This Telnyx Channel Partner Agreement (“Channel Partner Agreement”) is dated as of the date Partner (as defined below) accepts the terms and conditions set forth herein (“Effective Date”) and entered into between Telnyx LLC (“Telnyx”) and such individual or entity accepting the terms and conditions set forth herein (such individual or entity, the “Partner”).
BY REGISTERING FOR THE CHANNEL PARTNER PROGRAM, PARTNER (AND PARTNER’S ORGANIZATION, IF APPLICABLE) AGREES TO BE LEGALLY BOUND BY THIS CHANNEL PARTNER AGREEMENT, INCLUDING ANY UPDATES. PLEASE REVIEW THE AGREEMENT CAREFULLY. ONCE ACCEPTED, THIS CHANNEL PARTNER AGREEMENT BECOMES A LEGAL COMMITMENT BETWEEN PARTNER AND TELNYX. IF PARTNER DOES NOT AGREE TO BE BOUND BY THE CHANNEL PARTNER AGREEMENT, PARTNER SHOULD NOT CLICK THE “SUBMIT” BUTTON AND SHOULD NOT JOIN THE CHANNEL PARTNER PROGRAM.
Partner desires to participate in Telnyx’s channel partner program (“Channel Partner Program”) and refer certain of Telnyx’s products and services (the “Services”) to potential customers pursuant to the terms and conditions hereof. For the avoidance of doubt, this Channel Partner Agreement does not govern the provisioning of the Services or any services by Telnyx, which will be governed in each case by separate terms and conditions. The parties agree as follows:
- DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of fifty percent (50%) or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “Eligible Contract” means a contract executed between Telnyx and Referred Customer with at least a twelve (12) month initial term and a minimum monthly commitment for the Referral-Eligible Services equal to at least $500 per month.
1.3 “Eligible Net Revenues” means an amount equal to the minimum monthly commitment associated with the Referral-Eligible Services set forth in any Eligible Contract for the Service Order Initial Term of such Eligible Contract.
1.4 “Prospect” or “Prospects” shall mean third parties who are potential customers or prospects of Telnyx.
1.5 “Referred Customer” shall mean a customer of Telnyx that enters into an Eligible Contract directly as a result of being referred to Telnyx by Partner in writing in accordance with this Agreement. A “Referred Customer” shall not include any customer that: (1) Telnyx can reasonably demonstrate was an existing contact of Telnyx prior to Partner’s referral; or (2) becomes a customer of Telnyx by entering into Telnyx’s definitive documentation at any time following the date that is six (6) months following Partner’s referral to Telnyx.
1.6 “Referral-Eligible Services” means (i) PSTN calling bundles for the US and Canada provided by Telnyx through Microsoft Teams or Zoom Phone, and (ii) Telnyx’s blockchain storage services.
- COOPERATIVE MARKETING AND INTEGRATION EFFORTS.
2.1 Resource Efforts. Partner shall do the following tasks in connection with this Agreement: (a) submit Prospect information to Telnyx through Telnyx’s deal registration portal or as otherwise set forth by Telnyx in writing, (b) assist Telnyx in making contact with the Prospect by arranging an introduction, meeting, conference call, demonstrations or other means of communications between Telnyx and Prospect, (c) inform Prospects of the general features and capabilities of the Telnyx’s Services, (d) promote and market the use of the Telnyx’s Services to Prospects, (e) generate service order quotes to Prospects as instructed by Telnyx, and (f) anything else reasonably requested by Telnyx in connection with this Agreement.
2.2 Limitation on Representations. Partner agrees not to make any representation, warranty or guarantee to any third party concerning Telnyx’s Services. Further, Telnyx makes no representations, warranties, or guarantees with respect to its Services.
2.3 Non-Exclusivity and Referral Fees. This Channel Partner Agreement creates a non-exclusive relationship and nothing in this Channel Partner Agreement will prevent either party from entering into similar referral arrangements with any third party at any time.
2.4 Referral Fees. For the term of this Agreement and with respect to any applicable period of determination, Telnyx shall pay to Partner a referral fee (“Referral Fee”) equal to 20% of Eligible Net Revenues. Eligible Net Revenues shall not accrue for the purposes of calculating the Referral Fee hereunder until Telnyx receives all Eligible Net Revenue. Any Referral Fees will be calculated on a monthly basis and be paid by Telnyx to Partner within 60 days after such accrual. The Referral Fee shall be the sole form of compensation to Partner in connection with this Channel Partner Agreement. Except as specifically set forth herein, nothing herein obligates either party to pay to the other party any fee or revenue share with respect to any Prospects or Referred Customers. Referral Fee amounts and payment terms for Referral Fees may be amended by Telnyx without notice in its absolute sole discretion.
- TERM AND TERMINATION
3.1 Term of Channel Partner Agreement. The term of this Channel Partner Agreement shall begin on the Effective Date and continue until terminated in accordance with this Channel Partner Agreement has expired or been terminated (the “Term”).
3.2 Termination for Convenience. Either party may terminate this Channel Partner Agreement for any reason with immediate effect by providing the other party written Notice.
3.3 Effect of Termination. Upon the effective date of termination of this Channel Partner Agreement: (a) all rights granted in this Channel Partner Agreement will cease, and (b) within 30 days after such termination, each party shall return or destroy all Confidential Information of the other party in its possession and shall not make or retain any copies of such Confidential Information, except (i) as required to comply with any applicable legal or accounting record keeping requirement or (ii) that a party may retain Confidential Information in a party’s archived backup files. Sections 1, 2.5, 3.3, 4, 5, 7, and 8 shall survive termination of this Channel Partner Agreement.
- CONFIDENTIALITY
4.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Channel Partner Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, whether or not such information is designated as confidential. Further, for the avoidance of doubt, nonpublic information regarding the Services, including, without limitation, unpublished pricing, shall constitute Telnyx's Confidential Information.
4.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Channel Partner Agreement, and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Channel Partner Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
4.3 Exceptions. Recipient shall have no confidentiality obligations under Section 4.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process, provided that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.
- PROPRIETARY RIGHTS
5.1 Intellectual Property. As between the parties, Telnyx owns all right, title, and interest in Telnyx’ intellectual property, including all intellectual property rights therein. Any rights not expressly granted to Partner hereunder are reserved by Telnyx, its licensors and suppliers.
5.2 Trademarks. Telnyx’s name, trademarks, service marks, logos, trade dress, designs, including those otherwise used by Partner, are such party’s trademarks or service marks (“Telnyx Marks”) and may not be used in any manner except as expressly permitted in this Channel Partner Agreement, or with Telnyx’s prior written consent. This Channel Partner Agreement does not grant Partner any right, title, interest, or license in or to any Telnyx Marks. During the Term, Partner may use the Telnyx’s corporate name, technology names and trademarks to accurately identify and refer to such other party and its products and services, provided that any such use is not likely to cause confusion about the source of Telnyx’s Services, products or services or the parties’ relationship with each other. Any use of Telnyx Marks shall be according to the Telnyx’s usage guidelines. Partner may not publish any advertisement or website that includes Telnyx Marks of the other party without prior review and approval by Telnyx of the proposed ad and/or website.
- REPRESENTATIONS AND WARRANTIES
6.1 Warranties. Each party warrants that the person signing this Channel Partner Agreement on such party’s behalf has been duly authorized and empowered to enter into this Channel Partner Agreement.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CHANNEL PARTNER AGREEMENT, TELNYX HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS Channel Partner Agreement, INCLUDING WITH RESPECT TO THE PROVISIONING OF ANY SERVICES.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL TELNYX BE LIABLE TO PARTNER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CHANNEL PARTNER AGREEMENT, TELNYX’S AGGREGATE LIABILITY TO PARTNER FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS CHANNEL PARTNER AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED BY ONE PARTY TO THE OTHER PARTY DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY OR $1,000, WHICHEVER IS LESS.
- MISCELLANEOUS PROVISIONS
8.1 Independent Contractors; No Agency, Partnership, or Joint Venture; Restrictions. Each party is an independent contractor of the other, and nothing contained in this Channel Partner Agreement will be construed to: (a) give either party the power to direct or control the day-to-day activities of the other; (b) create an employer-employee relationship between the parties; (c) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint undertaking; or (d) create any legal agency relationship on behalf of either party. Partner’s sole authority on behalf of Telnyx under this Channel Partner Agreement will be to refer Prospects for the Telnyx Services and to conduct the activities set forth in Section 2.1. Partner is not authorized to make any commitments or agreements or to incur any liabilities whatsoever on behalf Telnyx, and Telnyx will not be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Partner in its own name or on behalf of Telnyx, except as specifically authorized under this Channel Partner Agreement or in writing by Telnyx. Partner is not authorized to enter into any agreement, either in its own name or on behalf of Telnyx, with respect to Telnyx’s Services. All financial and other obligations associated with each party’s business are the sole responsibility of such party. Each party shall be responsible for any costs and expenses incurred by such party during performance of this Channel Partner Agreement. Nothing herein obligates Telnyx to enter into any relationship or agreement with any Prospect and in the event Telnyx agrees to enter into an agreement with any Prospect, Telnyx shall determine in its sole and absolute discretion the terms of such agreement with no obligation of any consultation with Partner.
8.2 Assignment. Partner may not assign or transfer, by operation of law or otherwise, this Channel Partner Agreement or any of its rights under this Channel Partner Agreement to any third party without Telnyx’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. This Channel Partner Agreement does not confer any rights or remedies upon any person or entity not a party hereto. Telnyx may freely assign its rights and/or obligations or any portion of them to any Affiliate or third party.
8.3 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any event which is beyond the reasonable control of such party.
8.4 Notices. All notifications, requests, demands and other communications required or permitted under the Channel Partner Agreement (“Notices”) will be in writing and addressed to, in the case of Telnyx, the address(es) specified below or, in the case of Partner, to an address (including an email address) associated with Partner’s account with Telnyx. If to Telnyx: c/o Telnyx LLC, 205 N Michigan Avenue, #810, Chicago, Illinois 60601, with a copy via email (which shall not alone constitute notice) to [email protected].
8.5 Governing Law. This Channel Partner Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Chicago, Illinois in any litigation arising out of this Channel Partner Agreement.
8.6 Remedies. Except as otherwise expressly provided in this Channel Partner Agreement, the parties’ rights and remedies under this Channel Partner Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 4 or 5 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required.
8.7 No Third Party Beneficiaries. Except with respect to any provision expressly designating a third party as a beneficiary of this Channel Partner Agreement, nothing in this Channel Partner Agreement, express or implied, confers or is intended to confer upon or give to any person or entity, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with this Channel Partner Agreement. The express designation of a third party beneficiary (if any) is limited to only those rights expressly identified by the designation.
8.8 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Channel Partner Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8.9 Severability. If any provision of this Channel Partner Agreement is, for any reason, held to be unenforceable, the other provisions of this Channel Partner Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
8.10 Counterparts. This Channel Partner Agreement may be executed in counterparts and electronically, each of which will be considered an original, but all of which together will constitute the same instrument.
8.11 Entire Agreement. This Channel Partner Agreement and any exhibits or attachments hereto, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. The terms of this Channel Partner Agreement may be unilaterally amended from time to time by Telnyx in its sole discretion.
8.12 No Legal Partnership. This Channel Partner Agreement is intended solely to set forth a referral program, and does not under any circumstance constitute a legal partnership between the parties under any state or other applicable law.
The parties by their authorized representatives have entered into this Channel Partner Agreement as of the Effective Date.