Company Partner Agreement

INTRO

This COMPANY PARTNER PROGRAM AGREEMENT (this “Agreement”) is by and between you (the “Company Partner”) and Kanarys, Inc., a Delaware corporation (“Kanarys”), dated as of the date of the most current Statement of Work (the “Effective Date”). 

WHEREAS, Kanarys through the use of the platform found at www.kanarys.com and other sites, mobile applications, software, native applications, social media sites (collectively, the “Kanarys Platform”) provides services to the Company Partner related to the collection, sharing, and analyzing of information shared by individual users on the Kanarys Platform which includes, but is not limited to, information related to workplace culture, employee benefits, demographics, surveys, and reviews; and  

WHEREAS, the Company Partner desires to retain Kanarys to provide certain services defined herein and Kanarys is willing to perform such services upon the terms and conditions hereinafter set forth. 

NOW THEREFORE, in consideration of the mutual promises made herein, the receipt and sufficiency of which are hereby acknowledged, Kanarys and the Company Partner (each, a “Party” and collectively, the “Parties”) further agree as follows: 


DEFINITIONS

  1. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. 

  1. “Agreement” has the meaning set forth in the Preamble. 

  1. “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in Dallas, Texas are authorized or required by law to close. 

  1. “Company Partner” has the meaning set forth in the Preamble. 

  1. “Contract Manager” means the primary contact for the Company Partner with respect to this Agreement (and related Statement of Work(s)) and who will have the authority to act on behalf of the Company Partner with respect to matters pertaining to this Agreement. 

  1. “Defaulting Party” has the meaning set forth in Section 5.3. 

  1. “DEI” means diversity, equity and inclusion. 

  1. “Kanarys” has the meaning set forth in the Preamble. 

  1. “Kanarys Platform” has the meaning set forth in the Recitals. 

  1. “Launch Date” means the date on which the Kanarys Platform and Company     Profile Page (as defined in the Statement of Work) becomes accessible to the Company Partner. 

  1. “Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. 

  1. “Party” or “Parties” has the meaning set forth in the Recitals. 

  1. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity. 

  1. “Review Period” has the meaning set forth in Section 5.2. 

  1. “Services” has the meaning set forth in Section 2.1. 

  1. “Statement of Work” means each Statement of Work entered into by the Parties hereto. 

  1. “Term” has the meaning set forth in Section 5.1. 


SERVICES

  1. Kanarys shall provide the services to the Company Partner as described in detail in each Statement of Work (the “Services”) in accordance with the terms and conditions in this Agreement. 

  1. Each Statement of Work shall include the following information, if applicable: 

    1. a detailed description of the Services to be performed pursuant to the Statement of Work; 

    2. the date upon which the Services will commence and the term of such Statement of Work; 

    3. the name of and contact information for the Contract Manager;  

    4. the fees to be paid to Kanarys under the Statement of Work and related invoice/payment schedules; and  

    5. any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Statement of Work. 


REPRESENTATIONS AND WARRANTIES

  1. Kanarys and the Company Partner hereby represents and warrants to the other Party, which representations and warranties shall survive the execution and delivery of this Agreement and the carrying out of the transactions herein contemplated, as follows:

    1. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation, organization or chartering; 

    2. it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; 

    3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and 

    4. when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. 

  2. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT. 


NEW SERVICES

  1. If the Company Partner wishes to expand the scope or performance of the Services, it shall submit details of the requested change to Kanarys in writing.  

  1. Promptly after receipt of the written request, Kanarys shall issue a new Statement of Work to the Company Partner.  Neither Party shall be bound by any new Statement of Work unless mutually agreed upon in writing in accordance with Section 7.8. 


TERM; TERMINATION

  1. This Agreement shall be effective as of the Effective Date, and the Company Partner Annual Subscription (as defined in the Statement of Work) shall be effective as of the Launch Date and shall automatically renew for successive one (1) year terms (each such period, a “Term”) until and unless either Party gives prior written notice to the other Party at least ninety (90) days prior to the expiration of any Term.   

  1. As an early adopter of the Kanarys Platform, for the first six (6) months of the initial Term (the “Review Period”), the Company Partner hereby agrees to test and evaluate the Kanarys Platform and report to Kanarys, as soon as practicable and in accordance with the instructions provided by Kanarys, any perceived defects or issues discovered on the Kanarys Platform as well as information related to the overall usefulness and functionality of the Kanarys Platform.  Kanarys shall be free to use such feedback, comments or suggestions provided by the Company Partner during the Review Period to make improvements to, and iterate versions of, the Kanarys Platform. 

  1. At any time, either Party may terminate this Agreement for a material breach by the other Party (the “Defaulting Party”), effective upon written notice to the Defaulting Party, if the Defaulting Party:  

    1. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or 

    2. (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) Business Days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 


FEES AND EXPENSES

  1. In consideration of the provision of the Services by Kanarys and the rights granted to the Company Partner under this Agreement, the Company Partner shall pay the fees under this Agreement as set forth in the applicable Statement of Work. Payment to Kanarys of such fees shall constitute payment in full for the performance of the Services. 

  1. Kanarys shall issue an invoice to the Company Partner as set forth in the Statement of Work. 


MISCELLANEOUS

  1. Each Party shall, upon the reasonable request, and at the sole cost and expense, of the other Party, reasonably promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement. 

  2. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. 

  3. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.3). 

  4. This Agreement together with all Statements of Work constitute the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.  In the event of any conflict between the terms and provisions of this Agreement and those of any Statement of Work, this Agreement shall take precedence.    

  5. Neither Party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, that, upon prior written notice to the other Party, either Party may assign this Agreement to an Affiliate of such Party or to a successor of all or substantially all of the assets of such Party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 

  6. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. 

  7. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. 

  8. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by the Parties. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 

  9. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 

  10. This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city and County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.  

  11. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. 

  12. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party. If to Kanarys: 

    1. Kanarys, Inc. 

      8350 N Central Expy, Suite M1013

      Dallas, Texas 75201 

      Attention:  General Counsel 

      Email:  accounts@kanarys.com 

      If to the Company Partner: 

      To the address/contact information set forth in the most current Statement of Work. 

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