Marketing Affiliate Program Terms and Conditions

Last Updated: September 25, 2024

Marketing Affiliate Program Terms and Conditions

Oyster HR, Inc. ("Oyster," “We,” or “Our”) provides global workforce management consultancy services (“Services”) to third parties (“Customers”). You (“You” or “Affiliate”) service similar entities. We would like to offer You the ability to participate in Oyster’s Marketing Affiliate Program (the “Program”). These Marketing Affiliate Program Terms and Conditions (the “Terms”) form the complete agreement between Oyster and You with respect to Your participation in the Program. By electronically indicating Your agreement to these Terms (by clicking “I agree” or otherwise providing Your consent in the manner required by Oyster), You confirm that You have read these Terms and agree to be bound by them. We reserve the right to update or modify these Terms at any time, in Our sole discretion. If We make changes to these Terms, We will update them here and notify You via electronic means, which may include email. Your continued participation in the Program after such notification is Your affirmation that You agree to be bound by the modified Terms. If You do not agree to be bound by the modified Terms, then You must notify Oyster in writing of Your intention to terminate Your participation in the Program as described below.

1. Authorization.

Affiliate is hereby appointed as an authorized referral source to connect Oyster with prospective Customers, subject to these Terms. Affiliate will provide directly, or otherwise cause to be provided, to Oyster any and all information that may be needed to engage prospective Customers, including the name and contact details of decision makers at those companies. All information, in whatever form, Affiliate provides to Oyster will be complete, accurate, and not misleading, to the best of Affiliate’s knowledge and belief. Further, Affiliate represents and warrants that it has the authority to provide such information under applicable data privacy and protection laws.

2. Affiliate Acknowledgement of PartnerStack Terms.

The Program is hosted by PartnerStack on the PartnerStack site(s), use of which is governed by PartnerStack’s Terms and Policies (available at: https://www.partnerstack.com/policies). Visiting the PartnerStack site, or any third party’s sites, may expose Affiliate to content, sites, products, and services created or provided by parties other than Oyster (“Third-Party Content”). Affiliate acknowledges and agrees that Oyster does not review, endorse, or assume any responsibility for Third-Party Content and will have no liability to Affiliate for access to, or use of, any Third-Party Content. Affiliate’s access or use of Third-Party Content is at Affiliate’s own risk and discretion.

3. Referred Customer.

is an entity who has executed a Service Agreement, has timely paid the invoice from the first month of services rendered in connection with the Service Agreement, and remains current on all future invoices as determined by Oyster in its sole discretion if the entity: (i) was personally contacted by Affiliate regarding Services; (ii) did not already exist in Oyster’s sales database or Oyster’s sales records as a pending sales opportunity or prospect; and (iii) was submitted to Oyster by Affiliate as outlined above. Oyster, in its sole discretion, will resolve conflicts whether an entity qualifies as a Referred Customer. Such decisions are final and binding.

4. Subscription Fees.

Subscription Fees are the fee Oyster charges for access to its software, platform, and services, as further described in Oyster’s Terms and Conditions. Subscription Fees may be charged monthly (Monthly Subscription) or annually (Annual Subscription).

5. Fees for Referred Customers.

Subject always to each Referred Customer paying Oyster’s invoices for their Subscription Fees in a timely fashion, Oyster will pay Affiliate fees as set forth below and in accordance with these Terms:

Referral Fees - subject to paragraph (iii) below, Oyster will pay the Affiliate the referral 10% fees (Referral Fees), in respect of each Referred Customer, calculated by reference to Subscription Fees invoiced and paid by the Referred Customer during the 12 months following the date on which the Referred Customer first qualified as a Referred Customer (Qualified Period),regardless of the number of referrals.

Bonuses - subject to paragraph (iii) below, Oyster will pay the Affiliate the bonus fees as set out in the table below (Bonus Fees):
1. a one-off Bonus Fee of US$250 when the Affiliate’s first Referred Customer enters into their first Service Agreement and pays their first invoice in full; and
2. a one-off Bonus Fee of US$500 when the Affiliate’s second Referred Customer enters into their first Service Agreement and pays their first invoice in full.
Custom Rewards Structure - in Oyster’s sole and exclusive discretion, Oyster may offer and agree to pay the Affiliate referral and bonus fees in a manner or structure different to that set out in paragraphs (i) and (ii), above (Custom Rewards Structure). Oyster may agree to pay the Affiliate under a Custom Rewards Structure by confirmation in writing. If a Custom Rewards Structure applies, paragraphs (i) and (ii), above, will not apply to the relevant Affiliate. Oyster may withdraw the Custom Rewards Stucture at any time and for any or no reason at all, in its sole and exclusive discretion. If the Custom Rewards Structure is withdrawn, paragraphs (i) and (ii), above, will apply to the relevant Affiliate.

6. Referral Fee Limitations.

No referral fee is payable if a Referred Customer has a delinquent, or past due, balance as determined by Oyster in its sole discretion. A Referred Customer having a delinquent, or past due, balance voids Affiliate’s entitlement to any future referral fees. Referral fees will be paid forty-five (45) days in arrears after being earned. If Affiliate believes that any payment is in error, Affiliate will notify Oyster as soon as practicable, but in no event later than 60 days after the payment is made. Oyster may in its sole discretion charge back to Affiliate's account any previously paid referral fees if Oyster determines such fees were improperly paid to Affiliate. Oyster reserves the right to cancel, change, or amend Oyster’s fee structure at any time. Additional information about Oyster’s referral fee amounts may be found on the PartnerStack Program website.

7. Relationship of the Parties.

The parties are independent contractors. Neither Affiliate nor any of Affiliate’s employees or contractors are Oyster employees or entitled to any Oyster benefits. Affiliate has no authority to bind Oyster to any obligation or contract or alter or waive any provision of any Oyster contract, to claim to be an officer or agent of Oyster, to alter Oyster-produced materials, or to use Oyster's name, marks, identity, or confidential information without Oyster’s prior written consent. Each party will comply with all applicable state, federal, and other laws and regulations.

8. Oyster-Customer Relationship.

Oyster has complete discretion as to who it will do business with and on what terms, including whether to accept a prospective Customer as a Customer, which products or Services are offered to a prospective Customer, whether to terminate a Referred Customer, and what to charge a Referred Customer for Services.

9. Approval and Restrictions.

Affiliate will undertake and perform the obligations for the marketing and promotion of Services (“Marketed Services”). All such promotional activity will be subject to the prior approval of both parties, such approval not to be unreasonably withheld. Affiliate, its affiliates, and its employees will not engage in promotion of the Marketed Services without Oyster’s prior written approval in each case.

10. Branding and Licensed Marks.

Any Affiliate use of any Oyster marks, images, or other assets, including but not limited to banners and social media postings, is subject to Oyster’s prior written approval in each instance. Affiliate will seek prior approval from Oyster to use any such Oyster assets and will adhere to the Oyster brand guidelines in each instance. Subject to these Terms, Oyster hereby grants Affiliate a non-exclusive, non-transferable, non-sublicensable license to use its Marks on Affiliate’s website only in connection with the marketing and promotion of Oyster’s Services as contemplated by the Program in accordance with these Terms. “Marks” means Oyster’s name and logo as provided in Oyster’s brand guidelines and/or as made available to Affiliate through the Affiliate’s PartnerStack account. If Oyster, in its sole discretion, changes the appearance and/or style of its Marks, Oyster will provide Affiliate 14 days’ notice within which Affiliate will implement any such changes.

11. Putting a Label on It.

Oyster teams up with other entities in a variety of ways and uses different terminology to reference those relationships. For purposes of the Program, Affiliate acknowledges and agrees that it may refer to itself as an “Oyster Marketing Affiliate” or “Marketing Affiliate,” and Affiliate may not use any other name or label. In no event will Affiliate call or refer to itself as an Oyster “partner” or state anywhere that Affiliate has “partnered with Oyster.” This section controls to the extent there is any conflict with the terms on https://oyster.partnerstack.com/; Any unauthorized reference or characterization as it relates to Affiliate’s relationship with Oyster will be the Affiliate’s sole responsibility, and any claim or loss arising out of that unauthorized use will be subject to the indemnification terms set forth in the Terms. Any unauthorized reference or characterization of the parties' relationship by the Affiliate, in any respect, will result in a forfeiture of any unpaid referral fees. Affiliate understands and acknowledges that such forfeiture represents a reasonable offset for the damage that could ensue for Affiliate’s unauthorized reference or mischaracterization of the parties’ relationship. Oyster reserves any and all additional rights it has, or may have, from such unauthorized reference or characterization.

12. Paid Advertising.

Affiliate will not purchase ads that direct to Affiliate’s site(s) or through an affiliate link that could be considered as competing with Oyster’s own advertising, including, but not limited to, our branded keywords. If running ads, Affiliate must direct the ad to its own website, not to www.oysterhr.com or a standalone landing page. Affiliate is prohibited from bidding on “Oyster” or “OysterHR” and other similar brand variations as a keyword on any channel.

13. Affiliate Link Placements.

Upon Oyster’s request, Affiliate will identify to Oyster each place where Affiliate has used its affiliate link, including links, screenshots, and email sends. With each link, email, or marketing advertisement that Affiliate displays on behalf of Oyster, Affiliate expressly agrees to abide by Oyster’s Website Terms of Use which are in effect at that date and time.

14. Purchasing Oyster’s Services for Affiliate’s Use.

Oyster does not require Affiliate to purchase Oyster’s Services. If, nevertheless, Affiliate decides to do so, Affiliate may not use its own affiliate link to purchase Services.

15. Compliance with Laws.

Affiliate agrees that it will comply with all applicable laws, ordinances, rules, regulations, orders, licensing and registration requirements, or other requirements of any governmental authority with jurisdiction over Affiliate and the Program, including all federal, state, or other applicable laws governing: (i) marketing and affiliate marketing email, communications, and services, such as the CAN-SPAM Act of 2003 and other anti-spam laws; (ii) data privacy and security, such as the General Data Protection Regulation EU 2016/679 (“GDPR”) and other data protection laws; and (iii) anti-bribery and anti-corruption laws, such as the US Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (the “UK Act”), the Singapore Prevention of Corruption Act (“PCA”), the Mexico General Law on the National Anti-Corruption System (“GLAR”), the Canadian Corruption of Foreign Officials Act (“CFPOA”), and all other applicable anti-corruption and anti-bribery laws.

16. Affiliate Rights.

Affiliate hereby acknowledges and agrees that (i) the Marks are owned solely and exclusively by Oyster; (ii) except as set forth herein, Affiliate has no rights, title, or interest in or to the Marks; and (iii) all use of the Marks by Affiliate shall inure to the benefit of Oyster. Affiliate will not apply for registration of the Marks (or any mark confusingly similar thereto) anywhere in the world, and Affiliate will not influence, direct, or encourage any third party to register any of the Marks (or any mark confusingly similar thereto). Affiliate agrees that it will not engage, participate, or otherwise become involved in any activity or course of action that diminishes or tarnishes the image or reputation of the Marks.

17. Use and Display of Marks.

Affiliate acknowledges and agrees that the presentation and image of the Marks should be uniform and consistent with respect to all services, activities, and products associated with the Marks. Accordingly, Affiliate agrees to use the Marks only in the way Oyster specifies from time to time in Oyster’s sole discretion. All usage by Affiliate of the Marks shall include the registered trademark symbol.

18. Ownership.

Each party or its respective licensors and third-party information and content providers retain all rights, title, and interest in and to all of the information, content, data, designs, materials, and all copyrights, patent rights, trademark rights, and other proprietary rights thereto provided by it pursuant to these Terms. Except as expressly provided herein, no other right or license with respect to any copyrights, patent rights, trademark rights, or other proprietary rights is granted under these Terms. All rights not expressly granted hereunder by a party are expressly reserved to such party and its licensors and information and content providers. Upon termination of these Terms, all rights related to the Marks shall terminate and Affiliate will have no claim or right to use of any logos, marketing materials, or other collateral granted under these Terms.

19. Term and Termination.

These Terms will take effect with respect Affiliate’s participation in the Program upon the date on which Affiliate electronically agrees to these Terms in the manner required by Oyster, and, unless terminated earlier in accordance with this Section, will remain in force for 12 months. Following the initial term, these Terms will remain in force with respect to Affiliate from month to month, and either party may terminate Affiliate’s participation in the Program, for any reason or no reason, under these Terms with 30 days’ prior written notice to the other party. Additionally, either party may terminate this Agreement immediately upon written notice to the other party upon: (i) commission of any criminal or fraudulent act by the other party; (ii) the other party’s breach of a material provision of these Terms where that party has received a written notice to cure such breach and has failed to do so within 5 days; (iii) conduct by the other party that maligns the terminating party; (iv) conduct by the other party that is demonstrably and materially injurious, monetarily or otherwise, to the terminating party; (v) immediately by either party if the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof or otherwise takes the benefit of any other statutory provision for the time being in force for the relief of insolvent debtors, or any proceedings are otherwise commenced relating to the insolvency or possible insolvency of the other party or an event occurs or proceeding is taken with respect to the other party which it is subject that has an effect similar to the events mentioned in this Section; or (vi) dissolution of either of the other party’s business. Termination of Affiliate’s participation in the Program, however arising, will not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.

20. Use of Oyster Assets Upon Termination.

Upon termination of Affiliate’s participation in the Program under these Terms, Affiliate will immediately cease using, and will remove from its site, all links to Oyster’s site(s), Oyster Marks, and any references to the Program or Affiliate’s status as an Oyster Affiliate.

21. Payment After Termination:

Subject to and in accordance with applicable law, upon termination of Affiliate’s participation in the Program, no further payments will be paid to Affiliate, except for fees related to then-existing Referred Customers and fees related to referrals Affiliate submits to Oyster prior to the date of termination, provided such referral(s) become Referred Customers within 12 months of the date of termination. Notwithstanding the preceding sentence, if Oyster terminates Affiliate’s Program participation based on actions by Affiliate listed in Section 17, Oyster will make no further payments to Affiliate except pro rata fees based on the Referred Customer’s payroll run prior to the date of termination, and Oyster will be entitled to offset all costs (including, but not limited to, attorney's fees) incurred by Oyster as a result of Affiliate’s actions. Any complaints received due to spam activities may result in the forfeit of referral fees accrued by Affiliate and Affiliate’s removal from the Program.

22. Confidential and Proprietary Information.

Each party may disclose confidential information to the other, including, but not limited to, information that is considered to be trade secrets and/or proprietary. The confidential information subject to this Section includes, but is not limited to: customer and prospective customer names, addresses, and identifying information; strategy; business and marketing plans and objectives; prices charged or proposed to be charged to customers; cost information; vendor or supplier information; employee names, compensation, benefits and related data; technical data; forms of agreement and other documents; training programs and materials and information; and banking, financial and accounting information. Except as agreed or required by law, each party will hold in confidence and not disclose the other party’s confidential information to anyone other than a party’s own employees, agents, or contractors who have agreed to preserve the confidentiality. If required to disclose information that could qualify as confidential information, the disclosing party will notify the non-disclosing party as to the potential disclosure, to the extent permitted by applicable law, and provide the non-disclosing party an opportunity to object to the disclosure.

23. Code of Conduct.

In support of Oyster’s ongoing commitment to high standards of service, product quality, and integrity, Affiliate represents and warrants that it abides and will continue to abide by the following minimum standards:

Forced and Child Labor. Vendor will not use forced, coerced, bonded, indentured or involuntary labor, nor will Vendor employ any person aged below the applicable local legal minimum employment age.
Exploitation. Oyster has a “zero tolerance” policy with respect to any exploitation of persons, whatever the form, including sexual exploitation, slavery, coerced labor and the like. Affiliate will support this policy and ensure that its business practices do not compromise this policy in any manner.
Health and Safety. Affiliate will maintain health and safety standards designed to avoid work-related injury and illness, and to promote the general health and wellbeing of employees.
Employment Practices. Affiliate will comply with all applicable employment, labor, and other laws regulating the employer-employee relationship and the workplace. Affiliate will foster a work environment in which all individuals are treated with respect and dignity in a business-like atmosphere that promotes equal employment opportunities and prohibits discriminatory practices. Affiliate will ensure that none of its employees will be subjected to any physical, sexual, psychological or verbal harassment or abuse in the workplace, nor shall there be any threat of same. Affiliate will pay each employee at least the applicable wage, overtime, and benefits standards required by law. Affiliate will granted its employees their allotted leave and sick leave without any repercussions (or threats of same).
Discrimination & Human Rights. Affiliate will not discriminate on the basis of race, national or ethnic origin, color, religion, age, sex (including pregnancy or childbirth), sexual orientation, gender characteristics, identity or expression, marital status, family status, physical or mental disability or a conviction for which a pardon has been granted, (all of which are subject to any exceptions provided by law) or any other status protected by law. Affiliate will respect its employees’ rights to choose whether to be represented by third parties and whether to bargain collectively pursuant to applicable laws. Harassment, intimidation, penalties, interference or reprisals will not be imposed (or threatened) upon employees in relation to such activities.
Ethics. Affiliate commits to conducting its business in an ethical manner. All forms of corruption, extortion, fraud and bribery are prohibited. Affiliate will disclose to Oyster any situation of a potential conflict of interest. Affiliate will also disclose to Oyster information about any of Oyster’s employees having a material interest of any kind in Affiliate’s business or any other kind of economic ties with Affiliate.
Environment. Affiliate will seek to reduce any adverse impact of its operations upon the environment and, where appropriate, demonstrate and promote environmental stewardship. Innovative developments in products and services that offer environmental and social benefits are encouraged.
Documentation and Inspection. Affiliate will maintain records of all relevant documentation necessary to demonstrate compliance with this Section 21 and related laws and regulations. Affiliate will comply with any Oyster request that it provide all necessary documentation available to Oyster’s designated auditor as evidence of compliance with its obligations hereunder. Affiliate will allow Oyster reasonable access to Affiliate’s premises to review and audit, among others, Affiliate’s books for Affiliate’s security procedures and Affiliate’s environmental performance. Affiliate’s compliance with this Section is a material term of these Terms and Program participation, such that Oyster is entitled to any and all remedies set forth in these Terms, including but not limited to the withholding of referral fees where there has been a possible breach of this Section.

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24. Warranty.

Affiliate and Oyster each represents and warrants to the other that: (i) each has the full corporate right, power, and authority to agree to these Terms, to grant the subscriptions granted, and to perform the acts required of it hereunder; (ii) the agreement to these Terms by each party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (iii) when Affiliate indicates its acceptance of these Terms electronically in the manner required by Oyster, these Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (iv) it will comply with all laws, rules, and regulations in its performance in the Program under these Terms. Each party acknowledges that the other party makes no representations, warranties, or agreements which are not expressly provided for in these Terms.

25. Indemnity.

Each party will indemnify, hold harmless, and defend the other party (and its affiliates, directors, officers, employees, and agents) from and against (i) any and all third-party claims related to or arising out of the indemnifying party’s performance under these Terms, and (ii) any and all other claims for damages, injuries, attorneys’ fees, and other expenses caused by the indemnifying party’s gross negligence or willful misconduct. The indemnity includes, but is not limited to, breach of confidentiality obligations, infringement of intellectual property rights, and violations of applicable law or regulation. The indemnifying party is not required to indemnify, however, to the extent the indemnity claim arises from any fault of the indemnified party or of a third party under the control of the indemnified party.

26. Disclaimer.

Except as otherwise expressly stated herein, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.

27. Limitation of Liability.

Neither party will be liable to the other for special, indirect, incidental, punitive, or exemplary losses, damages, or expenses including, but not limited to, claims for lost business profits or revenue, loss, interruption or unavailability of data, interruption of business operations, or the cost of the procurement of substitute goods or services. Notwithstanding anything stated in these Terms, in no event will either party’s aggregate liability under these Terms exceed the total fees paid by Oyster to Affiliate hereunder. This limitation of liability will not apply where, under the applicable law, statutory damages exceed the limitation of liability. In that instance, the indemnifying party will indemnify the indemnified party for any and all losses exceeding this limitation of liability section.

28. Assignment.

Affiliate may not assign its rights or delegate its obligations under these Terms. These Terms are intended to mutually benefit the parties and do not create any rights in any third parties.

29. Notices.

All notices pursuant to these Terms must be in writing and may be provided electronically. Notice may be provided to Oyster at: Oyster HR, Inc., 307 W. Tremont Ave. Suite 200 Charlotte, NC 28203 USA, with a copy to Legal@OysterHR.com. Notice to Affiliate may be provided to Affiliate at the address provided to Oyster as part of Affiliate’s Program participation application.

30. Dispute Resolution.

The parties will act in good faith to promptly resolve any dispute arising out of or relating to these Terms by discussion between the relevant project managers or day to day representatives for each party. In the event the dispute is unable to be resolved within a reasonable timeframe, the dispute will be escalated to negotiation between the parties’ respective senior executives who have authority to settle the controversy. All reasonable requests for information made by one party to the other will be honored in a timely fashion. In the event the parties are unable to resolve a dispute, controversy, or claim under the internal escalation process described above, then the parties will arbitrate in a final, binding arbitration in New York in the English language, before a single arbitrator (under the ICDR’s International Expedited Procedures, then in effect. The parties agree that the arbitrator is not empowered to award damages in excess of the limitations of liability specified in the Terms. Judgement upon the award rendered by the arbitrator, including equitable relief, may be entered by any court having jurisdiction thereof. Either party may give written notice to the other party of its intention to arbitrate in accordance with these terms. The parties acknowledge they are waiving their right to a jury trial. The parties understand and acknowledge this waiver and agree not to challenge its applicability. Any challenge will result in the party paying the costs of defending the enforceability of this waiver, even if a court of competent jurisdiction determines mandatory arbitration does not apply.

31. Governing Law.

New York, USA law governs these Terms. If any part of these Terms is found to be invalid or unenforceable, the remainder of these Terms will remain in full force and effect as if the unenforceable part did not exist.

32. No Partnership or Joint Venture.

Nothing in these Terms is intended to, or will be deemed to, establish any partnership or joint venture between the parties, make either party the agent of the other party, or authorize either party to make or enter into any commitments for or on behalf of the other party. These Terms are made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by or against, anyone else.

33. No Modification or Waiver of Terms by Conduct.

These Terms cannot be modified or waived by the parties’ conduct.

34. Consent to Communications.

As an Affiliate, You consent to receive communications, such as product updates, explanations as to Our Services, or any other communication in furtherance of Our business. You may unsubsubscribe from these communications at any time.

35. Entire Agreement.

These Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements, and understandings between them, whether written or oral, relating to its subject matter.