PARTNER PROGRAM AGREEMENT

This Partner Program Agreement (“Agreement”) is entered into between Flowspace, Inc. (“Flowspace”) and_______, (“you”, “You”, or “Partner”), and governs your participation in the Partner Program (as defined below). Flowspace and Partner are sometimes referred to individually as a “Party” and collectively as the “Parties.”

1. DEFINITIONS

1.1 “Active Partner” means that you are in good standing with Flowspace, have completed all necessary Partner Program requirements, and that this Agreement has not been terminated by either Party.

1.2 “Confidential Information” means all data and information of a confidential nature of one Party disclosed by such Party to the other Party under this Agreement, as well as information that one Party knows or reasonably should know that the other Party regards as confidential, including business practices, software, technical information, future product/services plans, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects, and services. Confidential Information may be communicated orally, in writing, or in any other recorded or tangible form.

1.3 “Eligible Referral” means a Sales Lead

(a) is not an existing Flowspace customer, has not been in preliminary or advanced discussions with Flowspace about Flowspace Services, and has not been previously submitted by Partner or another party;

(b) ships at least one thousand (1,000) orders per month in the United States, cannot exceed 2 to 5x orders to SKU ratio (max of 500 SKUS); does not involve Prohibited Goods (defined in Section 1.12 below), and includes confirming interest and participating in an initial meeting with Flowspace;

(c) is not referred in violation of this Agreement or any other agreement; and

(d) is accepted by Flowspace under Section 2.4. 

1.4 “Intellectual Property Rights” means all intellectual property and proprietary rights now known or hereafter recognized in any jurisdiction, including rights associated with any of the following (i) patents, patent applications, patent disclosures, and inventions and all improvements thereto (whether or not patentable or reduced to practice), (ii) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (iii) copyrights, moral rights and works of authorship (whether or not copyrightable), and (iv) trade secrets, know-how, technologies, software, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications and other Confidential Information.

1.5 “Flowspace Materials” means any collateral materials describing Flowspace Services provided to Partner by Flowspace for use in connection with this Agreement.

1.6 “Flowspace Services” means the services offered by Flowspace, including those described on www.flow.space.

1.7 “Partner Program” means Flowspace’s partner program, as described in this Agreement.

1.8 “Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Flowspace Partner Program.

1.9 “Referral Services” means the marketing and promotion of Flowspace Services and the referral of leads for the sale of Flowspace Services, as further described in this Agreement. 

1.10 “Sales Lead” means a potential or prospective customer for the Flowspace Services that is identified to Flowspace by Partner via a Sales Lead submitted to Flowspace by Partner via e-mail to [email protected]. 

1.11 “Services” means the Referral Services.

1.12 “Prohibited Goods” means any items that Flowspace does not permit to be stored, handled, fulfilled, or transported within its network due to regulatory, hazard, or safety reasons. Prohibited Goods include, without limitation, alcohol, tobacco, empty pallets, fire wood, bulk food products pending production or pack out into shelf-stable or sellable packaging, ammunition and firearms (including air guns and imitation ammunition or firearms), animals, hunting trophies, animal parts or by-products such as ivory, shark fin, furs, snakeskin watch bands, mother of pearl inlays, animal remains or ashes, any cannabis or marijuana products containing THC levels above 0.3 percent including untested goods, any smoking paraphernalia used for the consumption of illegal drugs, cash or other legal tender including bank notes, currency notes, coins, travelers checks, restricted monetary equivalents, and cash equivalents, postage stamps, corpses, cremated or disinterred remains, explosive or hazardous products or waste, dangerous goods, and goods classified as hazardous by the United States Department of Transportation including but not limited to self-inflating life rafts, air bags, fireworks, explosives, gasoline or fuels, poisons, biological agents, etiological agents, and hosts and vectors of human disease, personal effects, precious and semi-precious stones or gems whether cut, uncut, polished, or unpolished, prescription pharmaceuticals, project cargo, any illegal goods such as counterfeit goods, unauthorized materials, and narcotics, articles of unique or one-of-a-kind materials such as artwork, archeological artifacts, and antiquities, goods that cannot be safely or lawfully stored, handled, distributed, or transported as indicated by applicable Safety Data Sheets, goods prohibited by law or regulation of any federal, state, or local government in the origin or destination, and any goods that Flowspace, its fulfillment partners, carriers, or other third-party providers determine to be unsuitable or that may endanger the safety of persons or property.

1.13 “Flat Fee” means the one-time payment of five hundred dollars ($500) payable to Partner under Section 3.1(a) for each Eligible Referral that satisfies the definition of Eligible Referral, whether or not such Eligible Referral becomes a paying customer of Flowspace.

1.14 “Referral Fee” means the percentage-based fee payable to Partner under Section 3.1(b) for revenue Flowspace receives from an Eligible Referral that becomes a paying customer.

1.15 “Effective Date” means the date on which this Agreement is last signed by both Parties.

2. REFERRAL SERVICES

2.1 Appointment. Flowspace hereby appoints Partner, and Partner hereby accepts such appointment, as Flowspace’s non-exclusive referral partner and provider of Referral Services.

2.2 Scope of Authority. With respect to Referral Services, Partner’s sole authority shall be to (a) market and promote Flowspace Services as set forth in this Agreement, and (b) provide sales leads to Flowspace. The Parties agree that Flowspace will directly enter into agreements with Flowspace customers for the provision of Flowspace Services to such Flowspace customers.

2.3 Restrictions. Partner shall not:

         (a) sell, resell, distribute, license or sublicense the Flowspace Services directly to any Sales Lead, but will instead refer all Sales Leads to Flowspace;

         (b) make any statements concerning the Flowspace Services that are false, misleading or inconsistent with the Flowspace Materials or other materials (including price lists) published or otherwise supplied by Flowspace from time to time;

         (c) make any commitments, warranties or guarantees to Sales Leads with respect to the Flowspace Services, the pricing thereof, or Partner’s relationship with Flowspace; or

         (d) distribute any unsolicited bulk e-mails (spam) mentioning or referring to Flowspace or the Flowspace Services.

2.4. Sales Lead Acceptance. Following Partner’s submission of a Sales Lead to Flowspace https://flow.space/customer-referral-program/ in accordance with Section 1.10, Flowspace will review the Sales Lead and notify Partner via e-mail whether Flowspace agrees that such Sales Lead qualifies under this Agreement as an Eligible Referral. If Flowspace notifies Partner that a Sales Lead is not an Eligible Referral, Partner will immediately cease all Referral Services with respect to that Sales Lead. If Flowspace notifies Partner that a Sales Lead is a potential Eligible Referral, at Flowspace’s request, Partner shall discuss each Sales Lead in reasonable detail with Flowspace and assist Flowspace in making contact with the Sales Lead by arranging an introduction, meeting, conference call, or other communication.

2.5 No Binding Authority. Partner has no authority to (i) negotiate any contract for or on behalf of Flowspace, or (ii) bind Flowspace to any contract, representation or understanding concerning Flowspace or the Flowspace Services.

2.6 Disclosure of Referral Partner Relationship. It is the sole responsibility of the Partner to disclose the nature of their relationship with Flowspace to any customers and Partner shall indemnify and hold harmless Flowspace against any liability arising from Partner’s lack of proper disclosure to an actual or potential customer.

2.7 Anti-Spam Policy. Partner will not use spam e-mail or other forms of internet abuse (including spamming forums, blogs, twitter, facebook and other social media outlets) to seek referrals.

Partner will perform its activities hereunder in compliance with all applicable laws (including the CAN-SPAM Act of 2003) and any other Federal Trade Commission laws or regulations, and Partner will only send e-mails containing a link or message regarding Flowspace’s products and services to person(s) who have been previously contacted and who have consented to the fact that Partner will be sending an e-mail containing such information. 

Flowspace may investigate any Partner conduct and, at its sole discretion and with or without cause or prior notice, terminate this Agreement.  In addition, Partner will indemnify and hold harmless Flowspace against any liability arising from Partner’s breach of any obligation, representation or warranty under this Section 2 of this Agreement.

If you wish to report a violation of our Anti-Spam Policy, please forward all relevant evidence to our customer service department at [email protected].

2.8 Partner acknowledges and agrees that Partner’s participation in the Partner Program, including information transmitted to or stored by Flowspace, is governed by the Flowspace Privacy Policy found at www.flow.space/privacy, as may be updated.

3. FEES; PAYMENT

3.1 Fees for Eligible Referrals.

(a) Flat Fee. Flowspace will pay Partner a Flat Fee of five hundred dollars ($500) for each Eligible Referral that meets the definition of Eligible Referral. Payment of the Flat Fee does not require that the Eligible Referral enter into an agreement for Flowspace Services or become a paying customer.

(b) Referral Fee. If an Eligible Referral becomes a paying customer of Flowspace within 180 days of of the initial meeting discussed in Section 1.3, Flowspace will pay Partner a Referral Fee equal to one and one-half percent (1.5%) of the revenue actually received by Flowspace from that Eligible Referral, subject to the following:

(i) the Eligible Referral must pay Flowspace for at least ninety (90) days;

  (ii) the Referral Fee will be paid for up to twelve (12) months from the date the Eligible Referral first inbounds goods;

(iii) Partner must remain an Active Partner during the payment period;

  (iv) Referral Fees are paid only on funds actually received by Flowspace, not on billed amounts; and

   (v) the aggregate total of all Flat Fees and Referral Fees payable to Partner for any single Eligible Referral will not exceed thirty thousand five hundred dollars ($30,500).

3.2 Payment. Flowspace shall pay Partner the Referral Fee on a quarterly basis within 45 days after receiving payment from each Eligible Referral; provided that the Eligible Referral has been a paying Flowspace customer for a minimum of 90 days. The Flat Fee for each Eligible Referral becomes payable upon Flowspace’s written confirmation that the criteria in Section 1.3 have been satisfied. The Flat Fee for each Eligible Referral shall be paid on the same quarterly schedule as Referral Fees. Any claim for unpaid Referral Fees or Flat Fees must be submitted in writing within ninety days after the end of the quarter in which such fees were payable, or it is waived.

3.3 Requirements for Payment; Forfeiture.

1. In order to receive the applicable fees under this Agreement, Partner must have: (i) agreed to the terms of this Agreement; (ii) submitted to Flowspace the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Partners); and (iii) returned the forms required by (i) and (ii) above by e-mail to [email protected] (collectively, the “Enrollment Criteria”).

1. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the Enrollment Criteria remain outstanding for six (6) months immediately following the date when an applicable fee is due to Partner, then Partner’s right to receive such applicable fee will be forever forfeited (each, a “Forfeited Transaction”). Flowspace will have no obligation to pay Partner any fees associated with a Forfeited Transaction. Once Partner complies with all of the Enrollment Criteria, then you will be eligible to receive the applicable fees for any Eligible Referrals (excluding any Forfeited Transactions).

4. TERM; TERMINATION

4.1 Term. The term of this Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 4. This Agreement shall renew automatically for additional one (1)-year terms unless one Party provides the other written notice no later than thirty (30) days prior to the expiration of the then-current term of the Agreement of its intention to allow the Agreement to expire at the end of such term.

4.2 Termination for Breach. Either Party may terminate this Agreement for cause resulting from the material breach of this Agreement by the other Party by providing the breaching party written notice of such material breach and the intention to terminate for cause. The Party receiving such notice shall have thirty (30) days to cure such material breach. If at the end of such thirty (30) day period, the breach has not been cured to the reasonable satisfaction of the Party seeking to terminate the Agreement, the Agreement shall terminate.

4.3 Termination for Convenience. Either Party may terminate this Agreement for convenience upon sixty (60) days’ written notice.

4.4 Effect of Termination; Duties of the Parties Upon Termination. Upon any termination or expiration of this Agreement, Partner shall

         (a) refrain thereafter from representing itself as a promoter or marketer of Flowspace Services, or as a referral partner of Flowspace;

         (b) immediately cease all use of any Flowspace Marks and Flowspace Materials; and

         (c) return to Flowspace the Flowspace Materials and all tangible items in Partner’s possession or under its control containing Confidential Information of Flowspace.

Upon any termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate. In the event that either Party terminates this Agreement, Flowspace’s sole and exclusive obligation to Partner shall be to pay Partner the Referral Fees and Flat Fees that have accrued up to the date of such termination.

4.5 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 4.4 (Effect of Termination; Duties of the Parties Upon Termination), 4.5 (Survival), 6.3 (Ownership), 7.2 (General Disclaimers), 8 (Confidentiality), 9 (Indemnities), 10 (Limitation of Liability),  and 11 (Miscellaneous).

5. RESERVED FOR FUTURE USE. 

6. LICENSES AND OWNERSHIP 

6.1 Flowspace Marks. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Flowspace grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the Flowspace trademarks, service marks, and logos (the “Flowspace Marks”) to perform its obligations under this Agreement. The use of all Flowspace Marks, including placement and sizing, shall be subject to Flowspace’s then-current trademark use guidelines, and can be requested at any time from Flowspace. Partner shall, upon request by Flowspace, promptly provide Flowspace with samples of all materials that use the Flowspace Marks for Flowspace’s quality control purposes. If, in Flowspace’s discretion, the Partner’s use of the Flowspace Marks does not meet Flowspace’s then-current trademark usage policy, Flowspace may, at its option, require Partner to revise such materials and re-submit them under this Section 6.1 prior to any further display. Except for the right to use the Flowspace Marks set forth above, nothing contained in this Agreement shall be construed to grant to Partner any right, title or interest in or to the Flowspace Marks, and all right, title, and interest in and to the Flowspace Marks shall be retained by Flowspace. Partner acknowledges that Flowspace asserts its exclusive ownership of the Flowspace Marks and the renown of the Flowspace Marks worldwide. Partner shall not take any action inconsistent with such ownership and further agrees to take all actions that Flowspace reasonably requests to establish and preserve its exclusive rights in and to the Flowspace Marks. Partner shall not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the Flowspace Marks or in such a way as to create combination marks with the Flowspace Marks.

6.2 Flowspace Materials. During the term of this Agreement, Flowspace may make available to Partner certain Flowspace Materials. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, Flowspace grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to distribute the Flowspace Materials exactly as provided to Partner by Flowspace to perform Partner’s obligations under this Agreement.

6.3 Ownership. As between Partner and Flowspace, Flowspace retains all right, title, and interest in and to (a) the Flowspace Marks, (b) the Flowspace Services, (c) the Flowspace Materials, and (d) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under this Agreement.

7 REPRESENTATIONS AND WARRANTIES

7.1 Representations and Warranties. Each Party represents and warrants to the other Party that

         (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder;

         (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party; and

         (c) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms.

7.2 General Disclaimers. FLOWSPACE AND PARTNER ACKNOWLEDGES AND AGREES THAT, IN ENTERING INTO THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY WARRANTIES, EXPRESS OR IMPLIED, AND THAT NEITHER PARTY HAS MADE ANY REPRESENTATIONS, ASSURANCES, OR PROMISES THAT FLOWSPACE WILL RECEIVE ANY NEW REFERRED CUSTOMERS OR NEW BUSINESS OR THAT PARTNER WILL RECEIVE ANY REFERRAL FEES AS A RESULT OF THIS AGREEMENT. FLOWSPACE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE FLOWSPACE PRODUCTS, WHICH ARE PROVIDED AS-IS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

7.3 Warranties to Third Parties. Except in the course of delivering the Flowspace Materials as specifically permitted in Section 2, Partner shall not provide any representations or warranties to any Sales Lead or any other third party with respect to the Flowspace Services.

8 CONFIDENTIALITY

8.1 Confidentiality. Each Party shall maintain in confidence all Confidential Information disclosed to it by the other Party. Neither Party shall use for any purpose outside the scope of this Agreement, or disclose to any third party, such Confidential Information except as expressly authorized by this Agreement. To the extent that disclosure is authorized by this Agreement, the disclosing Party shall obtain prior agreement from its employees, contractors, agents, and consultants to whom disclosure is to be made to hold in confidence and not make use of such information for any purposes other than those permitted by this Agreement. Each Party shall use at least the same standard of care as it uses to protect its own most confidential information (and in no event less than reasonable care) to ensure that such employees, contractors, agents, and consultants do not disclose or make any unauthorized use of such Confidential Information. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section 8 shall survive any termination or expiration of this Agreement for a period of five (5) years thereafter; provided that the receiving Party shall safeguard all Confidential Information that is a trade secret as required by this Agreement in perpetuity or for so long as such information remains a trade secret under applicable law.

8.2 Exceptions. The obligations of confidentiality contained in Section 8.1 shall not apply to the extent that it can be established by the receiving Party by competent proof that such Confidential Information:

1. was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the other Party;
2. was generally available to the public or was otherwise part of the public domain at the time of its disclosure to the other Party;
3. became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of the receiving Party in breach of this Agreement; or
4. was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others.

8.3 Authorized Disclosure. Notwithstanding any provision to the contrary herein, the receiving Party may disclose Confidential Information to the extent required by law or any governmental authority, provided that such receiving Party shall to the extent practicable use commercially reasonable efforts to assist the disclosing Party in securing confidential treatment of such information required to be disclosed. Prior to disclosing any Confidential Information under this Section 8.3, the receiving Party shall take reasonable steps to give the other party sufficient notice of the disclosure request for such Party to contest the disclosure request.

9 INDEMNITIES

9.1 By Flowspace. Flowspace shall indemnify, defend, and hold Partner harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any third-party claims, suits, actions, or proceedings (collectively, “Claims”) based on an allegation that the Flowspace Marks, in the absence of any modifications by Partner thereto, infringes any United States trademark of any third party.

9.2 By Partner. Partner shall indemnify, defend, and hold Flowspace harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any Claims related to: (a) Partner’s performance of any Services, or (b) allegations that Partner made a representation or warranty regarding Flowspace or the Flowspace Services that is inconsistent with the Flowspace Materials provided to Partner by Flowspace, or is otherwise unauthorized by Flowspace.

9.3 Indemnification Procedure. An indemnifying party hereunder shall be liable for any costs and damages to third parties incurred by the other party which are attributable to any such Claims, provided that such other party (a) notifies the indemnifying party promptly in writing of the claim, (b) gives the indemnifying party the sole authority to defend, compromise or settle the claim, and (c) provides all available information, assistance, and authority at the indemnifying party’s reasonable request and at the indemnifying party’s reasonable expense to enable the indemnifying party to defend, compromise, or settle such claim. An indemnifying party hereunder shall diligently pursue any defense required to be rendered hereunder, shall keep the indemnified party informed of all significant developments in any action defended by the indemnified party, and shall not enter into any settlement affecting the indemnified party’s interests without the prior consent of the indemnified party.

10 LIMITATION OF LIABILITY

10.1 EXCEPT IN CONNECTION WITH BREACHES OF CONFIDENTIALITY AND PAYMENTS TO THIRD PARTIES ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (A) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL EITHER PARTY, ITS SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PARTNER UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

 11 MISCELLANEOUS.

11.1 Relationship of the Parties. The relationship of Partner and Flowspace is that of independent contractors. Regardless of the use of the word “partner” in the title of this Agreement, neither Party is, nor shall be deemed to be, a partner, joint venturer, agent, employee or legal representative of the other Party for any purpose. Neither Party shall be entitled to enter into any contracts in the name of or on behalf of the other Party, and neither Party shall be entitled to pledge the credit of the other Party in any way or hold itself out as having authority to do so. No Party shall incur any debts or make any commitments for the other, except to the extent, if at all, explicitly provided herein.

11.2 Assignment. Partner shall not assign or transfer this Agreement, in whole or in part, whether by operation of law, change of control, or otherwise, or delegate any of its obligations hereunder, without the prior express written consent of Flowspace. Subject to the foregoing, this Agreement shall be binding upon the successors and permitted assigns of the Parties. Any assignment by Partner in violation of the foregoing shall constitute a material breach of this Agreement and shall be null and void. Flowspace may assign all of its right, title and interest under this Agreement to any (i) person or entity with which Flowspace is merged or consolidated, or (ii) person or entity that acquires all or substantially all of Flowspace’s assets or equity securities.

11.3 Governing Law.. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law rules that would require or permit the application of the laws of any other jurisdiction.

11.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than submission of a Sales Lead) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, e-mail, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

Notice to FLOWSPACE: Flowspace, Inc. Attn: Partnerships 660 Baker Street, B210 Costa Mesa, CA 92626  (323) 310-0710 [email protected]

Notice to PARTNER: Name: Contact Name: Address: Phone: e-mail:

11.5 Severability. In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.

11.6 Waiver. The failure by either party to exercise any right, power or privilege under the terms of this Agreement will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege. 

11.7 Amendment. Flowspace may amend this Agreement from time to time, and the new Agreement will replace prior versions. Flowspace will notify Partner of changes by email. The updated Agreement will take effect and become binding ten (10) days after the email is sent. If Partner does not accept the changes, Partner must notify Flowspace in writing within those ten (10) days, and this Agreement will terminate immediately.

11.8 Entire Agreement. The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties. In the event that the Parties desire to change, add, or otherwise modify any terms, they shall do so in writing to be signed by both parties.

11.9 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

11.10 Feedback. If Partner provides any feedback (including identifying potential errors and improvements) to Flowspace concerning the Partner Program, the Flowspace Services, the Flowspace Materials or any aspects of the Service (“Feedback”), Partner hereby assigns to Flowspace all right, title, and interest in and to the Feedback, and Flowspace is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, the Flowspace Services, the Flowspace Materials and/or the Service and to create other products and services. Flowspace will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.

11.11 Arbitration. Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration shall take place in Los Angeles, California before a single arbitrator, and judgment on the award may be entered in any court of competent jurisdiction. This Agreement is governed by the Federal Arbitration Act and California law.

The Parties agree to the terms and conditions set forth above as demonstrated by their signatures as follows:

“FLOWSPACE”

Signed: ________________________________

By:  ___________________________________

Title: __________________________________

Date: __________________________________

 

“PARTNER”

Signed: _____________________________________

By:  ________________________________________

Title: _______________________________________

Date: _______________________________________