PARTNER TERMS
Effective as of May 23, 2022
theSkoop, Inc. (“Skoop”, “we” or “us”) is pleased to include you (“Partner” or “you”) in our roster of Skoop Certified Partners on the Skoop iPhone mobile application (“App”).
THE SERVICES.
Non-Exclusive Listing. Skoop shall include Partner’s name and business information (the “Listing”) in the App. Partner’s services and pricing menu shall be pulled in through the integration with your scheduling system. Partner shall be solely responsible for the content that it desires to be included in its Listing. Skoop does not provide access to the Skoop Community on an exclusive basis for any Partner in any industry or specialty. Partner represents and warrants that all information contained in the Listing is true, complete, and accurate.
Bookings. App users (“Skoop Members”) shall book Partner’s services on our App through integrated booking (“Bookings”). Partner agrees to grant any required access to Partner’s booking system so that Skoop employees or contractors may perform integration of the systems. Partner shall compensate Skoop for each Booking in accordance with Section 2 of this Agreement.
No Advertising. Skoop does not provide paid advertising or placement on the App or otherwise in the Skoop Community.
Cancellation Fees. Skoop Members shall be subject to cancellation fees, if applicable, if they fail to appear at their appointment or cancel after Partner’s cancellation deadline. Skoop shall give notice to the Skoop Members that they are subject to Partner’s cancellation policy and related charges. Skoop shall pay out Partner the full amount of the cancellation fee if Skoop Member late cancels.
Territory. Partner’s listing shall be included on the App for the New York Region. Partner may elect to be included in additional regions as the App expands outside of New York.
Compliance. Each Party will comply with all local, state, and federal laws and regulations governing its actions under this Agreement.
2. FEES AND PAYMENT.
Referral Fees. Partner shall pay Skoop a Referral Fee for each Skoop member that books a service through our Skoop App. The “Referral Fee” shall be equal to 20% of the Total Fee (meaning the total service cost, not including tax or tip).
Consultations. If the initial appointment for a Skoop Member is a free consultation or complimentary service by Partner (a “Consultation”), then no Referral Fee shall be paid.
Payment. Skoop shall pay Partner automatically through Stripe (for the Total Fee minus the Referral Fee) within 24-48 hours of the appointment.
3. INTELLECTUAL PROPERTY
Partner Intellectual Property. Partner retains all rights to its marketing materials and other proprietary information contained in the Listing, including, but not limited to, trademarks, service marks and other intellectual property.
Skoop Intellectual Property. Skoop retains all rights to the intellectual property contained in the Skoop Community, including the App, which includes, but is not limited to, all reviews, and information related to Skoop Member bookings through Skoop.
4. CONFIDENTIALITY
Confidential Information. All information furnished by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) and its designated representatives, whether orally or by means of written material, including without limitation plans, specifications, financial or business data or projections, or any other forms of business information: (a) shall be deemed proprietary and shall be held by in strict confidence (“Confidential Information”); (b) shall not be disclosed or revealed or shared with any other person except those individuals or entities specifically authorized by the Party in advance; and (c) shall not be used other than for purposes of, and in connection with, the performance of services under this Agreement. Confidential Information shall include, but is not limited to, information provided to Skoop by Skoop Members and other information gathered by Skoop about such Members (“Member Information”) and the terms of this Agreement, and the pricing hereunder.
Exceptions. Confidential Information will not include information that the receiving Party can demonstrate: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the receiving Party; (ii) was known by the receiving Party prior to receiving such information from the disclosing Party and without restriction as to use or disclosure; (iii) is rightfully acquired by the receiving Party from a third Party who has the right to disclose it under the circumstances and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without access to any Confidential Information of the disclosing Party.
Return of Disclosed Material. Receiving Party shall promptly return all Disclosed Material and any copies thereof shall upon request of any designated representative of such Party, and in any event shall be returned by other Party within thirty (30) days of expiration or termination of this Agreement.
Legal Compulsion. If a Party should receive any legal request or process in any form seeking disclosure of, or if a Party should be advised by counsel of any obligation to disclose, such information, such Party shall provide the other Party with prompt prior notice of such request or advice so that other Party may seek a protective order or pursue other appropriate remedies to protect the confidentiality of the information. If such protective order or other remedy is not obtained, the Party agrees to furnish only that portion of the information which is legally required to be furnished and, in connection with other Party, to use all reasonable efforts to assure that the information is maintained in confidence by the Party to whom it is furnished.
Equitable Relief. In the event of breach of any of the provisions of this article by a Party, the other Party shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or equity.
Survival. Each Party agrees that the obligations under this Article are continuing and shall survive the expiration or termination of this Agreement.
HIPAA Compliance. To the extent that Partner is covered under the Health Insurance Portability and Accountability Act (“HIPAA”), the handling of any information that could be considered Protected Health Information (“PHI”) shall be governed by the terms of the Business Associate Addendum, attached hereto as Exhibit A, and incorporated herein by reference.
5. NON-DISPARAGEMENT
Non-Disparagement. Subject to applicable law, each of the parties covenants and agrees that neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors, will in any way publicly disparage, whether through oral, writing or on any social media platforms, call into disrepute, defame, slander or otherwise criticize the other parties or such other parties' subsidiaries, affiliates, successors, assigns, officers (including any current officer of a party or a parties' subsidiaries who no longer serves in such capacity following the execution of this Agreement), directors (including any current director of a party or a parties' subsidiaries who no longer serves in such capacity following the execution of this Agreement), employees, shareholders, agents, attorneys or representatives, or any of their products or services, in any manner that would damage the business or reputation of such other parties, their products or services or their subsidiaries, affiliates, successors, assigns, officers (or former officers), directors (or former directors), employees, shareholders, agents, attorneys or representatives.
Reviews. Nothing contained herein shall prohibit Skoop from posting reviews, or impact Skoop’s ability to curate Skoop Member reviews, of Partner or its Services, even reviews that are negative or critical or that may negatively impact the business or reputation of Partner.
6. TERM AND TERMINATION.
Term. This Agreement begins on the Effective Date, and, unless terminated earlier in accordance with this Section 6, continues for a period of one (1) year and will automatically renew for one (1) year periods unless terminated pursuant to this Section 6 (the “Term”).
Termination. Each Party reserves the right to terminate this Agreement: (i) immediately and without notice in the event that the other Party breaches any provision of this Agreement or any other related agreement; or (ii) upon providing the other Party with at least three (3) days written notice of its intent to terminate this Agreement, for any or no reason. Termination of this Agreement will not affect any other right or remedy at law or in equity of either Party.
Post-Termination. Promptly upon expiration or termination of this agreement, Skoop shall cease booking appointments for Partner and shall disable any integrated booking that it may be providing. The rights and obligations of the Parties contained in the following provisions of this Agreement will survive expiration or termination of the Agreement: 3, 4, 5, 6.3, 7, 8, 9, 10, and any provisions that specifically state they survive the termination of this Agreement.
7. DISCLAIMER OF WARRANTY.
NEITHER PARTY OFFERS ANY WARRANTY UNDER THIS AGREEMENT. BOTH PARTIES DISCLAIM TO THE EXTENT ALLOWED BY APPLICABLE LAW ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES THAT ITS SERVICES WILL BE ACCURATE OR AVAILABLE.
8. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 OR A BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, REVENUE, OR PROFITS), COSTS, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, OR NEGLIGENCE. EXCEPT FOR THE PARTIES INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 OR A BREACH OF SECTION 4, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY EXCEED THE GREATEST AMOUNT OF THE FEES PAID OR OWED BY EITHER PARTY UNDER THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION FORMED A BASIS FOR ENABLING EACH PARTY TO OFFER AND ACCEPT THE REFERRAL FEES HEREIN
9. INDEMNIFICATION
Mutual Indemnification. In addition to Section 1.1, each Party (the “Indemnifying Party”) agrees to indemnify, defend (or settle), and hold harmless the other Party (the “Indemnified Party”), its officers, directors, and employees from any and all third-party liabilities claims, actions, damages, arbitration fees and expenses, costs, and attorney’s fees incurred by the Indemnified Party resulting from: (a) the Indemnifying Party’s breach of this Agreement; or (b) infringement of third-party intellectual property rights by the Indemnifying Party’s Services or the information the Indemnifying Party supplies to the Indemnified Party or makes available to any third party, including but not limited to the Indemnifying Party’s data and the content of the Indemnifying Party’s websites related to this Agreement.
Partner Services. Partner shall indemnify Skoop for any third-party claims arising out of Partner’s performance of the services to any Partner customer, including any Referred Customers.
Member Information. Skoop shall not be liable to Partner for any damages arising out of incorrect or inaccurate Customer Information provided to Skoop by Members or any third party.
10. GENERAL
Independent Contractor. Partner and Skoop acknowledge that in providing the Services under this Agreement, each Party is acting solely as an independent contractor and not as an agent of other Party. Neither Party has the authority to bind the other Party to any third person or otherwise to act in any way as the representative of the other Party unless otherwise expressly agreed to in writing signed by the other Party. Nothing contained in this Agreement is intended to give rise to a partnership or joint venture between Skoop and Partner or to impose any of the duties or responsibilities of partners or joint venturers. Except as so authorized, each Party agrees to indicate to any third party or Referred Customer who is or may be doing business with other Party, as appropriate, that such Party has no authority to bind the other Party.
Controlling Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Any suit hereunder will be brought solely and exclusively in the federal or state courts located in New York, New York, and Partner and Skoop each hereby submits to the personal jurisdiction thereof.
Force Majeure. Neither party will be liable to the other party for any failure of, or delay in, its performance hereunder due to causes beyond its reasonable control, including without limitation, acts of God; catastrophic phenomena such as fire, flood, drought, earthquake, or other natural calamity; acts of government, war, civil commotion, insurrection, riot or revolution, strike, work stoppage or slowdown, lockout or other labor dispute; lack or shortage of, or inability to obtain, any labor, machinery, materials, fuel, supplies or equipment from normal sources of supply; weather; or damage or destruction to plant and/or equipment.
Waiver. No consent or waiver by Partner with respect to any provision of this Agreement shall be valid effective unless made by a duly authorized officer of Partner.
Assignment. No undertaking or rights of a Party pursuant to this Agreement may be assigned by such Party to any third party without the express, written consent of the other Party in advance. This Agreement shall ensure to the benefit of each Party, its affiliates, successors and assigns.
Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement; rather, the entire Agreement shall be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of each Party shall be construed and enforced accordingly.
Entire Agreement. This Agreement constitutes the entire agreement between Partner and Skoop. The Agreement supersedes all prior communications, representations or agreements, oral or written, with respect to the subject matter hereof and has been induced by no representations, statements or agreements other than those herein expressed. No agreement hereafter made between the Parties shall be binding on either Party unless reduced to writing and signed by an authorized officer of the Party sought to be bound thereby.