AFFILIATE PARTNER AGREEMENT
Effective Date: March 2, 2023
BY ACCESSING, PARTICIPATING, OR OTHERWISE SIGNING UP FOR THE AFFILIATE PROGRAM, YOU REPRESENT THAT: (I) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO THESE AFFILIATE PARTNER AGREEMENT (“AGREEMENT”) , (II) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FRESHWORKS INC., AND (III) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR SIGN UP TO THE AFFILIATE PROGRAM.
The “Effective Date” of this Agreement is the date on which You sign up for the Affiliate Program.
This Agreement is entered into by and between Freshworks Inc, a Delaware corporation (“Freshworks”) and the person or entity signing up for the Affiliate Program (“Affiliate Partner/You”). In consideration of the terms and conditions of this Agreement set forth below, the parties agree as follows:
1. Purpose. Subject to the terms and conditions of this Agreement and Supplemental Terms (where applicable), Freshworks hereby grants to Affiliate Partner during the term a limited, non-transferable, revocable and non-exclusive right to market and refer Freshworks' Products to prospective customers.
2. Scope of the Referral Process
(i) Qualified Referrals. Affiliate Partner is eligible to receive a referral commission only if Affiliate Partner submits a referral to Freshworks which meets the requirements set forth under this Agreement (“Qualified Referral”). Freshworks shall, at its sole discretion, decide whether a referral constitutes a Qualified Referral.
Affiliate Partner shall submit all referrals through the referral URL provided by Freshworks for the same (“Referral Link”).
For abundant clarity, a referral submitted by Affiliate Partner through any other mode of communication, including without limitation, via a phone call or an e-mail including self-referrals shall not be considered Qualified Referrals.
(ii) Negotiation Rights. Affiliate Partner agrees not to negotiate terms or make commitments on behalf of Freshworks. Freshworks shall collect the applicable subscription charges for the Freshworks Products directly from the Customer.
(iii) Eligible Product Plans. Affiliate Partner shall be entitled to a commission only if a Qualified Referral turns into a paying Customer of Freshworks within three (3) months from the date a referral is submitted by the Affiliate Partner (“Conversion Period”) and with a subscription term equal to or greater than one (1) month. On a case-by-case basis, the parties may mutually agree in writing to waive or extend the Conversion Period for a Qualified Referral.
(iv) Eligible Products. Freshworks products which are eligible for referrals are set forth in the table below (“Freshworks Product(s)”). Freshworks reserves the right to add, delete or modify any Freshworks Products at its sole discretion.
|S.No||PRODUCT/ SERVICE NAME||LIST PRICE|
|1.||Freshdesk Omnichannel Suite https://www.freshworks.com/freshdesk/||Latest pricing for Freshdesk Omnichannel Suite – https://www.freshworks.com/freshdesk/pricing|
|2.||Freshdesk https://www.freshworks.com/freshdesk/support-desk||Latest pricing for Freshdesk https://www.freshworks.com/freshdesk/pricing|
|3.||Freshchat www.freshworks.com/live-chat-software||Latest pricing for Freshchat www.freshworks.com/live-chat-software/pricing/|
|4.||Freshcaller www.freshworks.com/freshcaller-cloud-pbx/||Latest pricing for Freshcaller – www.freshworks.com/freshcaller-cloud-pbx/pricing/|
|5.||Freshservice https://www.freshworks.com/freshservice||Latest pricing for Freshservice – https://www.freshworks.com/freshservice/pricing|
|6.||Freshsales www.freshworks.com/crm/sales/||Latest pricing for Freshsales - www.freshworks.com/crm/pricing/|
|7.||Freshmarketer www.freshworks.com/crm/marketing/||Latest pricing for Freshmarketer www.freshworks.com/crm/marketing/pricing/|
(v) Ineligible Referrals. When someone subscribes to a Freshworks Product(s) pursuant to the Affiliate Partner’s sales and marketing efforts in accordance with this Agreement, Freshworks shall, at its sole discretion determine if such subscriber is a Qualified Referral. Referrals ineligible for a referral commission are set forth in the below table.
|Existing customers||Referrals who are Freshworks’ existing Customers prior to the referral are not eligible to receive referral commission.|
|Existing Opportunities||Referrals that convert into leads that are materially the same (i.e., same customer, same products) as opportunities that are in Freshworks’ or Freshworks’ resellers active sales process at the time of the referral or were in process during the sixty (60) days prior to the referral submission, are not eligible for referral commission.|
|Professional Services||Fees for support, implementation, customization, training, consulting or other professional services, or for referring third-party products or services are not eligible for referral commission.|
|Revenue Beyond First Year||Customers with a term of more than one year are only eligible for referral commission with respect to the First Year Net Revenue.|
|Failure to Follow Process||Referrals where the Affiliate Partner has failed to follow the process set out in this agreement are not eligible for referral commission.|
|Self-Referrals||Referrals referred by Affiliate Partner are not eligible for referral commission where (i) the referred lead is the Affiliate Partner itself or an entity that the Affiliate Partner owns or is an employee in; or (ii) where the referred lead is an affiliate of the Affiliate Partner. If the Affiliate Partner makes a self-referral, Freshworks may, at its discretion, terminate this Agreement and cease paying commissions for such self-referral.|
|Referral Link||Referrals submitted by the Affiliate Partner without using the Referral Link or before signing up for the Affiliate Program are not eligible to receive any commissions under this Agreement.|
(vi) Commission. Upon a Qualified Referral becoming a Customer of Freshworks, Affiliate Partner shall be eligible to a recurring commission of 15% of the monthly recurring revenue on invoice amounts realized by Freshworks from the Customer.
(vii) First Year Net Revenue. Once a Qualified Referral becomes a paying Customer, the Affiliate Partner is entitled to receive a referral commission for the next twelve (12) months; provided however, if the Customer's subscription to the Freshworks Product is terminated before the end of the 12-month period, Affiliate Partner will not be entitled to any commission following the date of such termination. The referral commission is based on the applicable referral commission rate applied on all invoice amounts realized by Freshworks for eligible Freshworks Products associated with such Qualified Referral including without limitation, net of any discounts, taxes payable and subsequent refunds not attributable to Freshworks’ invoicing error or breach. (“First Year Net Revenue”). If an order executed in connection with a referral is a multiyear order, referral commission will be based only on the First Year Net Revenue, and not on any revenue covering any period thereafter.
(viii) Payment Process. Freshworks will calculate referral commission for each Qualified Referral on a monthly basis, and such commission will be disbursed to the Affiliate Partner’s Account through the appropriate Vendor, within 30 days from the date of receipt of invoice amounts from the Customer. Affiliate Partner can realize the commissions paid by Freshworks in accordance with the terms and conditions applicable on the usage of its Account. Once the commission is processed at Freshworks’ end, Freshworks shall not be responsible for any failure of the Affiliate Partner to realize the commission amounts from its Account. The Vendor shall be solely responsible to provide technical support to the Affiliate Partner for access and usage of their Account.
(ix) Referral Commission Refunds. If Freshworks makes a referral commission payment to Affiliate Partner in error, or if a Qualified Referral fails to make required first-year subscription charge payments to Freshworks within sixty (60) days of the payment due date, or if the applicable contract between Freshworks and the Qualified Referral is terminated before it's agreed upon expiration date, Freshworks shall be entitled to a refund of the corresponding referral commission payments made to such Affiliate Partner (provided that if a non-paying customer does ultimately pay all amounts due, Freshworks will repay Affiliate Partner the applicable commissions minus a deduction for collection and administrative costs, not exceeding half of the total commission). Freshworks may, in its sole discretion, choose to either offset such refundable amounts against commissions Freshworks owes to Affiliate Partner hereunder, or invoice Affiliate Partner for the refundable amounts; invoiced amounts are due and payable within thirty (30) days of the invoice date. Freshworks’ right to a refund of which Freshworks has not notified Affiliate Partner will expire ninety (90) days after the one-year anniversary of the start date of the applicable order.
3. Affiliate Partner Responsibilities
(i) Affiliate Partner represents and warrants that it shall (a) not send unsolicited communications, junk email, spam or other forms of duplicative or unsolicited messages to leads, (b) not use banners or links on newsgroups, chatrooms, message boards, banner networks, hit farms, guest books etc., (c) not run any pay-per-click campaigns bidding on Freshworks brand-related keywords, (d) not have more than one Account, (e) not have an Account with more than one (1) Vendor (f) use only materials given by Freshworks for Affiliate Partner’s sales and marketing efforts, (g) not engage in excessive telemarketing activities for promoting Freshworks Products, (h) not promote Freshworks on sites containing unlawful, hateful, abusive or pornographic content, and (i) adhere to Freshworks’ Business Partner Standards of Conduct located at the URL https://www.freshworks.com/company/partners/home/partner-standards-of-conduct/ (“Standards”) and all applicable laws in the performance of its obligations under this Agreement.
(ii) Affiliate Partner represents, warrants and covenants that (i) Affiliate Partner is not named on, or owned or controlled by any party named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Affiliate Partner is not a national of, located in, or a company registered in, any Prohibited Jurisdiction (as defined below), and (iii) shall comply with all applicable laws.
(iii) Affiliate Partner hereby agrees and affirms that all disbursement of the commission are made by Vendor and in no event, Freshworks is liable for the same.
(iv) Affiliate Partner understands that Freshworks shall not be liable in the event Vendor suspends/terminates /blacklists/ the Affiliate Partner Account.
(v) Onboarding and Support: Pursuant to signing up for the Affiliate Program, Freshworks may send the Affiliate Partner various collaterals about the Freshworks Products that Affiliate Partner may use for marketing activities in accordance with this Agreement. Freshworks may also, from time to time, conduct various webinars and other training programs as Freshworks deems fit to assist the Affiliate Partner in fulfilling its obligations under this Agreement.
(4) Intellectual Property Rights. Freshworks and its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Freshworks Products.
(5) Marketing: Freshworks hereby grants Affiliate Partner, a term based, territory based, revocable right to display, publicly perform and publish Freshworks trade name, logo or trademark (“Marks”) solely with regard to the promotion of the Freshworks Products to potential customers. While in exercise of rights under this license, it shall be the responsibility of Affiliate Partner to ensure that (a) the Marks are used only to denote the origin and ownership of Freshworks Products, (2) it will comply with Freshworks’ effective policies (current or updated version thereof) relating to the use of its Marks, and (c) it shall not materially modify the marketing materials provided by Freshworks in any way that causes Affiliate Partner to misrepresent the technical capabilities, features or functions of the Freshworks Products. It is clarified that Affiliate Partner will not, by virtue of the foregoing license, acquire any right, title or interest in Freshworks’ Marks or Products and all rights thereto are reserved by Freshworks.
(6) Confidentiality. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. To the extent the information shared under this Agreement constitutes personal data as defined under applicable data protection laws, both Affiliate Partner and Freshworks will comply with the same. Any personal data of the Affiliate Partner that Freshworks may receive shall be processed in accordance with its Privacy Notice which is included herein by reference.
(7) Term and Termination.
This Agreement will continue until either party terminates this Agreement. Freshworks may terminate this Agreement at any time without cause and without liability upon intimation to the Affiliate Partner. Affiliate Partner may terminate this Agreement upon sixty (60) days written notice to Freshworks. Freshworks may also immediately terminate this Agreement for (i) any breach of this Agreement by the Affiliate Partner, (ii) breach of Section 3 (i) of this Agreement, or (iii) bringing in spam leads or failing to bring in sufficient Qualified Referrals who turn into paying Customers during the term of this Agreement.
Effect of Termination. Upon termination of this Agreement, (a) Affiliate Partner agrees to cease all marketing and promotional activities and all further use of the Freshworks Product, (b) the parties shall return or confirm destruction of the other party’s Confidential Information provided pursuant to this Agreement, and (c) Affiliate Partner will not be entitled to any commission.
(8) Disclaimer: Freshworks may provide links or access to third party software or services. The use of any such third-party software and services are governed by the terms of the third-party provider and are binding on Affiliate Partner. Freshworks does not provide any warranties and has no liability or obligations to the Affiliate Partner, with respect to usage of such third-party software and services including the Account created by the Affiliate Partner.
(9) Indemnification. Affiliate Partner will indemnify and hold Freshworks and its affiliates harmless against any claim brought by a third party against Freshworks and its respective employees, officers, directors, and agents arising from or related to use of the Marks by Affiliate Partner in breach of this Agreement.
(10) Limitation of Liability
10.1 NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE,), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS ON EITHER PARTY’S LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
10.2 FRESHWORKS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE COMMISSION PAID TO AFFILIATE PARTNER BY FRESHWORKS IN THE 12 (TWELVE) MONTHS PRECEDING THE CLAIM.
THE FOREGOING STATES THE ENTIRE LIABILITY OF EACH PARTY WITH REGARD TO THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER.
11. Governing Law and Dispute Resolution. This Agreement shall be governed by the laws of the State of California, USA without regard to conflict of laws principles. Any dispute or claim arising out of or relating to this Form shall be determined by arbitration in San Francisco County, State of California, USA. The arbitration shall be administered by JAMS pursuant to its arbitration rules and procedures.
(i) Export Compliance and Use Restriction. Freshworks Products may be subject to U.S. (or other territories) export control and economic sanctions laws, rules, and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). Affiliate Partner agrees to comply with all the Export Control Laws as they relate to access to and use of the Freshworks Products. Affiliate Partner shall not refer Freshworks Products to any potential customers located in any jurisdiction in which the provision of the Freshworks Products is prohibited under the U.S. or other applicable laws or regulations, including, without limitation, a country or territory that is subject to comprehensive U.S. trade sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (a “Prohibited Jurisdiction”) and shall not refer Freshworks Products to any government, entity or individual located in any Prohibited Jurisdiction.
(ii) Injunctive Relief: The Affiliate Partner expressly agrees that Freshworks shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Affiliate Partner. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Freshworks may otherwise have under law.
(iii) Non-solicitation: During the Term and one (1) year thereafter, Affiliate Partner shall not, either directly or indirectly, (1) engage with a Freshworks Employee outside the scope of this Agreement; or (2) induce a Freshworks employee to terminate their employment. "Freshworks Employee" shall mean and include the Employees or consultants of Freshworks, its subsidiaries and affiliates.
(iv) No Assignment: Except to its affiliates and/or within group companies, neither Party shall assign any part of this Agreement or its respective rights or obligations under this Agreement without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
(v) Modifications: From time to time, Freshworks may modify this Agreement. Unless otherwise specified by Freshworks, changes become effective for Affiliate Partner after the updated version of this Agreement goes into effect.
(vi) Severability; No Waiver: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain in effect. Delay or non-exercise of any right under or provision of this Agreement by either party does not constitute a waiver of that right or provision of this Agreement.
(vii) Survival. Sections 4 (Intellectual Property), 5 (Marketing), 6 (Confidentiality), 9 (Indemnification), 10 (Limitation of Liability), 11 (Governing Law), 12 (vi) (Survival), 12 (vii) (Notices), 12 (ix) (Entire Agreement) and will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
(viii) Relationship between the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
(ix) Notices: All notices to be provided by either Party to the other under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by the parties.
(x) Entire Agreement: This Agreement, together with Freshworks’ Business Partner Standards of Conduct, Supplemental Terms (where applicable) constitutes the entire agreement and supersede any and all agreements between Freshworks and Affiliate Partner with regard to the subject matter hereof. In the event of a conflict between the Supplemental Terms, or this Agreement, the order of precedence will be, first, the Supplemental Terms, and then this Agreement.
13.1 “Account” means the account created by the Affiliate Partner with Vendor, which it uses to realize the commissions paid under this Agreement.
13.2 “Affiliate Program” means the program initiated by Freshworks where entities and persons who sign up as Affiliate Partners are required to market and refer eligible Freshworks Products to prospective customers in consideration for a commission from Freshworks.
13.3 “Customer” means a Qualified Referral that has entered into an agreement with Freshworks to procure the Freshworks Product pursuant to the Affiliate Partners marketing and promotional activities under this Agreement.
13.4 “Supplemental Terms” means the terms located at https://www.freshworks.com/company/affiliate-partner-agency/terms-and-conditions-supplemental/.
13.5 “Vendor” means the entity engaged by Freshworks for allowing Affiliate Partners to connect with Freshworks for the Affiliate Program.
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