Partner Terms

PARTNER TERMS

Published December 6, 2024

1. Introduction.
2. Marketing.
3. Intellectual Property.
4. Collection and Use of Information.
5. Confidentiality.
6. Reporting.
7. Fees.
8. Term, Termination, and Suspension.
9. Acknowledgements.
10. Mutual Representations and Warranties.
11. Restrictions.
12. Indemnification.
13. Limitation of Liability.
14. General.
15. Definitions.

1. Introduction.

1.1. The Partner Terms (“Partner Terms”) set forth the Parties rights and responsibilities as part of Oyster’s Partner Program (“Program”) made available by Oyster HR, Inc., a public benefit corporation organized under the laws of Delaware.

1.2. Oyster operates a global employment human resource consultancy Platform through which it makes Services available focused on making it easier for companies anywhere to engage talent everywhere.

1.3. You are a service provider to clients and prospective clients of Oyster.

1.4.You seek access to the Program subject to Your agreement to, and compliance with, the Partner Terms and the applicable Statement of Work, (collectively, “ Partner Agreement”).

1.5. To access the Program, You must agree to these Partner Terms and the Partner Data Processing Addendum available at https://legal.oysterhr.com/partner-program/sp-dpa.

1.6. Any access to, or use of, the Oyster Platform is subject to the Oyster Terms and Conditions.

1.7. Nothing contained in these Partner Terms will prohibit Oyster from marketing, selling, introducing itself, or the Platform and Services to new or prospective clients.

1.8. Accordingly, and in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties mutually agree to abide by, and perform in accordance with, the Partner Agreement.

2. Marketing.

2.1. General Promotion. The Parties agree to promote each other’s Services generally (“General Promotion”) and as further set out in any applicable SOW. Neither Party will undertake any General Promotion without the prior approval of the other Party (such approval not to be unreasonably withheld) for the General Promotion activities. The Parties further agree to:

(a) exercise their best efforts to market and promote the Platform and Services to their clients, and, as such, introduce and qualify new business opportunities for the Parties’ in accordance with a Party’s policies and procedures for qualification; and

(b) not market a Party’s product or services to companies that are competitive to a Party, as determined by a Party in its sole discretion.

2.2. Provision of Materials. Each Party agrees to provide the other Party all Materials necessary to allow the requesting Party to familiarize themselves with the other Party’s Services and to undertake any promotional or marketing activities (including General Promotion).

2.3. Sharing of Information. Subject always to this Section and on condition that the sharing of such information by a Party does not breach that Party’s obligations at law or to any third party, the Parties agree to cooperate with one another by sharing information or other competitive intelligence with a Party solely for the purpose of performing its obligations pursuant to this Partner Agreement as set out in the SOW.

2.4. Representations as to Materials. Each Party represents and warrants to the other that:

(a) their Materials are accurate, complete, and not misleading;

(b) their Materials do not infringe on any third-party rights, including Intellectual Property Rights; and

(c) to the extent it becomes aware that any of the representations set out at sub-paragraphs (1) and (2) above have become untrue, the Party will promptly notify the other Party of same and provide updated Materials which comply with sub-paragraphs (1) and (2) above.

2.5. Consultation. The Parties will consult with each other on at least a quarterly basis to review the effectiveness of any marketing and promotional activities and to discuss, where applicable, other opportunities that might be available for the mutual benefit of the Parties.

2.6. Prohibited Activities. Neither Party will, and is not authorized to:

(a) make any false or misleading representations relating to the Services offered by the other Party;

(b) create or publish any materials or assets referring to the other Party’s Services without the prior written approval of the other Party;

(c) make any statements regarding a reduction in the cost or pricing of the other Party’s Services without the prior written authorisation of the other Party; and

(d) bind a Party to a contractual commitment, or act as an agent of a Party in any respect.

2.7. Public Statements. Neither Party nor any of its affiliates or representatives will (orally or in writing) publicly disclose, issue any press release, or make any other public statement, or otherwise communicate with the media, concerning the existence of this Partner Agreement or the subject matter hereof, without the prior written approval of the other Party which will not be unreasonably withheld, conditioned, or delayed, except if and to the extent that such Party based on the reasonable advice of counsel is required to make any public disclosure or filing regarding the subject matter of this Partner Agreement (i) by applicable law or regulation; (ii) pursuant to any rules or regulations of any securities exchange of which the securities of such Party or any of its affiliates are listed or traded; or (iii) in connection with enforcing its rights under this Partner Agreement. In each case pursuant to clauses (i) or (ii) of this section, the Party making any disclosure will consult with the other Party regarding the substance of the disclosure and provide the other Party 7 days to review and comment on the content of the disclosure before its publication or filing, where legally permissible. Each Party will be liable for any failure of its affiliates or representatives to comply with the restrictions set forth in this section.

3. Intellectual Property.

3.1. Marks - License. Subject to all the terms and conditions of this Partner Agreement, the Parties, each a Licensor, hereby grant the other Party, a Licensee, a worldwide, royalty free, non-exclusive, non-transferable, non-sublicensable license to use its Marks in connection with any agreed General Promotion and for no other purpose.

3.2. Marks - Usage. Both Parties hereby acknowledge and agree that:

(a) the Marks are owned solely and exclusively by the Licensor;

(b) except as set forth herein, a Licensee has no rights, title, or interest in or to the Marks; and

(c) all use of the Licensor’s Marks by Licensee shall inure to the benefit of Licensor. Licensee agrees not to apply for registration of the other Party’s Marks (or any Mark confusingly similar thereto) anywhere in the world.

Licensee agrees that it shall not engage, participate, or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of the Licensor’s Marks. Licensee acknowledges and agrees that the presentation and image of the Licensor’s Marks should be uniform and consistent with respect to all services, activities, and products associated with the Licensor’s Marks. Accordingly, Licensee agrees to use the Licensor’s Marks solely in the manner in which Licensor specifies from time to time in its sole discretion. All usage by Licensee of the Licensor’s Marks shall include the trademark or registered trademark symbol, as applicable. A Licensor may provide ‘brand guidelines’ or other similar documentation covering the acceptable use of its Marks. If such brand guidelines are provided, Licensee will comply with the guidelines in all its uses of the Licensor’s Marks. If a Licensor, in its sole discretion from time to time, changes the appearance and/or style of its Marks (or the manner in which the Marks are to be displayed), the Licensee shall have 21 days to implement any such changes after being provided with written notice of same.

3.3. 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 other Intellectual Property Rights, and any other proprietary rights thereto provided by it pursuant to this Partner Agreement. Except as expressly provided herein, no other right or license with respect to any and all Intellectual Property Rights, or any other proprietary rights is granted under this Partner Agreement. 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 this Partner Agreement, all rights related to the Marks will terminate and You will have no claim or right to use any logos, marketing materials, or other collateral granted under this Partner Agreement. For avoidance of doubt, the Parties cannot use, or a claim a right to use, any information, content, data, designs, materials, or other Intellectual Property Rights and other proprietary rights not expressly authorized in this Partner Agreement or approved by either Party, with such approval being granted in advance of such use and in writing.

4. Collection and Use of Information.

4.1. Each Party represents, covenants, and warrants to the other, prior to transmission of any Personal Data, that:

(a) the Party transmitting such Personal Data shall have a legal basis and right under under Applicable Data Protection Laws (as defined in the Partner Data Processing Addendum) to do so, which may include obtaining any and all required consents, opt-ins, and/or providing notices, as applicable, so such Personal Data may be transmitted to and used by the receiving party;

(b) the collection and sharing of all Personal Data under this Partner Agreement, prior to transmission, complies with all applicable laws and regulations, including laws pertaining to data privacy (such as the GDPR where applicable), marketing, information security, opt-out requirements, anti-spam and anti-discrimination; and

(c) they will notify the other Party as soon as possible in the event that any of the foregoing representations, warranties, or covenants are, or are suspected to be, untrue.

4.2. Information regarding Potential Customers provided by the other Party shall only be used by a Party to offer Services to Potential Customers. All other uses (including undertaking direct or targeted marketing of any other services) are prohibited unless the express written consent of a Potential Customer has been obtained to allow for such other activities.

5. Confidentiality.

5.1. Obligation of Confidentiality. Each Party agrees to keep the other Party’s Confidential Information strictly confidential and to exercise reasonable care to protect the confidentiality of each other’s Confidential Information (and in any case, no less than the same level of care that the relevant Party would use to protect its own Confidential Information). Confidential Information of a Party may only be used by the other Party to strictly perform the terms of this Partner Agreement. Neither Party will disclose the other’s Confidential Information except as permitted by Section 5.2, below. For the avoidance of doubt, each Party agrees that they are not permitted to, and will not, use the other Party’s Confidential Information to compete with, harm, or solicit customers from, the other Party, or otherwise for its own business advantage.

5.2. Disclosure of Confidential Information. A Party may only disclose the other Party’s Confidential Information:

(a) where such disclosure is expressly permitted by the other Party in writing;

(b) to its own employees, consultants, agent, and/or advisors as required to perform its obligations under this Partner Agreement; or

(c) as required by Law (“Compelled Disclosure”), on the basis that (i) the Party uses commercially reasonable endeavors to limit such disclosure and seek confidential treatment for any such Compelled Disclosure (ii) to the extent it is legal, provide prompt notice to the other Party of such Compelled Disclosure and (iii) provide reasonable assistance to the other Party should they wish to contest any Compelled Disclosure.

5.3. Unauthorized Disclosure. Each Party will immediately notify the other Party of any loss or misuse of Confidential Information, or other breaches of the confidentiality section of this Partner Agreement. Each Party will provide reasonable cooperation to the other to enforce any rights related to any unauthorized disclosure and use their best efforts to contain and remedy any unauthorized disclosure. Each Party agrees that monetary damages might not be a sufficient remedy for any breach or threatened breach of the confidentiality provisions of this Partner Agreement. Either Party is entitled to seek injunctive relief or specific performance to enforce a breach of the confidentiality provision of this Partner Agreement without any requirement to show monetary damages.

5.4. Return and Destruction. Upon request, a Party will return all documents in its possession, custody, or control containing the other Party’s Confidential Information and provide certification that all electronic copies have been destroyed to the extent technically practicable.

6. Reporting.

6.1. Upon request, Oyster will provide You with a written sales report of the active End Customers in Your Territory for the immediately preceding Reporting Period, together with the calculation of any Fees payable to You in accordance with the applicable SOW.

6.2. If you hold the direct contractual relationship with the End Customer, within 10 days of the end of the immediately preceding Reporting Period You will provide Oyster with a report which includes, at a minimum:

(a) a list of the End Customers (new and existing) who purchased access to the Platform or Services through You;

(b) the number and type of purchases made by these End Customers;

(d) the estimated Fees payable to Oyster, calculated in accordance with the applicable SOW.

6.3. If Oyster disputes any part of Your report:

(a) Oyster must notify You within 30 days of receiving the report with an articulation as to the basis for dispute.

(b) You will address Oyster's dispute within 14 days from receipt to enable a prompt and amicable resolution.

6.4. If the dispute cannot be resolved within 30 days, the dispute resolution section of the Partner Terms will control.

7. Fees.

7.1. Invoicing and Payment.

(a) Fees owed under the Partner Agreement will be specified in the applicable SOW.

(b) Oyster will issue invoices for Fees owed by the Partner.

(d) Invoices must be paid:

(i) as set out in an applicable SOW or invoice; or

(ii) if no due date is specified, invoices must be paid within 30 days of issuance.

unless Oyster has notified You of a dispute regarding Your alleged entitlement to such Fees.

(e) Fees are exclusive of Taxes which become due as a result of Your purchase, use of the Platform and/or receipt of Services. If You are required by law to withhold any amounts from payments due to Oyster, You agree to increase the payment amount so that the net amount received by Oyster equals the full invoiced amount and provide Oyster with documentation evidencing the withheld and paid amounts.

(f) If You wish to dispute any part of Oyster’s invoice, You must do so in accordance with the Platform Terms.

7.2. Late Payments. If You fail to pay any Fees, charges, or other payments within the time required under this Partner Agreement, Oyster may:

(a) charge interest on the overdue amount as specified in the Platform Terms; and

(b) charge You for all costs and expenses incurred by Oyster in recovering Oyster’s outstanding Fees from You, including legal fees (on an indemnity basis), which You will pay on demand; and

8. Term, Termination, and Suspension.

8.1. Term. This Partner Agreement is binding upon signing and will continue for the Initial Term, commencing on the Effective Date, unless terminated earlier.

8.2. Renewal. The term of this Partner Agreement will automatically renew for subsequent annual terms (each a “Renewal Term”) unless either party notifies the other party of its intent not to renew this Partner Agreement at least sixty (60) days prior to the expiration date of the Initial Term or a Renewal Term. The Initial Term and Renewal Term(s) will collectively be defined as the “Term” of this Partner Agreement.

8.3. Termination for Breach. If either party commits a material breach of these Partner Terms, and such breach is uncured for thirty (30) days following receipt of written notice specifying the breach, the noticing party may terminate this Partner Agreement by providing written notice to the breaching party.

8.4. Termination for Cause. Oyster may terminate this Partner Agreement at any time and with immediate effect if You:

(a) fail to make payment of any amounts due under this Agreement within 5 days of receiving a notice from Oyster to make payment of the outstanding amounts;

(b) cease to carry on any part of Your business;

(d) breach any warranty or representation under this Partner Agreement;

(e) fails to achieve any specific target, Deliverable or purpose set out in the applicable SOW; or

(f) breach the Partner Data Processing Addendum.

8.5. Termination for Convenience. Either party may terminate this Partner Agreement for convenience for any reason upon ninety (90) days’ prior written notice.

8.6. Wind Down Period. In the event of termination, You may continue to market the Platform and Services to prospective clients up to the effective date of termination or expiration of these Partner Terms (“Wind Down Period”), and receive Fees, if applicable, for qualified, accepted referrals during the Wind Down Period. Any Fees paid after expiration or termination of these Partner Terms remain subject to compliance with the Partner Agreement, inclusive of the Partner Terms and Platform Terms as determined by Oyster in its sole discretion.

8.7. Effect of Termination.

(a) Upon termination, You will:

(i) where required, provide all assistance reasonably required by Oyster to transition management of all End Customers to Oyster in a manner that minimizes any disruption of Services or access to the Platform;

(ii) immediately pay all money due and payable by You to Oyster under this Partner Agreement; and

(iii) if applicable, continue to provide the End Customer Your support for the remainder of each End Customer’s Commission Period.

(a) Any trailing Fees payable pursuant to the Partner Terms as set forth in the SOW will be paid for the remainder of the applicable Fee Period unless the Fees or are no longer payable in accordance with this Partner Agreement.

(b) Termination will be subject to payment by You of all amounts owed to Oyster up to the latter of the (i) effective date of termination or (ii) expiration or the Wind Down Period.

(c) Any provision of this Partner Agreement that expressly or by implication intended to survive the termination of this Partner Agreement shall remain in full force and effect. For the avoidance of doubt, surviving obligations include the sections related to: Intellectual Property; Confidentiality; Term, Termination and Suspension; Indemnification; Limitation of Liability; and General.

8.8. Post-Wind Down Period. Once all End Customers have been transitioned to Oyster then:

(a) You will cease using any of Oyster’s Intellectual Property Rights;

(b) Each Party will return to the other Party, or confirm in writing the destruction of, the other Party’s Confidential Information or property of the other Party; provided, however, that neither Party has to delete or erase any Confidential Information that has been saved to a back-up file or electronic archiving system in accordance with such Party’s ordinary back-up or document retention policies or that is required for litigation, regulatory, legal or corporate records retention reasons;

(c) Any accrued rights or liabilities of either party or any provision of the Partner Agreement which is expressly or by implication intended to come into or continue in force on or after such termination will not be affected; and

(d) Any licenses and accompanying rights granted under this Partner Agreement will immediately and automatically be extinguished.

9. Acknowledgements.

9.1. General acknowledgements. You must:

(a) accurately represent the Platform capabilities;

(b) refrain from marketing, promoting and supplying the Platform or engaging in any conduct that is misleading or deceptive or likely to mislead or deceive an End Customer or any potential End Customer.

(c) Maintain strict confidentiality in Your access to our Platform, which is non-exclusive and terminable in accordance with the Platform Terms, and the information provided therein refraining from sharing with any third-party, inclusive of any Direct Competitors of Oyster, other than a Potential Customer who must create an account on the Platform in order for any disclosure to be authorized; and

(d) Work in good faith to establish sales methodologies, collateral, and messaging, and a sales cycle for opportunity qualification. All messaging and collateral will be subject to Oyster’s review and approval which will not be unreasonably withheld.

9.2. Oyster has Direct Contractual Relationship with End Customer. When Oyster maintains a direct contractual relationship with the End Customer:

(a) All contracts and commitments for accessing the Platform and Services resulting from any referral will be directly between Oyster and the End Customer.

(b) Oyster is responsible for receiving and responding to all inquiries, support, and maintenance requests from End Customers relating to the Platform in accordance with the Platform Terms, which will be provided pursuant to the Partner Agreement, unless specified otherwise in an applicable SOW.

(c) An engagement via the Oyster platform may result in the creation of Resulting IP. The Parties agree that the End Customer should own all Resulting IP and any related Resulting IP Rights. Oyster is responsible for ensuring a complete chain of title in the Resulting IP Rights to ensure the End Customer obtains ownership of the same. You hereby waive any and all right in and to any such Resulting IP or related Resulting IP Rights.

(d) Oyster is solely responsible for setting fees, invoicing, and collecting payments from the End Customer for accessing the Platform and Services. No additional invoicing or fee recovery actions are required from You unless specified in an applicable SOW.

(e) No Fees are owed to You until the relevant fees have been received by Oyster from the End Customer for accessing the Platform and Services, whichever is applicable.

9.3. Oyster does not have a Direct Contractual Relationship with End Customer. When Oyster does not maintain a direct contractual relationship with the End Customer:

(a) You must:

(i) incorporate the Platform Terms into Your agreements with End Customers;

(ii) be responsible for incorporating any changes made by Oyster to the Platform Terms are incorporated into its agreements with End Customers;

(iii) accept all liability and responsibility for any inconsistency with Your agreement with an End Customer and the Platform Terms;

(iv) comply with all applicable laws when providing Your services, which may include allowing access to the Platform and Services to End Customers;

(v) monitor, and assist Oyster to monitor, and enforce all End Customer compliance with the provisions of the Platform Terms;

(vi) promptly notify Oyster of any actual or suspected breach by an End Customer of the Platform Terms; and

(vii) provide all reasonable assistance requested by Oyster in respect of such breach.

(b) You are responsible for receiving and responding to all inquiries, support, and maintenance requests from Your End Customers relating to the Platform in accordance with the Platform Terms, which will be provided pursuant to the Partner Agreement, unless specified otherwise in an applicable SOW.

(c) An End Customer is a third-party beneficiary of this Partner Agreement and, as such, Oyster is entitled to recover such fees payable by You from the End Customer.

(d) Unless otherwise stated in an Appendix or applicable SOW, You are responsible for invoicing an End Customer for the Services and recovering such fees and charges from the End Customer directly.

(e) An engagement via the Oyster platform may result in the creation of Resulting IP. The Parties agree that the End Customer should own all Resulting IP and any related Resulting IP Rights. You are solely responsible for ensuring a complete chain of title in the Resulting IP Rights to ensure that the End Customer obtains ownership of the same. To the extent that Oyster (by contract or operation of law) has or receives any Resulting IP Rights, Oyster hereby permanently and irrevocably transfers and assigns the same to You.

10. Mutual Representations and Warranties.

10.1 General Representations and Warranties. Each of Oyster and Partner represent and warrant that:

(a) they have the full corporate right, power and authority to enter into this Agreement and perform their obligations under it;

(b) the execution of this Partner Agreement and performance of its obligations under this Partner Agreement do not and will not violate any agreement or laws which the Party is otherwise bound to observe;

(c) when executed, this Partner Agreement will constitute a legal, valid and binding obligation of such Party, enforceable according to its terms;

(d) it will comply with all laws, rules and regulations applicable to them;

(e) it will not engage in any deceptive, misleading, illegal or unethical practices;

(f) it will promptly notify a Party of any material changes or developments affecting a Party’s legal status or performance of their obligations under the Partner Terms;

(g) it will not make any representations or warranties regarding the other Party’s services, except as approved expressly by the other Party; and

(h) it will conduct its business and provide its services in a professional manner that at all times reflects favorably on the good name, goodwill and reputation of the other Party.

10.2. Code of Conduct. Partner agrees and acknowledges that it has (i) read and understood Oyster’s Code of Conduct; and (ii) will abide by the Code of Conduct at all applicable times. Upon request, Partner will cooperate with any information requests to ensure cooperation with the Code of Conduct, with any disclosed information subject to the Confidentiality provisions, so Oyster can certify compliance with its Code of Conduct, including but not limited to ensuring Your performance is consistent with Our public benefit charter.

10.3. Disclaimer. EXCEPT AS EXPRESSLY STATED HEREIN, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED BY LAW OR STATUTE, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THIS PARTNER AGREEMENT. NEITHER PARTY MAKES ANY WARRANTY THAT ANY PARTICULAR RESULTS WILL BE DERIVED FROM THE PARTY’S SERVICES OR ANY ADDITIONAL PROMOTION, AS THE CASE MAY BE.

11. Restrictions.

You will not:

11.1. make any representations, commitments, warranties or guarantees on behalf of Oyster or in any way bind or attempt to bind Oyster contractually or otherwise with any Customer;

11.2. make any statement or representation or do anything that may be harmful to the reputation or interests of Oyster;

11.3. market, supply or distribute the Platform and Services:

(a) outside the Territory;

(b) for any purpose other than the purposes contemplated by this Partner Agreement without the prior consent of Oyster; or

(c) in any way which may directly or indirectly damage the reputation, good name, goodwill of Oyster or other rights and interests associated with the Platform;

11.4. supply the Platform to a third-party if You are aware, or should reasonably be aware, that the third-party is intending to re-supply or on-sell the Product to other customers or third parties outside the Territory;

11.5. remove or modify any of Oyster’s trademarks or labels from or on the Platform or any marketing and promotional material provided by Oyster;

11.6. engage in any conduct that is unlawful, immoral, harmful, threatening, abusive, scandalous or in any way deemed to be unreasonable by Oyster;

11.7. use, reproduce, distribute, disclose, or otherwise exploit any Resulting IP in any form or by any means without the written consent of the respective End Customer

11.8. disclose any source code within the Platform to any third-party without the prior written approval of Oyster;

11.9. reverse assemble, reverse compile or create derivative works based on the whole or any part of the Platform;

11.10. modify the whole or any part of the software or combine or incorporate the whole or any part of the Platform;

11.11. re-create the look-and-feel nor any similar functionality to the Platform; or

11.12. copy the whole or any part of the Platform.

Nothing contained in these Partner Terms will prohibit Oyster from marketing, selling, introducing itself, or the Platform and Services to new or prospective clients, nor from appointing others to do so.

12. Indemnification.

12.1. Partner’s Indemnification. You will indemnify, defend and hold harmless Oyster and its affiliates, directors, officers, shareholders, agents, employees and assigns from any damage, loss, liability, costs and expenses of any kind (including reasonable attorneys’ fees) relating to or arising out of a claim asserted or threatened by a third-party related to:

(a) any claim that Your Materials infringe any rights of a third party (including any Intellectual Property Rights), any laws, or otherwise being slanderous, libelous or defamatory;

(b) any claim related to Your failure to properly ensure chain of title for Resulting IP and related Resulting IP Rights in accordance with the Partner Appendix.;

(c) Partner’s Services, including (without limitation) any dissatisfaction with the performance or Partner’s Services, refunds or disputes;

(d) the conduct of Your clients and customers’ access, including all End Customers, of the Platform, if applicable;

(e) a breach of Your obligations under the Partner Terms; and

(f) any claim arising out of its performance, or failure to perform, in accordance with any additional, applicable obligations set forth in an Appendix.

12.2. Oyster’s Indemnification. Oyster shall indemnify, defend and hold harmless Partner and its affiliates, directors, officers, shareholders, agents, employees and assigns from all Claims:

(a) arising out of or in connection with any claim that its Materials infringe any rights of a third party (including any Intellectual Property Rights), any laws, or otherwise being slanderous, libelous or defamatory; and

(b) arising out of or in connection with Oyster’s Services, including (without limitation) any dissatisfaction with the performance of Oyster’s Services, refunds or disputes.

12.3. Mutual Indemnification. Each Party shall indemnify, defend and hold harmless the other Party and its affiliates, directors, officers, shareholders, agents, employees, and assigns from all Claims arising out of or in connection with a breach of its own representations, warranties or obligations as set out in this Partner Agreement.

12.4. Indemnification Process. The indemnifying Party will give the indemnified Party prompt written notice of any threat, warning, or notice of any such claim or action. The indemnifying Party will have the right to conduct the defense of any such claim or action and, consistent with its rights in this section, inclusive of all negotiations for its settlement; provided, however, the indemnified Party may participate in such defense or negotiations to protect its interests, at its expense using counsel of its choice, and indemnifying Party will provide reasonable assistance to the Indemnitees and their counsel.

13. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUES, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS PARTNER AGREEMENT, EVEN IF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET OUT IN SECTIONS 9.1 AND 9.2 ABOVE, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS PARTNER AGREEMENT EXCEED THE FEES PAID PURSUANT TO THE PARTNER AGREEMENT. EXCLUSION. THE LIABILITY LIMIT WILL NOT APPLY TO ANY CLAIMS OR LIABILITIES ARISING OUT OF A BREACH OF A PARTY’S CONFIDENTIALITY, INTELLECTUAL PROPERTY, OR PRIVACY OBLIGATIONS, INCLUSIVE OF ANY BREACH OF APPLICABLE DATA PRIVACY LAW. FURTHER, THE LIABILITY LIMIT WILL NOT APPLY TO ANY INDEMNITY CLAIMS ARISING OUT OF THIS PARTNER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY CLAIMS ARISING OUT OF AN END CUSTOMERS’ BREACH OF THE PLATFORM TERMS WHERE SUCH BREACH ARISES OUT OF YOUR FAILURE TO COMPLY WITH THE TERMS OF THE PARTNER AGREEMENT.

13.1. EXCLUSION. THE LIABILITY LIMIT WILL NOT APPLY TO ANY CLAIMS OR LIABILITIES ARISING OUT OF A BREACH OF A PARTY’S CONFIDENTIALITY, INTELLECTUAL PROPERTY, OR PRIVACY OBLIGATIONS, INCLUSIVE OF ANY BREACH OF APPLICABLE DATA PRIVACY LAW. FURTHER, THE LIABILITY LIMIT WILL NOT APPLY TO ANY INDEMNITY CLAIMS ARISING OUT OF THIS PARTNER AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY CLAIMS ARISING OUT OF AN END CUSTOMERS’ BREACH OF THE PLATFORM TERMS WHERE SUCH BREACH ARISES OUT OF YOUR FAILURE TO COMPLY WITH THE TERMS OF THE PARTNER AGREEMENT.

14. General.

14.1. Assignment. You may not assign or transfer the whole or any part of this Partner Agreement without Oyster’s written consent. Oyster may assign its rights and obligations under the Partner Agreement with 30 days’ notice to You.

14.2. Compliance, Security, and Data Protection. You will ensure that Your performance complies with all applicable laws, regulations, industry standards, and the Partner Data Processing Addendum; implement and maintain appropriate security measures to protect the confidentiality, integrity, and availability of End Customer data in compliance with any applicable data protection and privacy laws; and obtain all necessary legal authorizations, such as being an agent, to act on behalf of any and all End Customers. Upon request, You will produce documentary evidence demonstrating Your compliance with the Partner Agreement.

14.3. Dispute Resolution. The Parties will attempt in good faith to promptly resolve any dispute arising out of or relating to this Partner Agreement 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 no later than forty-five (45) days, 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 the dispute by giving written notice to the other party of its intention to arbitrate. It is agreed that final and binding arbitration will take place in New York, in the English language, before a single arbitrator (under the ICDR’s International Expedited Procedures, then in effect).

14.4. Governing Law. New York law governs this Partner Agreement. If any part of this Partner Agreement is found to be invalid or unenforceable, the remainder of this Partner Agreement will remain in full force and effect as if the unenforceable part did not exist.

14.5. Relationship of the Parties. The Parties are independent contractors. Nothing in this Partner Agreement should be construed as constituting a partnership or joint venture between the Parties. Neither Party has the authority to bind the other to any obligation or contract or alter or waive any provision of any contract, claim to be an officer or agent of the other Party, or to use the other Party’s name, Marks, identity, or Confidential Information without the other Party’s prior written consent or in a manner inconsistent with this Partner Agreement. Any financial outcomes or obligations of a Party are the sole and exclusive responsibility of that Party.

14.6. Waiver. The failure by a Party to take any action or exercise one of its rights shall not constitute a waiver of that right or any default of the other Party giving rise to that right or remedy. In addition, the waiver of a, default, right or remedy on one occasion shall not be interpreted as an ongoing waiver or a waiver of any future default, right or remedy. Waivers are only effective when provided in writing and on the terms set out in any such written waiver.

14.7. Modifications. The Partner Agreement can be modified only in writing and signed by the Parties.

14.8. Notice. All notices under this Partner Agreement must be in writing and may be provided electronically to the delivery address set out in the SOW or on the first page of this Partner Agreement.

14.9. Entire Agreement. This Partner Agreement, inclusive of all documents referenced herein including but not limited to the SOW and any applicable Appendices, are the entire agreement between Oyster and Partner pertaining to the subject matter set forth herein and supersedes all prior agreements or understandings as to the same subject matter.

15. Definitions.

15.1. Capitalized terms in these Partner Terms have the following meanings:

(a) “API” means an Application Programming Interface, which is a set of rules, protocols, and tools allowing Your different software applications to communicate with the Platform.

(b) “API, Data and Licensing Partner” means an entity or individual authorized by Oyster under this Partner Agreement to access and use Oyster’s data, webflows, APIs or similar tools, inclusive of any related products or services, into their own systems or platforms.

(c) “Application” means any applications developed in connection with an API made available pursuant to the Partner Agreement.

(d) “Claim” means all and any actions, suits, damages, fees, costs, losses, expenses (including reasonable counsel’s fees), fines and other liabilities.

(e) “Company Marks” means Oyster’s proprietary trademarks, trade names, branding, or logos made available for use in connection with the API pursuant to these Partner Terms.

(f) “Confidential Information” means all non-public documents and information of a Party which is disclosed that have or could have commercial value or other utility and should reasonably be understood to be confidential by reference to the nature of the information (or which is otherwise specified as confidential by a Party). Examples include customer lists, pricing strategies, intellectual property, employee information, business plans, new ideas and methods for doing business. Confidential Information does not include information in the public domain through no fault of a Party, that is known to a Party prior to disclosure by the other Party, that is otherwise properly disclosed to a Party or is developed otherwise independently by a Party.

(g) “End Customer” is any third-party benefiting from Partner’s access to the Platform and Services and who incurs a payment obligation arising out of their access to the Platform and Services made available via the Partner Terms .

(h) “Fees” means any payments made by or owed to Oyster under this Partner Agreement, as outlined in the applicable SOW.

(i) “Initial Term” means the first term of the Partner Agreement, as specified in the applicable SOW.

(j) “Intellectual Property Rights” means patents, rights to inventions, utility model rights, trade marks, business names and domain names, rights in get-up and trade dress, design rights, semiconductor topography rights, integrated circuit topography rights, plant variety rights, database rights, copyright and related rights (including all rights of paternity, integrity, disclosure, and withdrawal, and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like), mask work rights, rights in goodwill and the right to sue for passing off or unfair competition, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights of any kind, whether registered or unregistered, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, registrations, and all similar or equivalent rights that exist or will exist in any part of the world.

(k) “Managed Servicer” means an entity authorized by Oyster under this Partner Agreement to use and manage Oyster’s Platform, inclusive of the products and services made available, on behalf of, or for the benefit of, End Customers, only as designated in the applicable SOW.

(l) “Marks” means a Licensor's name, logo, trademarks, service marks, trade names or other indicia of source or affiliation with the Licensor, or as otherwise specified by the Licensor.

(m) “Materials” means all reasonable information, promotional materials, and assistance requested by one Party from the other in connection with promotional activities contemplated by this Partner Agreement.

(n) “Mutual Referral Partner” means an entity or individual authorized by Oyster under this Partner Agreement to refer Potential Customers to Oyster, if designated as a Mutual Referral Partner in a SOW.

(o) "Partner” means the entity identified as such in the SOW.

(p) “Party” or “Parties” means Oyster and Partner in their individual capacity or collectively as parties to this Partner Agreement.

(q) “Personal Data” has its meaning as defined in the Partner Data Processing Addendum.

(r) “Platform Terms” means Oyster’s Customer Terms and Conditions, as available on Oyster’s website and updated from time to time.

(s) “Potential Customer” means a third-party who will potentially become a purchaser of Services from a Party.

(t) “Fee Period” means the period where the Customer is eligible to receive Fees for eligible End Customers, as specified in an applicable Appendix and/or SOW.

(u) “Reporting Period” means the period specified as such in an applicable SOW.

(v) “Reseller” means an entity or individual authorized by Oyster under this Partner Agreement to resell access to the Oyster Platform, inclusive of products and services available via the Platform, to End Customers, only as designated in a SOW.

(w) “Resulting IP” means works of Intellectual Property created by Team Members or Contractors (a) at an End Customer’s request, or (b) within the scope of and during the term of the Team Member’s placement with an End Customer (all rights in and to such Resulting IP, the “Resulting IP Rights”).

(x) "Services" means any services made available via the Platform, such as the Team Member Service, Contractor Service, or other future offering which You can access to subject to paying the applicable Subscription Fee.

(y) “Statement of Work” or “SOW” means an appendix to these Partner Terms which outlines the commercial details of Your participation in the Program.

(z) “Support Services” means applicable support services, if specified in the SOW.

(aa) “Taxes” means any taxes, levies and duties, of any nature, assessable, or imposed by any tax authority.

(bb) “Territory” means the territory specified in the SOW.

15.2. All capitalized words have the same meaning as defined in the Platform Terms. Further, wherever the term "Customer" is referred to within the Platform Terms, it includes You as identified as the Partner in an SOW under these Partner Terms.

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