The following is the list of terms and conditions that apply to all members of the Freshworks ISV & Strategic Partnership Program. “We”, “Our”, “Us” or related capitalized terms used herein shall refer to Freshworks Inc. Please read these terms and conditions (“Terms”) carefully as they form a contract between You and Us. We reserve the right to amend these Terms from time to time in which case the new terms will supersede the previous versions. These terms and conditions will provide You with all information You will need to know about Our ISV & Strategic Partnership Program.

 

If You are agreeing to these Terms on behalf of a company, organization or another legal entity (“Entity”), You are representing to Us that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms, “You,” “Your” or related capitalized terms used herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not accept these Terms, You will not be a part of Our ISV & Strategic Partnership Program.

 

1. GENERAL

1.1 Purpose: The parties desire to work cooperatively to build integrations, to market, to sell, to promote and to distribute their respective products and/or services along with the ability to refer leads to one another.

1.2 Objective: Under the Partner Program, parties wish to engage in joint marketing, press releases, blog postings, webinars, and other go-to-market activities to promote each party’s products and/or services. Neither party may bind the other in any manner.

1.3 Entire Agreement: The Terms of this Agreement constitute the entire agreement between the parties with respect to Your participation in Our ISV & Strategic Partnership Program (“Partner Program”), where parties shall engage in mutually agreed activities to promote each other’s products and/or services to prospective customers, throughout the Territory (as the term is hereafter defined). The Terms of this Agreement shall supersede all prior oral or written communications and agreements concerning the Partner Program. This is a non-exclusive arrangement.

 

2. TERRITORY AND EXCLUSIVITY

We hereby appoint You on a non - exclusive and non - transferrable basis to provide Service(s) globally.

 

3. PROGRAM PARTICIPATION

3.1 Membership: To be eligible to participate in the Partner Program, You must first submit a completed application through the appropriate website, https://www.freshworks.com/company/partners/. You are not a member of the Program until We send You notice of acceptance to the Partner Program. Notice will be sent to the email address and contact details provided by You in the application. Upon acceptance to the Partner Program, You shall receive all benefits set forth in the then-current Partner Program, available at < >. You must meet the program requirements specified in the most current Partner Program. We may contract a third party to perform some or all activities of the Partner Program, including services such as compatibility verification or accreditation, and the Terms of this Agreement shall apply to such performance.

3.2 Changes in Partner Program: We reserve the right to modify the terms of the Partner Program from time to time, which shall be binding against You when posted by Us and without requirement on Our part to provide notice.

3.3 Costs: Each Party shall be solely responsible for any costs it incurs in developing, marketing, supporting, maintaining or updating its own products or otherwise participating in the Partner Program.

 

4. PROGRAM OBLIGATIONS

4.1 You shall:

4.2 You shall not:

Violation of these obligations specified under this Section 4, will lead to automatic termination from the Partner Program and You will be ineligible to receive any future commissions.

 

5. REFERRAL OF LEADS

We hereby appoint You to refer Leads (as defined below) to Us subject to the terms and conditions set-forth herein for the marketing, promotion sale and distribution of Our Products and/or services on a non-exclusive basis.

We may also refer potential customers to You and become eligible to receive commission for the same, pursuant to Your referral terms and conditions.

5.1 LEAD(S)

5.1.1  When someone subscribes to Our Products and/or services pursuant to Your sales and marketing efforts in accordance with the Terms of this Agreement, We shall at our sole discretion determine if such subscriber is a Lead for the purposes of this Section (“Lead”). In any event, a subscriber shall not be considered as a Lead for the purpose of disbursing commission to You if such subscriber is

5.1.2  All contracts with respect to Products and/or services between a Lead and Us, will be conducted solely by Us. You agree not to negotiate terms or make commitments on Our behalf.

5.2 Mode of Referral:

5.2.1  All referrals of Leads shall be via the Our designated referral form, which may be in written or electronic form (the “Referral Form”). After You submit a Referral Form, We shall acknowledge (a) receipt of each Referral Form and (b) approve or reject the Referral Form. Approval of a Referral Form is valid only if provided by Us to You in writing or e- mail. The “Referral Date” of a Referral Form shall be the date on which You properly submit a Referral Form to Us.

5.2.2  We reserve the right to approve or disapprove, in Our sole and absolute discretion, any Referral Form for any reason.

5.2.3  You shall have the opportunity, independently or in conjunction with Us, to identify or recommend Products to Leads, by sharing the link provided to You through an identified platform. Your access and use of identified platform shall be governed by such identified platform’s terms and privacy policy. You shall not have more than one account with such identified platform.

5.3 COMMISSION AND PAYMENT TERMS

5.3.1  With respect to each Lead, We will pay You the commission as outlined below, following receipt of payment from the Lead.

5.3.2  Upon a Lead becoming a paying customer with Us, You will be eligible for a recurring commission of 15% of the monthly recurring revenue payable monthly on all applicable transaction amounts actually collected by Us for all Products.

5.3.3  In cases where a Lead becomes a paying customer with Us and subject to Lead’s payment of subscription charges upfront for up-to 1 year, You will be eligible for a recurring commission of 20% of the monthly recurring revenue payable monthly on all applicable transaction amounts collected by Us for all Products.

We shall release all the amounts due to You, within 30 (thirty) days of receipt of all the payments received from the Lead.

No commission is payable on any maintenance or support related services provided by Us to a Lead. No commission is payable for any Products subscribed to by You or Your Affiliates

 

6. MARKETING AND PROMOTION

6.1 You may at Your discretion, choose to create a publicly-available web page that announces participation in the Partner Program and the referral program under this Agreement and contains high-level information about Our Products and/or services. You shall modify the web page as reasonably requested by Us.

6.2You will not be required to engage in any other marketing or promotion of Our Products and/or services.

We may also engage in similar marketing and promotion for You as described in this Section 6.

 

7. CONFIDENTIALITY AND DATA PRIVACY

7.1  “Confidential Information” means any information disclosed by either party to the other party pursuant to this Agreement that is marked “Confidential,” “Proprietary,” or in some similar manner. Each party shall treat as confidential all Confidential Information of the other party and shall not use such Confidential Information except to exercise its rights or perform its obligations under this Agreement and shall not disclose such Confidential Information to any third party. This paragraph will not apply to any Confidential Information that is generally known and available, or in the public domain through no fault of the receiver. The parties agree that any breach or threatened breach of the provisions set forth in this clause shall cause irreparable harm to the non-breaching party and shall entitle the non-breaching party to injunctive and equitable relief in addition to any other remedies it may have.

7.2  You acknowledge and agree that (i) We, at Our sole discretion, have the right to audit You for Your performance under these Terms and You shall extend full cooperation during such audits; (ii) any information about Us, Our customers or Our employees, including but not limited to personal data, disclosed by Us to You shall be utilized by You solely for the purposes required for under this Agreement. A breach of section 7.1 and 7.2 by You shall be deemed a material breach of this Agreement and You shall be liable to indemnify Us in accordance with Section 9.1 of this Agreement.

7.3 Any information that We collect about You shall be governed in accordance with Our Privacy Notice available at www.freshworks.com/privacy.

 

8. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

8.1 Intellectual Property Rights

You acknowledge and agree that all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”), with respect to the Products and all data compiled by Us, including without limitation, any custom development services (both existing and future services) to the Products, shall be Our exclusive property.

Except for the limited licenses set forth in Section 8.2, no Intellectual Property Rights are hereby conveyed to You. You agree to ensure that no action or inaction of Yours or any third party authorised by You, is detrimental to the Intellectual Property Rights of Us and/ or the Products. You shall promptly notify Us of any actual or threatened misappropriation or infringement of Our Intellectual Property Rights that You becomes aware of.

8.2 Use of Trademarks

You shall not remove from the Products (or their packaging or documentation), or alter, any of Our trademarks, trade names, service marks, logos (collectively called “Marks”), patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation), without Our prior written consent. We hereby grants to You a non-exclusive, non-transferable, limited license to use Our trademarks relating to the Products during the term of this Agreement solely in connection with marketing of the Products and/ or provision of Service(s) in accordance with this Agreement provided, however, that

Any use of Our trademarks by You (i) will be in capital letters, (ii) if they are registered in the United States Patent and Trademark Office, will be accompanied by the “®” symbol, (iii) if they are not registered in the United States Patent and Trademark Office, will be accompanied by the “™” symbol, and (iv) will be followed by a common descriptive name for the Products. Your use of Our trademarks will accrue to Our benefit. If You, in the course of performing Your Service(s) hereunder, acquire any goodwill in any of the Marks, all such goodwill will automatically vest with Us and You shall take all such actions or execute any documents necessary to affect such vesting. You also agree not to register any marks identical or similar to the Our Marks.

For the avoidance of any doubt, You shall not use any of Our trading names, trademarks, devices, get ups, logos, guises or other rights in any form, for any purpose or in any manner without Our express written consent.

 

9. INDEMNITY

9.1 Indemnification by You

You will indemnify and hold Us harmless from and against any and all claims, proceedings, losses, damages, liabilities, fines, penalties, costs and fees (including attorneys’ fees) arising out of

9.2 Indemnification by Us

We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Marks as permitted hereunder, brought by a third party alleging that the Marks infringes a third party’s valid intellectual property (an “IP Claim”). We shall, at Our own expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith.
This is Our sole, exclusive and entire liability to You and constitutes Your sole remedy with respect to an IP Claim brought by reason of Your access to or use of the Marks.
This obligation does not apply to any claim based on: (a) a use of other than the version of the Marks in use currently, if the infringement would have been avoided by use of the current version; (b) modification of the Marks by You; or (c) the combination or use of the Marks with materials not furnished by Us, if such infringement would have been avoided by the use of Our materials, information, documentation and/ or Products alone.

 

10. DISCLAIMER OF WARRANTIES

WE HEREBY EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU SHALL NOT MAKE ANY REPRESENTATIONS OR WARRANTY FOR THE PRODUCTS AND SERVICES ON BEHALF OF US.

 

11. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (A) OUR AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS AND ANY SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE COMMISSION THAT YOU ARE ELIGIBLE FOR UNDER THIS AGREEMENT; (B) NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF PROFIT OR REVENUE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) WE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PRODUCTS OR SERVICES NOT PROVIDED HEREUNDER, AND YOU SHALL DEFEND US FROM, AND INDEMNIFY AND HOLD US HARMLESS AGAINST, ALL SUCH CLAIMS. THE LIMITATIONS ON EITHER PARTY’S LIABILITY SET FORTH IN CLAUSES “(A)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY OUR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
THE FOREGOING STATES OUR ENTIRE LIABILITY WITH REGARD TO THE TERMS OF THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE LIMITATIONS ABOVE AND IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF OUR BARGAIN HEREUNDER, AND WE WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

 

12. TERM AND TERMINATION

This Agreement will have an initial term of one (1) year, commencing from the effective date. Thereafter, this Agreement will automatically renew each year for an additional term of one (1) year unless either party notifies the other in writing thirty (30) days prior to the expiration of the then current term of this Agreement. Notwithstanding anything in this Agreement that may be interpreted to the contrary, We may terminate this Agreement without cause and without liability upon sixty (60) days prior written notice to You. However, We may terminate this Agreement with immediate effect for any material breach of the Agreement that is not cured by You within ten (10) days of written notice that specifies the breach.

Upon expiration or termination of this Agreement: You shall cease offering the Products and/or Service(s).

Termination of this Agreement will not affect either partys rights or obligations with respect to Products and/ or Service(s) provided by You prior to the effective date of the termination.

 

13. SURVIVAL

Sections 5, 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive any termination of this Agreement with respect to provision of the Service(s) by You. Termination of this Agreement shall not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

 

14. GOVERNING LAW AND DISPUTE RESOLUTION

The Terms of this Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County, for the purpose of resolving any dispute relating to this Agreement. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in San Francisco, California before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

15. MISCELLANEOUS PROVISIONS

15.1 Amendment of this Agreement: This Agreement may be modified, at any time at Our sole discretion by posting a change notice or a new Agreement on Our website and by email to You. Modifications may include changes in the scope of available Products, Commission and payment procedures, etc. If any modification is unacceptable to the You, You may terminate this agreement with 60 days prior written notice.

15.2 Assignment: You shall not, directly or indirectly assign all or any of Your rights or obligations under this Agreement without Our prior written consent. Notwithstanding anything to the contrary herein We may assign this Agreement at Our discretion. We may freely assign part or whole of this Agreement. Any assignment by You in violation of this Section 15.2 shall be void.

15.3 Counterparts: This Agreement may be executed in counterparts, all of which, when taken together, shall constitute a signed agreement binding upon the parties. Delivery of a signed counterpart of this Agreement by facsimile transmission, in paper copy by courier or regular mail or as an email attachment in PDF format shall constitute valid and sufficient delivery thereof.

15.4 Force Majeure: Neither party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that its inability to perform is due to any cause or circumstance beyond its reasonable control (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event shall promptly notify the other party in writing and take reasonable steps to resume performance with the least possible delay.

15.5 Mutual Obligations: Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.

15.6 Non-Solicitation: During the term of this Agreement and one (1) year thereafter, You will not, directly or indirectly through Your representatives, solicit or attempt to solicit the business of any lead to Us for the purposes of selling products or services of another provider or itself that are substantially similar to Our Products and/or services.

15.7 Notices: All notices to be provided by Us to You under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You while subscribing to the Partner Program; or (ii) electronic mail to the electronic mail address provided by You. Our address for a notice to us in writing by Courier or US Mail is: Freshworks, Inc., Attn: Chief Executive Officer, 1250 Bayhill Drive, Suite 315, San Bruno, CA 94066 with a CC to legal@freshworks.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 (two) business days after being deposited in the mail or with a Courier as permitted above.

15.8 Severability: If any provision of this Agreement is held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of the remaining provisions.

16. DEFINITIONS

Affiliates: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

Products: mean and include Freshdesk, Freshservice, Freshsales, Freshchat, Freshcaller, Freshteam, Freshmarketer, Freshconnect and any new product that We may introduce as a Product to which one may subscribe to and any updates, modifications or improvements to the Products, including individually and collectively, software, the API and any documentation.

Service(s): means to build integrations, to market, to sell, to promote and to distribute Our Products and/or services by You, including the ability to refer leads to Us.

 

16. DEFINITIONS

Affiliates: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

Products: mean and include Freshdesk, Freshservice, Freshsales, Freshchat, Freshcaller, Freshteam, Freshmarketer, Freshconnect and any new product that We may introduce as a Product to which one may subscribe to and any updates, modifications or improvements to the Products, including individually and collectively, software, the API and any documentation.

Service(s): means to build integrations, to market, to sell, to promote and to distribute Our Products and/or services by You, including the ability to refer leads to Us.