Partner Portal; and (b) ensure that you exit from your User Account each time you use the Partner Portal.
3. SERVICES
Subject to the terms and conditions of this Agreement, the Company makes the Platform available to Partner to perform those Services for which Partner is accepted. The User Account for each Partner will identify those Services the Partner is authorized to perform.
3.1. Sales Leads. Partner will use commercially reasonable efforts to identify specific Sales Leads and market and promote the Company’s products and services to actual and potential Sales Leads. Partner will submit a Sales Lead Application for each Sales Lead. Company will review each Sales Lead Application and will notify Partner through the Partner Portal or via email of Eligible Sales Leads. Company has sole discretion to approve or deny a Sales Lead Application. If a Sales Lead Application does not become a Eligible Sales Lead, then Partner will cease all Referral Services and Strategic Services with respect to such Sales Lead.
3.2. Marketing Services. Partners will use marketing materials provided by Company to create and execute marketing campaigns and services, subject to the terms of this Agreement and other restrictions or requirements set forth in the Partner Portal. Partner will be solely responsible for all services it provides and Company will have no liability for such services performed by Partner.
4. FEES AND PAYMENTS
4.1. Sales Lead Fees. Subject to the terms of this Agreement and in consideration for Partner’s performance of the Services for an Eligible Sales Lead, Partner will receive referral fees based on a percentage of the Eligible Sale Leads monthly subscription to the Company’s products and services for the applicable calculation period and percentage set forth for the Partner in the Partner Portal. If referral fees are conditioned upon an Eligible Sale Lead remaining a Company customer for a certain period of time, if any such Eligible Sale Lead cancels its subscription to the Company’s products or services prior to the completion of the applicable time period, Partner will not be entitled to such referral fees.
4.2. Other Fees. Subject to the terms of this Agreement and in consideration for Partner’s performance of the Services, Partner may earn other fees as set forth in the Partner Portal for such services.
4.3. Time of Payment. All payments under this Agreement are made through the Partner Portal by PartnerStack.
4.4. Requirements for Payment. To receive the applicable fees under this Agreement, Partner will: (a) have been admitted to the Program by Company and agreed to the terms of this Agreement; (b) have a valid User Account and completed all information in the Partner Portal; and (c) be in compliance with all terms of this Agreement. If any of the requirements in this paragraph remain outstanding for six (6) months immediately following the date when an applicable fee is otherwise due to Partner, then Partner’s right to receive such applicable fee will be forever forfeited.
4.5. Changes to Fees. All fees may be revised by providing notice to Partner in the Partner Platform via email. Partner is solely responsible for remitting all taxes tax or governmental charges imposed on or associated with any fees paid to it under this Agreement. All disputes related to fees must be submitted, in writing, to Company within thirty (30) days of release of payment and provide reasonable details to review the dispute.
5. LICENSES AND OWNERSHIP
5.1. Agreement to Company’s Marks. Subject to the terms and conditions of this Agreement, Company grants Partner a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to use, copy, distribute and display the Company’s Marks solely for Partner to perform those Services under this Agreement that Partner is authorized to perform. Partner will use all Company Mark’s in compliance with the Guidelines.
5.2. Quality Control. Upon Company’s request, Partner will provide Company with samples of materials that contain the Company’s Marks for Company’s quality control purposes. If Partner’s use of Company’s Marks do not comply with the Guidelines, then Company may require Partner’s compliance and revision to all materials or may terminate this Agreement and Partner’s participation in the Program.
5.3. Ownership. As between Company and Partner, Company is and will continue to be the sole and exclusive owner of all right, title and interest in and to the Company’s Marks in any form or embodiment and all goodwill associated with or attached to the Company’s Marks. All goodwill arising out of the use of the Company’s Marks by Partner inures to the benefit of Company.
5.4. No Contest. Partner will not contest, oppose or challenge the Company’s ownership of the Company’s Marks. Partner will not at any time do or cause to be done any act or thing that will in any way impair the Company’s ownership of or rights in and to the Company’s Marks. Partner will not register or attempt to register the Company’s Marks, in any form, in any jurisdiction and will not oppose the Company’s registration of the Company’s Marks, alone or with other words or designs. Partner will, on request, give the Company or its authorized representatives any information as to the use of the Company’s Marks pursuant to this Agreement and will render any assistance reasonably required by the Company in maintaining the registration of the Company’s Marks.. Partner will not do anything that might harm the reputation or goodwill associated with the Company’s Marks.
5.5. Agreement to Company Materials. Subject to the terms and conditions of this Agreement, Company grants Partner a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to use, copy, distribute and display the Company Materials solely as necessary to perform the Services.
6. REPRESENTATIONS AND WARRANTIES.
6.1. General. Each of Partner and Company represents and warrants to the other that (a) it has the right, power and authority to enter into this Agreement and fully perform its obligations in this Agreement, (b) this Agreement does not and will not conflict with any agreement to which it is a party, and (c) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement enforceable against it in accordance with its terms.
6.2. Partner Warranty. If is Partner is using the Services to market, sell or offer for sale firearms, Partner represents and warrants that it is familiar with the requirements of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives and will comply will all such requirements and restrictions, including that firearms may only be permitted to be sold to permanent residents of the United States of America who are over the age of 18 and/or 21 and must be transferred through a federally licensed firearms dealer (Federal Firearms Licensee, or FFL) in the state of the customer’s residence. Partner is solely responsible for complying with all applicable local, state and federal laws.
7. RESTRICTIONS ON PARTNER. Partner will not modify any Company’s Mark and/or Company Materials. Partner will not provide any representations or warranties to any Sales Leads or any third party with respect to Company’s product and services.
8. DISCLAIMER. THE PROGRAM IS PROVIDED "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER OF THE PROGRAM. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES AGAINST INTERFERENCE WITH
ENJOYMENT OF INFORMATION, AND WARRANTIES OF QUALITY AND ACCURACY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. CONFIDENTIALITY.
9.1. Non-disclosure Obligations. Each party (the “Discloser”) may disclose or provide access to its Confidential Information to the other party (the “Recipient”). Recipient will not at any time, directly or indirectly, disclose any Confidential Information except to employees of the Recipient who have a need to know in connection with the purpose contemplated by this Agreement and who are under a duty of confidentiality with respect to such information that is at least as restrictive as this paragraph. Recipient will not at any time use or knowingly permit the use of any Confidential Information for purposes other than as authorized under this Agreement.
9.2. Confidential Information Exclusions. Confidential Information does not include information that the Recipient can show by objective or verifiable evidence (a) was known to it before disclosure of the information, (b) was lawfully disclosed by a third party rightfully possessing the information, (c) becomes known to the public through no fault of Recipient; (d) is independently developed by the Recipient without reference to information disclosed by the Discloser provided such independent development can be adequately substantiated by the Recipient’s business records, or (e) is disclosed by the Recipient as required by applicable law.
10. INDEMNIFICATION.
10.1. By Partner. Partner will defend, indemnify, and hold harmless Company and its officers, managers, directors, employees, shareholders, representatives, affiliates, agents and licensees for, from and against any and all suits, obligations, costs, claims, judgments, losses, expenses, liabilities, reasonable expenses, costs and attorney fees (“Claims”) arising from or related to (a) any Claim or allegation that, if true, would constitute a breach of Partner’s obligations, representations, or warranties in this Agreement, (b) any acts or omissions by Partner in performing the obligations or exercising any rights under this Agreement, including any property damage or bodily injury; and (c) Partner’s violation of any local, state, or federal law.
10.2. By Company. Company will defend, indemnify, and hold harmless Partner and its officers, managers, directors, employees, shareholders, representatives, affiliates, agents and licensees for, from and against any and all Claims arising from or related to any claim or allegation that the Company’s Marks infringe any trademark right of any third party.
10.3. Indemnification Procedure. In the event that one Party (the “Indemnifying Party”) is obligated to indemnify the other Party (the “Indemnified Party”) under this Agreement, the Indemnified Party will provide, as soon as is reasonably practicable, the Indemnifying Party with prompt written notice of any claim for which indemnification is required, tender the defense of any such claim to the Indemnifying Party, provide full cooperation for such defense at the Indemnifying Party’s expense, and not settle without the Indemnifying Party’s prior written approval, not to be unreasonably withheld. Notwithstanding the foregoing, however, the failure or delay of the Indemnified Party to notify the Indemnifying Party in a timely manner with respect to any claim for which indemnification is required will not relieve the Indemnifying Party of its indemnification obligations unless, and only to the extent that, the Indemnifying Party is actually prejudiced as a result of the failure or delay. The Indemnified Party may participate in the defense or settlement of a claim with counsel of its own choosing at its expense.
11. LIMITATION OF LIABILITY. EXCEPT AS TO BREACHES OF CONFIDENTIALITY AND AS TO THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS OR REVENUES, EQUIPMENT DOWN-TIME, LOSS OF DATA, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY’S LICENSORS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, A PARTY’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY COMPANY TO CUSTOMER IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY.
12. TERM AND TERMINATION
12.1. Term. This Agreement will remain in effect for one year from the Effective Date unless earlier terminated. This Agreement will automatically renew for successive one year terms unless a party provides notice to the other party of intent not to renew no later than thirty (30) days prior to the expiration of the then-current term of the Agreement.
12.2. Termination. Either party may terminate this Agreement upon written notice to the other party as follows: [upon notice]
(a) Upon thirty (30) days notice to the other party;
(b) if the other party commits a material breach under this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice of the breach; provided, however, that Company may terminate this Agreement immediately if it learns that Partner has provided false or misleading information in Partner’s User Account;
(c) upon the other party voluntarily or involuntarily going into liquidation or bankruptcy, taking steps to prepare for such liquidation or bankruptcy, making an assignment for the benefit of creditors, or having a receiver or a trustee appointed for its properties;
(d) upon the other party being unable to pay its debts when due or ceasing to continue material business operations, or
(e) upon the other party otherwise unwinding or dissolving its business.
12.3. Effect of Termination. Upon termination of this Agreement, (a) all rights and licenses granted under this Agreement will terminate, (b) Partner will immediately cease representing itself as a partner of Company and cease all use of Company’s Marks and Company Materials, (c) each party will immediately return Confidential Information to the Disclosing Party and (d) Company will pay Partner all fees earned under this Agreement prior to termination unless Company terminated this Agreement pursuant to Section 12.2 Sections 1, 5.3, 5.4, 8, 9, 10, 11, 12.3, and 13 will survive the expiration or termination of this Agreement.
13. MISCELLANEOUS
13.1. Independent Contractor. The relationship of the parties under this Agreement is that of independent contractors and nothing contained in this Agreement will be construed to create a relationshipof employer and employee, principal and agent, franchisor and franchisee, partnership or the like. No party will have any power or authority to obligate or bind the other party in any manner whatsoever, except as specifically provided in this Agreement.
13.2. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by an act of God, strike, lockout, law, regulation or ordinance, pandemic, war or terrorism, or by any reason of any other matter if beyond the control of the affected party (each, a “Force Majeure Event”), provided that the affected party resumes full performance as promptly as possible following such Force Majeure Event.
13.3. Notices. Any notice required under this Agreement will be in writing and will be deemed to be properly given when (a) if to Partner, delivered to Partner at the email address provided by Partner in the Partner Portal, and (b) if to Company, delivered to Company via email to partners@gearfire.com. Partner is responsible for maintaining a valid and active email address in the Partner Portal and any notice to such email address will be effective.
13.4. Equitable Relief. Partner acknowledges and agrees that a breach or threatened breach of Sections 5 or 9 will cause irreparable harm to Company for which an adequate remedy at law does not exist. Accordingly, in the event of a breach or threatened breach of Sections 5 or 9, Company will have, in addition to any other rights it may have and without an obligation to post bond or any other security, the right to seek equitable relief, including injunctive relief.
13.5. Jurisdiction and Disputes. This Agreement is governed by the laws of the state of Arizona, without regard to conflict of laws principles. The state and federal courts in Maricopa County, Arizona will have exclusive jurisdiction over any claim, dispute or controversy of whatever nature arising out of or related to this Agreement. Each Party irrevocably consents to personal jurisdiction and venue in the state and federal courts in Maricopa County, Arizona, and agrees to service of process issued or authorized by, any such court and waives any objections to this venue or claims of an inconvenient forum. Any cause of action or claim that Partner may have with respect to this Agreement must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred.
13.6. Attorney Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party, as determined by the court, arbitrator or other decision-maker, will be entitled to recover its attorney fees and costs.
13.7. Assignment. Partner may not assign, transfer, or delegate, directly or indirectly, by operation of law or otherwise, any of its rights or obligations under this Agreement, without the prior written consent of Company. This Agreement will be binding upon, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted or purported transfer, assignment, or delegation in violation of this Section will be null and void and without effect.
13.8. No Waiver. Any waivers to this Agreement must be in writing and must be executed by duly authorized representatives of the waiving party. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.
13.9. Amendments. Company may modify the terms of this Agreement by providing notice to Partner of such amendments through the Partner Portal and posting the new agreement in the Partner Portal. The updated Agreement will become effective and binding on the next business day after it is posted. When the Agreement is change, the “Last Modified” date above will be updated to reflect the date of the most recent version. If You do not agree with a modification to this Agreement, You must notify Us in writing within thirty (30) days after receiving notice of modification and upon receipt of that notice, this Agreement will terminate. Partner’s continued participation in the Program after notice of any change to this Agreement constitutes acceptance of such change(s).
13.10. Construction. The section headings in this Agreement are for convenience only and are not to be used in interpreting this Agreement. Any and all uses of the word “including” in this Agreement mean “including without limitation.”
13.11. Severability. In the event that any provision of this Agreement is deemed unlawful or otherwise unenforceable by any tribunal of competent jurisdiction, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every provision or restriction set forth in this Agreement is independent and severable from the others, and no provision or restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other provision or restriction may be unenforceable in whole or in part.
13.12. Entire Agreement. This Agreement and all agreement, terms and policies incorporated by reference into this Agreement, constitute the entire, final and exclusive agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous, agreements, understandings, and communications, whether written or oral. To the extent any terms and conditions of the main body of this Agreement conflict with the terms and conditions of any policies or incorporated agreements, the terms and conditions of this Agreement will control, except where the parties expressly agree to override a provision of this Agreement.
Contact Us
To learn more about our partnership agreement, you may contact us at partners@gearfire.com or at:
Gearfire, LLC
10101 N 92nd Street, Suite 201
Scottsdale, AZ 85258
