Partner Program Terms and Conditions Brazil
By signing the Partner Program Agreement (“Partner Program Agreement”) the Partner agrees to be bound by the following terms and conditions (the “T&C”) which have been created to govern the Partner’s rights and obligations of being GetResponse’s partner in the GetResponse Partner Program. The Partner agrees as well to be bound by the GetResponse MAX Terms of Service which regulate the Partner’s rights and obligations related to the use of services known collectively as the GetResponse MAX Service, being part of the Partner Program (the “Program”).
The Partner ensures that he read the documents mentioned above carefully before signing the Partner Program Agreement. These T&C, the GetResponse MAX Terms of Service, and the Partner Program Agreement constitute a legal agreement (the “Agreement”) between GETRESPONSE TECNOLOGIAS BRASIL LTDA., a company registered in São Paulo, Brazil, at Rua Irmã Gabriela, 51, Cidade Monções, city of Sao Paulo, State of Sao Paulo, (“GetResponse”) and the partner (the “Partner”).
The Program is dedicated for a business-to-business service only; GetResponse cooperates with Partners who subscribe to the Service for purposes relating directly to their trade, business, or profession.
I. The Service
1.1 Under the Agreement, GetResponse undertakes to provide the Partner with a service consisting of access to and use of a web-based, SaaS (Software-as-a-Service) model platform, as made generally available to other customers that allows them to create, send and manage marketing campaigns, and host mailing lists on the GetResponse platform using tools such as the Newsletter Creator, the Landing Page Builder, Marketing Automation Software and others (the “Service”).
1.2 In consideration of the Service, the Partner shall pay the remuneration to GetResponse in accordance with the Agreement.
1.3 Within the Service, the Partner receives access to:
a) one main Partner account containing a unique sending identity and a database capable of storing and managing email lists and sending email campaigns (the “Main Account”);
b) the capability of automatic communication between the Service and the Partner’s system to run the Partner’s Contacts (defined below) database through the Service API;
c) individual Internet Protocol address(es) (IPs) allocated to the Partner’s sending channels at GetResponse.
1.4 The Main Account may be accessed only by use of Partner’s login credentials. The Partner is responsible for keeping his login credentials confidential and for all activity under Main Account.
1.5 GetResponse will provide technical support by the Customer Engineering Team only to the user of the Main Account and not to any of the Users of the Accounts.
1.6 The Partner may use the Service to send emails only to those recipients who have given the Partner their consent to add them to the Partner’s mailing list and have not subsequently withdrawn such consent (“Contacts”) unless the Partner has another valid legal basis to process Partner’s Contacts’ personal data within the Service.
2. Partner’s warranties
2.1 The Partner acknowledges and accepts that:
- the Partner is solely responsible for the conduct of Users of the GetResponse Main Account, Accounts, as well as customers using a Separate MAX Account, including their use of the Service in accordance with the GetResponse MAX Terms of Service and applicable laws, for the consequences of granting access and authorization to the GetResponse Main Account and Accounts and the data associated therewith, as well as for the payment of any fees accrued in connection with the use of the Separate MAX Account, GetResponse Main Account, and Accounts;
- creating Accounts for Users or Separate MAX Accounts does not create any legal relationship between GetResponse and such Users;
- the Partner is responsible for the activity of Users as for his own acts and omissions;
- GetResponse will create accounts only at the express request of the Partner;
- the Partner is solely responsible for assuring technical support to Account Users;
- any and all claims of Users related to the use or non-use of the Accounts, Separate MAX Accounts, and Services, as well as for their suspension and/or the termination of the Agreement shall be resolved solely by the Partner; the Partner is obliged to indemnify and hold GetResponse harmless from any losses, damages, costs and/or expenses resulting from such claims.
2.2 Notwithstanding the above, GetResponse reserves the right to suspend or close an Account at its own discretion, in particular when one of the below-mentioned reasons occurred:
- A User uses the Service for abusive or prohibited practices, as defined in the GetResponse Terms of Service;
- A User sends emails that GetResponse considers SPAM (determined on the basis of GetResponse algorithms and compliance procedures);
- A User breaches the rules on using GetResponse’s trademarks and other intellectual property.
2.3 Partner represents and warrants that his activity under the Agreement, including marketing and promotion of the Service, complies with any applicable laws. Partner undertakes to comply with legal provisions governing his business. In the event of a breach of applicable law, Partner shall relieve GetResponse Group from liability for any damages, financial penalties, and claims of third parties arising from this violation.
3. Agreement term and termination
3.1 Either Party may terminate the Agreement in accordance with the provisions set forth in the Partner Program Agreement. Unless the contrary provisions have been agreed upon in the Agreement or set by T&C or MAX Terms of Service, the Parties are not entitled to terminate the Agreement, which has been concluded for a definite period.
3.2 GetResponse reserves the right to block sending emails, suspend the MAX Account or Main Account (or part thereof – including each Account or add-on), and/or terminate Partner’s Agreement (which means shutting down the Main Account and Accounts) with immediate effect and without notice if GetResponse reasonably believes that Partner is in breach of any provision of the Agreement. Without limiting the foregoing, the activities specified below each constitute a violation of the Agreement and grounds for immediate termination or suspension of Partner’s Agreement and/or Main Account (including the Accounts) or part thereof.
3.3 Examples of activities regarded as violations of the Agreement:
3.3.1 failing to make payment when due;
3.3.2 using the Service for abusive or prohibited practices listed in these Terms of Service and the GetResponse MAX Terms of Service.
3.3.3 sending emails that we consider SPAM (determined on the basis of GetResponse algorithms and compliance procedures), in particular, if:
a. the Partner’s name or domain (which the Contacts can access by clicking links contained in emails sent by the Partner) is listed on the Spamhaus Register of Known Spam Operations (ROKSO, http://www.spamhaus.org/rokso/) or such a domain is listed on at least one of the following blacklists: URIBL (http://uribl.com/), SURBL (http://www.surbl.org/), SpamHaus DBL (http://www.spamhaus.org/dbl/) or ivmURI (http://dnsbl.invaluement.com/);
b. the Partner or a User is found spamming by SpamCop or any other anti-spam organization that reports to GetResponse spam trap hits thru Unsolicited Commercial Email reports;
c. the Partner breaches the rules of the use of our trademarks or other intellectual property;
d. the Partner provides inaccurate, unreliable, or false contact details, or fails to keep such contact details up-to-date;
e. the Partner assigns rights or obligations under the Partner Program Agreement to a third party without the prior consent of GetResponse.
3.3.4 Upon termination or expiry of the Agreement, all further rights and obligations of the Parties shall cease, except the rights and obligations indicated in the Agreement as still binding after its termination or expiration.
3.4. GetResponse may terminate the Agreement effective immediately upon written or email notice of such termination in the event of a material breach by the other Party. “Material Breach” shall include in particular: (i) any violation of sec 2.3., sec. 8, sec. 9, or sec. 10 of the T&C, (ii) any other breach that Partner has failed to cure within seven (7) calendar days after receipt of written or email notice from GetResponse, (iii) an act of gross negligence or wilful misconduct of Partner, or (iv) the insolvency, liquidation or bankruptcy of either Party.
3.5 Upon termination or expiry of the Agreement, all further rights and obligations of Parties shall cease, except rights and obligations indicated in the Agreement as still binding after its termination or expiration. Partner will only be entitled to the Commission calculated until the date of termination or expiration of the Agreement, however, if the Agreement is terminated under clause 2 of this paragraph, Partner loses the right to unpaid Commission.
4. Partner Status
- GetResponse and the Partner confirm that they are independent contractors, and the Partner does not obtain the status of an employee, an agent, or proxy or does not enter into any other business relationship with GetResponse. The Partner retains the right to perform other business activities as long as the Partner does not violate the provisions regarding prohibited practices listed in these Terms of Service and the GetResponse MAX Terms of Service.
- The Partner is not entitled to represent GetResponse or make binding declarations of will on behalf of GetResponse. The Partner is not entitled to contact media about GetResponse or its services, act as a spokesperson for GetResponse, or submit statements addressed to the media.
- The Partner conducts business activity on their own account and at their own risk, at the time and place set by the Partner. Subject to express provisions of the Agreement, the Partner is not subject to any instructions by GetResponse regarding the management of their activities as part of the performance of the Agreement, relating to the place or time of the undertaken activities. The Partner is solely responsible for all liabilities and costs related to their business and for any claims of third parties arising from the performance of the Agreement.
- The Partner undertakes to perform their obligations in accordance with the Agreement with due diligence.
- The Partner represents and warrants that their activity under the Agreement, including selling the GetResponse Service within Accounts, and the marketing and promotion of the Service, complies with any applicable laws. The Partner undertakes to comply with the legal provisions governing their business. In the event of a breach of applicable law, the Partner shall relieve GetResponse of liability for any damages, financial penalties, and claims of third parties arising from this violation.
a) Payments made by the Partner:
- The Partner confirms that GetResponse’s payment provision regulating their payments for the Service are comprehensively regulated in the Partner Program Agreement and the GetResponse MAX Terms of Service.
b) Payment of the Commission:
- The Commission is calculated and paid in the month following the month in which the Referred Customer paid the fee under the Service Agreement concluded with GetResponse.
- GetResponse will provide the Partner with a list of payments made by the Referred Customer by the 10th day of the month following the month in which the payment was made.
- The Partner shall deliver the invoice to GetResponse by the 15th day of each month.
- GetResponse reserves the right to withhold payment of the Commission until the Partner provides an invoice. Partner shall not be entitled to any interests for this period.
- The Commission shall be paid every month, within fourteen (14) days from the date of receipt of a correctly issued invoice. The Commission is paid by wire transfer to the bank account indicated by the Partner on the invoice. Partner is obliged to inform GetResponse about any changes of the data needed to make the transfer.
- GetResponse accepts electronic invoices which shall be sent to: email@example.com.
- If Referred Customer makes a pre-payment for the Service for a longer than monthly commitment, the Partner’s Commission will be calculated from the total pre-payment amount and paid to the Partner as a one-off payment.
- The Commission will be subject to all applicable governmental laws, regulations, and rulings, including withholding tax. GetResponse will not be responsible for any intermediary charges, transaction fees, and other costs or expenses accrued by Partner in connection with the payment of the Commission.
- The Commission is paid out only when the amounts earned in a given month exceed 50.00 USD. If on the last day of the month, the Commission balance is less than 50.00 USD, Commission will be carried over to the following month and paid when Partner’s balance exceeds 50.00 USD. Partner acknowledges and agrees that all sums payable under the Agreement are calculated jointly for the purpose of fulfillment of tax obligations.
- GetResponse reserves the power to suspend the right to earn the Commission, or withhold payments of the Commission already earned, if:
- Partner is not compliant with the terms and conditions of the Agreement,
- Partner receives the Commission for referrals made to himself, his corporation, employer or the like, or any other entity which controls, is controlled by, or is under common control with Partner (“no Commission for your own purchase”),
11. Any customer refunds, reversals, or credit card chargebacks owed to Referred Customer will result in an appropriate deduction of the Commission from the Partner’s balance. If the Commission has already been paid out, the appropriate amount will be deducted from the Partner’s next payment. If the Commission due for the following months is not sufficient to cover the required deduction, the Partner may be invoiced for the payment of the remaining amount.
6. Personal Data
- The Partner entrusts to GetResponse the processing of Personal Data necessary for the performance of the Agreement on terms specified in the Data Processing Addendum constituting an integral part of these Terms of Service.
- GetResponse and the Partner confirm they will inform the persons whose Personal Data is disclosed for the purpose of the cooperation between them that they will respectively process their Personal Data (i.e., including but not limited to the first name, last name, email address, telephone number) as Data Controllers, for the purposes of their legitimate interests (Art. 6, sec. 1 (f) of the General Data Protection Regulation), i.e., the execution of the Agreement, communication in the course of providing the Service, the establishment, exercise or defense of legal claims, and for evidence purposes, in accordance with their respective privacy policies.
- The Partner is obliged to comply with all applicable laws governing Personal Data processing, in particular, the Partner is obliged to obtain necessary consents from Data Subjects to process their Data for marketing purposes and to entrust their Data to GetResponse. The Partner authorizes GetResponse to process such Data as reasonably required for the purpose of exercising the rights and performing the obligations under the Agreement.
7. Reservation of rights
7.1 GetResponse reserves the right to take the following actions at any time, at its sole discretion and without liability:
a. to add services to the Agreement or to cease the provision of services included in the Agreement,
b. to modify the design of, change, or upgrade the Service or any part of the Service.
7.2 GetResponse will promptly inform the Partner of new software development relating to the Service.
7.3 At no time and under no circumstances shall this Agreement prohibit or limit GetResponse’s right to promote, market, and sell the Service, on a direct or indirect basis, via various sales channels, such as local websites, the GetResponse Affiliate Program, or other referral programs, or to appoint other partners to any referral program. GetResponse reserves any and all rights not expressly and explicitly granted under the Agreement.
8. Restricted activities
8.1 The Partner acknowledges that under the Agreement they will obtain access to know-how relating to the Service, its development, distribution, and promotion only for the proper performance of the Agreement and may not directly or indirectly use that information for its own benefit or the benefit of any third party.
8.2 The Partner may not undertake or support any activities the purpose or effect of which would be to circumvent, violate, diminish or weaken the contractual relations between GetResponse and any of its customers or interfere with their content. The Partner declares that they will not, directly or indirectly, persuade or convince GetResponse’s customers, employees, or co-workers to purchase products or services provided by entities directly or indirectly competing with GetResponse.
8.3 Without limiting the generality of the foregoing, the Partner shall not:
a) take actions that may be unlawful or harmful to the reputation of GetResponse or any services provided by it, including unfair, deceptive, or unethical acts;
b) make assurances regarding the functionality or features of the Service, other than those described in promotional materials created by GetResponse, or impose additional obligations on GetResponse due to guarantees or assurances regarding the Service provided by the Partner.
9. Intellectual Property
- Under the Agreement, the Partner will recommend or resell the GetResponse MAX and MAX² Service and present the offer regarding the Service to its potential customers. Due to this fact, during the term of this Agreement, GetResponse hereby grants a limited, royalty-free license to the Partner to use GetResponse’s trademarks only in connection with its marketing and sale of the Service and to carry out the obligations in the Agreement.
- The Partner shall take no action to impair GetResponse’s trademarks or any other mark used by GetResponse or to adversely impact the good name of GetResponse or its brand reputation.
- The Partner shall not attempt to register any trademarks, service marks, logos, brand names, trade names, domain names, email addresses, and/or slogans confusingly similar to the ones to which GetResponse is entitled, especially with the use of the word “GetResponse”. Should the Partner obtain any right, title, or interest in the aforementioned trademarks (or intellectual property confusingly similar to them), the Partner is obliged upon first demand of GetResponse to transfer any and all title, right, and interest of the said intellectual property to GetResponse.
- The trademarks, the Service, and all content included in GetResponse’s websites and the Service, such as text, graphics, logos, button icons, images, audio clips, and video tutorials, are the sole property of GetResponse or its third-party licensors and are protected by national and international trademark and copyright laws and may not be reproduced or transmitted in any form or by any means without the prior permission of GetResponse. No rights not explicitly granted herein shall be deemed granted to such materials.
- For the avoidance of doubt, the Service is the sole property of GetResponse, and nothing herein shall be deemed as a transfer of ownership or license of rights to the Service, or any intellectual property rights associated therewith.
- “Confidential Information” shall mean all information and material (irrespective of whether received directly from a Party or via its affiliates, suppliers, or from third parties acting on behalf of a Party), whether financial, technical, organizational, creative or otherwise, including but not limited to all secret and confidential information of, or relating to a Party or its affiliates, suppliers and customers, Leads, regardless of the form in which the information is supplied, together with know-how, details of products and services, software, non-public aspects of a Party or third party applications, algorithms, business methods and systems, customer lists, leads, contact information, all analyses, compilations, data, studies, methods and look and feel of presentations, product development plans, marketing plans, finances, costs, business opportunities, or other documents and materials prepared by a Party, and all such information, data or material prepared by a Party based on Confidential Information or containing Confidential Information, marked by the Party disclosing the Information as confidential or which confidential character clearly results from its content or the way of disclosure. Confidential Information (except for data concerning customers) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Party disclosing the Information, (ii) was known to the Party receiving the Information before its disclosure by the other Party without breach of any obligation under the Agreement, (iii) is received from a third party without breach of any obligation under the Agreement, (iv) was independently developed by a Party without breach of any obligation under the Agreement.
- The Party may use the Confidential Information only for the proper performance of the Agreement and may not directly or indirectly use Confidential Information for its own benefit or the benefit of any third party. Upon receipt of Confidential Information, the receiving Party may not use, disclose, or make any Confidential Information available in any other way and undertakes to protect it from disclosure, unauthorized use, or other illegal activity. In particular, the Partner has no right to use the list of customers acquired in any way from GetResponse Group to conduct activity not covered by the Agreement unless GetResponse within the cooperation with the Partner will recommend its customer Partner’s services.
- The Partner shall not disclose any potential customer’s or Lead’s data to any entity being the competitor of GetResponse Group.
- The Party receiving Confidential Information is entitled to disclose it only to employees or persons engaged on a different basis to which the disclosure is necessary to perform the Agreement. Before disclosing Confidential Information to such an employee or contractor, a Party is obliged to inform about the confidential nature of the information and to ensure that the employee or contractor signs a confidentiality agreement containing conditions consistent with the conditions specified in the Agreement, unless they are already bound by such agreement. Parties shall be liable for any breach of obligations under the Agreement by the above persons as for their own acts or omissions and within the limits of liability specified in the Agreement.
- Should the Party receiving Confidential Information breach the obligation of confidentiality indicated by the Agreement, in particular in case of disclosing Confidential Information to third parties contrary to the provisions of the Agreement, this Party undertakes to pay to the other Party a contractual penalty in the amount of PLN 20,000.00 (twenty thousand Polish zlotys) regardless of number and basis of claims.
- Unless otherwise agreed to in advance in writing by GetResponse, or except as expressly permitted in the Agreement, these rules apply during the term of the Agreement and for a period of one (1) year thereafter.
- The Partner confirms that GetResponse’s liability rules regarding the provision of the Service are comprehensively regulated in the GetResponse MAX Terms of Service.
- Under no circumstances shall GetResponse be liable to the Partner’s customers, Lead’s or any other entity affiliated with the Partner for damages related to the provision of the Service. The Partner is responsible for satisfying the claims of third parties arising from or relating to: (i) violation by the Partner or persons for whom they are responsible (such as employees, contractors, agents, representatives) of any applicable law or rule, third parties rights, as well as a material breach of the provisions of the Agreement; (ii) the Partner’s promotional activities relating to the Service. In the event of legal or administrative proceedings against GetResponse in connection with the Partner’s activities, the Partner will be required to hold GetResponse harmless against the claims or return to GetResponse the amount paid by GetResponse as a penalty.
- The total liability of each Party, irrespective of number and basis of claims, both contractual, tortious, or otherwise, is limited to USD 10,000.00 (ten thousand), subject to sec. 10.5. of these T&C. Notwithstanding the foregoing, the above limitations of liability do not apply to:
- claims under clause 11.2. of this paragraph;
- GetResponse Group’s claims against Partner for infringement of good name or rights to Intellectual Property;
- Partner’s financial obligations towards GetResponse;
- Partner’s breach of provisions stipulated in sec. 8 (Restricted activities) of these T&Cs.
12. Final Provisions
12.1 Any notices, including the termination notices of the Agreement, shall be made via email (by sending a scan of the signed notice of termination) or by use of the DocuSign service (or another similar service chosen by GetResponse).
12.2 Termination notices sent by the Partner to GetResponse should be addressed to: upgrades [at] getresponse.com
12.3 Termination notices sent by GetResponse to the Partner should be addressed to any email address of the Partner provided by the Partner to GetResponse (e. g. email address provided in the Partner Agreement or Main Account User’s email address).
12.5 The laws of the Federative Republic of Brazil shall apply exclusively to the Agreement and all matters related hereto. Any disputes arising out of or in connection with the Partner Program Agreement shall be submitted to the Brazilian courts with jurisdiction over the registered office of GetResponse.
12.6 In all matters not regulated in the Partner Program Agreement, the provisions of the T&C shall apply. In matters not regulated in these Terms of Service – the GetResponse MAX Terms of Service shall apply. If there is a conflict between or among the provisions of any of the documents, then unless otherwise expressly provided therein, the conflict will be resolved in favor of the conflicting provision set forth in the following order of precedence: (a) the Partner Program Agreement, (b) these T&C and (c) the GetResponse MAX Terms of Service.
This version of the T&C became valid on December 7th, 2022.