Partnership Terms of Service
Updated: 2 March 2022
This Partnership Agreement (“Agreement”) between Be Chipper, Inc. (“Chipper”) with its office located at 1406 Hether Street, Austin, TX 78704, and ________________________________ (“Partner”) with its office located at __________________________________, collectively, each, a (“Party”) and collectively, the (“Parties”), is made effective as of the later of the dates appearing with the authorized signatures set forth below (the “Effective Date”).
WHEREAS, Partner wishes to have access to and utilize Chipper’s proprietary interactive mobile app and platform, which is designed to allow student loan borrowers to explore federal repayment and forgiveness options, automatically enroll in plans/programs, and chip away debt faster through chipping features such as Round-Ups; and
WHEREAS, Chipper is willing to provide access to its platform and Services to Partner based on this description; and
WHEREAS, the Memorandum of Understanding attached as Exhibit A reflects the description, schedule, fees and charges associated with this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the parties agree to be legally bound as follows:
[1] AGREEMENT. This Agreement, along with any accompanying and subsequent Memorandum of Understanding (each an “MOU”) shall define the parties’ obligations and liabilities with respect to the Services provided by Chipper to Partner. This Agreement is a material part of each and every MOU now or hereafter executed between the parties. In the event of a conflict between the terms of this Agreement and any MOU, the terms of the MOU shall control. With the exception of the MOU’s, no other agreements or policies shall be incorporated by reference into this Agreement, including without limitation Partner’s privacy policy, acceptable use policy and/or terms and conditions.
[[2] TERM AND TERMINATION. This Agreement shall remain in effect for so long (“Term”) as any MOU is outstanding or for as long as Chipper provides services to Partner. This Agreement may be terminated (i) by either Party with or without cause upon thirty (30) days’ prior written notice to the other Party, or (ii) If either Party breaches any provision of this agreement and if such breach is not cured within thirty (30) days after receiving written notice from the other Party specifying such breach in reasonable detail, the non-breaching Party shall have the right to terminate this agreement by giving written notice thereof to the Party in breach, which termination shall go into effect immediately on receipt.
Termination of this Agreement shall not relieve Partner from its Payment obligations that have accrued up to and through the date of termination. Upon termination, all amounts due to Chipper up to and through the date of termination shall be paid to Chipper in the next billing cycle. Further, notwithstanding any provision of the Agreement or any MOU to the contrary, the Parties may not restrict, deny, discontinue, or terminate the other Party’s access, privileges, accounts, or licenses, without giving each other at least thirty (30) business days’ prior written notice.
In the event this Agreement is terminated by Partner less than thirty (30) days’ prior written notice to Chipper, then Chipper shall be entitled to receive a lump sum payment from the Company, within seven (7) days after such termination, equal to one-hundred (100%) percent of Partner’s amount owed to Chipper that has accrued up to and through the date of termination.
Except as otherwise provided in this Agreement, the obligations of each Party will end upon the termination of this Agreement. Termination of this Agreement will be without prejudice to other rights or remedies of any Party under this Agreement or applicable law, including, without limitation, any remedies for a breach of this Agreement prior to such termination.
Except as otherwise provided in this Agreement, the obligations of each Party will end upon the termination of this Agreement. Termination of this Agreement will be without prejudice to other rights or remedies of any Party under this Agreement or applicable law, including, without limitation, any remedies for a breach of this Agreement prior to such termination.
[3] RELATIONSHIP OF PARTIES. It is expressly understood and agreed that in the performance of Services under this Agreement, Chipper shall, at all times, be an independent contractor with respect to the Partner, and not an agent, officer or employee of the Partner. Any personnel performing services under this Agreement on behalf of Chipper shall at all times be under Chipper's exclusive direction and control. Further, it is expressly understood and agreed by the Parties that nothing contained in this Agreement is intended to create a joint venture, partnership, association or other affiliation or like relationship between the Parties. In no event shall either Party be liable for the debts or obligations of the other Party.
Chipper understands that it will not be treated as an employee for Federal tax purposes and that Chipper shall be responsible for any taxes and/or assessments imposed on account of the payment of compensation to, or the performance of services by Chipper pursuant to this Agreement, including, without limitation, any unemployment insurance tax, federal and state income taxes, federal Social Security (FICA) payments, and state disability insurance taxes. Chipper shall not be entitled or eligible to receive workman’s compensation insurance, disability or unemployment insurance benefits or any other employee benefits offered by the Partner to its employees. Chipper shall not be required to notify Partner in the event of a material change in its business practices or strategy.
[4] SERVICES. Partner hereby agrees to engage Chipper to serve as strategic partner of Partner, providing Partner with premium services (the "Services") including, but not limited to: (i) access to Chipper's automatic enrollment tool, (ii) access to Chipper’s Round-Up tool, (iii) access to features for all active Partner employees, and (iv) preparation of a quarterly impact report of engagement metrics as agreed upon by both Parties. Such engagement metrics shall include, but not be limited to a total number of employees using Chipper’s Services, metrics for forgiveness, lower monthly payments, and chipped away service agreements.
Partner shall provide Chipper with access to Partner's premises including, without limitation, online and offline properties, proprietary materials, its employees and sub-consultants, and other non-employee resources to enable Chipper to perform its services hereunder.
Each Party may use the other Party’s name and logo to identify the Party as a strategic partner or as set forth in this Agreement. A Party’s use of the other Party’s name and logo does not create any ownership right therein and all rights not granted to a Party are reserved by the other Party.
Each Party shall perform only those functions set forth in this Agreement or otherwise agreed upon by both parties, and use its best efforts, skill and sufficient time and attention to perform its duties, responsibilities, and obligations set forth in this Agreement.
[5] OWNERSHIP OF INTELLECTUAL PROPERTY; PROPRIETARY MATERIALS. All intellectual property and related material, including any trade secrets, moral rights, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design and trade name (the "Proprietary Materials") that is developed or produced under this Agreement, is a "work made for hire" and will be the sole property of Chipper. The use of the Proprietary Materials by Partner will not be restricted in any manner. Partner may not use Proprietary Materials for any purpose other than that contracted for in this Agreement except with the written consent of Chipper.
Partner acknowledges that Chipper, from time to time, may have agreements with other parties which impose obligations or restrictions on Chipper regarding proprietary rights made or developed during the course of work thereunder or regarding the confidential nature of such work. Partner agrees to be bound by all such obligations and restrictions made known to it in writing by Chipper and to take action as may be reasonably required to discharge the obligations of Chipper thereunder.
[6] RETURN OF PROPRIETARY MATERIALS. Upon the termination of this Agreement, Partner will deliver all Proprietary Materials and similar repositories of Confidential Information, and any other documents of a confidential nature belonging to Chipper that (i) are in Partner’s possession or under Partner’s control and (ii) that are Chipper’s property or relate to Chipper’s business. Partner further agrees that upon termination of this Agreement, Partner’s employees and sub-consultants shall not retain any Proprietary Materials and similar repositories of Confidential Information, and any other documents of a confidential nature belonging to Chipper.
[7] ENGAGEMENT FEES; PAYMENT TERMS. The Parties hereby agree to the payment terms found on Exhibit A attached hereto (the “Memorandum of Understanding” or “MOU”).
Partner shall be liable for all payments owed to Chipper for Services rendered (“Payment”) under this Agreement and applicable MOU’s and shall make timely payments to Chipper regardless of any cleared or uncleared funds, offsets, or credits. Partner will be invoiced at a regular, ongoing frequency as agreed upon by the Parties, and invoices submitted by Chipper to Partner are due within thirty (30) days of receipt. Chipper shall not be responsible or liable for any taxes (including fees and penalties) incurred by Partner. Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars).
The amounts paid to Chipper hereunder have been determined by the Parties in good faith and through arms-length negotiation and are intended to be based on fair market value for the services rendered by Chipper.
[8] PENALTIES FOR LATE PAYMENT. Any unpaid Payment will become overdue thirty (30) days after payment is due and shall be subject to a late fee equal to the lesser of one percent (1%) per month or the maximum amount allowable under law, compounded monthly. Where payment is made by credit card, Partner expressly agrees not to charge back or dispute any amounts billed. Any and all transaction, wiring or processing fees imposed upon Chipper by a credit card company or either Party's bank will be reimbursed by Partner. Chipper shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees and court costs) incurred in attempting to collect payment from Partner. Chipper shall have the right to set-off against past due payments any amounts owed to Partner or its subsidiaries or affiliates by Chipper under any separate agreement entered into between Chipper or its affiliates and Partner or its affiliates.
Partner’s failure to make timely payments under this Agreement may be considered by Chipper a material breach of this Agreement by Partner, which may result in suspension of Services or termination of this Agreement by Chipper. Partner will be responsible for any and all taxes levied on transactions under this Agreement other than taxes based on Chipper’s revenues.
[9] DISCLOSURE. Each Party is required to disclose any outside activities or interests thatconflict or may conflict with the best interests of the other Party. Prompt disclosure is required under thisparagraph if the activity or interest is related, directly or indirectly, to other relationships that may conflict with this Agreement. Chipper is not an Attorney, nor licensed to practice law. Discussions can skirt legal issues and should be interpreted as opinions, or things to consider. If legal advice is desired, consult an Attorney. Chipper is not a CPA, nor a Tax Professional. Discussions can and do involve accounting and presentation of financial results and projections. When Tax advice is requested, contact a CPA or Tax professional. Partner, and employees of Partner, maintains control of all decisions and should reject advice that they do not agree with. Chipper can not control future events, therefore cannot be responsible for long term outcomes.
[10] REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party that: (i) the signatory has the full right and authority to bind such Party; (ii) it has the full corporate or organizational right, power and authority to enter into this Agreement, to make the warranties and representations made herein, and to perform the acts required of it; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties, do not and will not violate or conflict with any other agreement to which it is a Party or by which it is otherwise bound, or any applicable law, rule or regulation; and (iv) each Party shall render all services to the other Party in a professional and commercially reasonable manner.
Chipper has previously been and continues to engage in partnerships with Other Partners. For many or all Other Partners, Chipper has confidentiality obligations which require Chipper to maintain the confidentiality of information pertaining to such Other Partners. Chipper represents and warrants that it shall not knowingly violate such confidentiality restrictions in the performance of its duties hereunder. Partner represents and warrants that it shall not expect or demand that Chipper violate or attempt to violate such confidentiality restrictions. Chipper represents and warrants that Chipper’s engagements by Other Partners do not prohibit or restrict its ability to enter into this Agreement.
[11] WARRANTIES; LIMITATIONS ON LIABILITY. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, AVAILABILITY, RELIABILITY, SECURITY, PERFORMANCE OR ADEQUACY OF THE SERVICES, AND NEITHER PARTY MAKES ANY EXPRESS, STATUTORY OR IMPLIED REPRESENTATIONS OR WARRANTIES, AT LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NO ENCUMBRANCES, SYSTEM INTEGRATION, ACCURACY, WORKMANLIKE EFFORT AND WARRANTIES ARISING THROUGH COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, AND BOTH PARTIES HEREBY EXPRESSLY DISCLAIM ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHIPPER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CHIPPER’S OBLIGATIONS UNDER THIS AGREEMENT.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR LOSS OF USE OR PROFITS OR OTHER COLLATERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MOU, WHETHER SUCH CLAIMS ARE FOUNDED IN TORT OR CONTRACT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED THE ACTUAL AMOUNTS PAID BY PARTNER TO CHIPPER UNDER THE AGREEMENT IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM ARISES.
[12] INDEMNIFICATION. Each Party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party (the “Indemnified Party”), its parent, subsidiaries and their respective officers, directors, employees, agents, shareholders, attorneys, successors, and permitted assigns, from any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) actually incurred as a direct result of any third Party claim or government inquiry or investigation (collectively, “Losses”) arising from or relating to: (i) any actual breach of the terms of this Agreement or any MOU; or (ii) any violation of applicable law, rule, or regulation by the Indemnifying Party including the actions of the Indemnifying Party’s employees, contractors or other agents. If a Party becomes aware of any matter it believes is indemnifiable hereunder, it shall provide prompt written notice of such matter to the other Party. Each Party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the other Party hereunder. No settlement may be consummated without the express written authorization of the Indemnified Party. This indemnification will survive the termination of this Agreement.
[13] CONFIDENTIALITY. Confidential information (the "Confidential Information") refers to any and all affiliates and sub-consultants, customers, vendors, finances, properties, methods of operation, computer programs, documentation, Trade Secrets, business affairs, and proprietary information of third parties in the possession of each Party or any of its affiliates, and other such information, whether written, oral, or otherwise. All written and oral information and material disclosed or provided by each Party to the other Party under this Agreement is Confidential Information regardless of whether it was provided before or after the Effective Date of this Agreement or how it was provided to a Party.
Trade Secrets (the "Trade Secrets") refer to any formula, concept, pattern, processes, designs, device, software, systems, price lists, customer lists, vendor or supplier lists, training manuals, marketing or sales or service plans, business plans, marketing plans, financial information, or compilation of information which is used in a Party business or in the business of any of its affiliates.
Confidential Information and Trade Secrets shall not include, and the foregoing shall not apply to, information that is (i) generally available to the public other than a result of a disclosure by a Party; (ii) available to a Party on a non-confidential basis prior to the disclosure by the other Party; (iii) available to a Party on a non-confidential basis from a source other than the other Party or its affiliates, provided, however, that such source is not bound by a confidentiality agreement; or (iv) required to be disclosed by either Party by law or pursuant to court order.
A Party receiving Confidential Information (“Receiving Party”) shall not at any time disclose any Confidential Information of the disclosing Party (“Disclosing Party”) to any third Party (including without limitation a governmental entity and in such case only after notice is provided to the Disclosing Party as set forth below) except to its affiliates and to each of their respective employees and consultants as is reasonably necessary in connection with the exercise of its rights and obligations under this Agreement.
Both parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief without the necessity of posting a bond or other security. In the event Confidential Information must be disclosed pursuant to judicial order, requirement of a government agency or by operation of law, the Receiving Party agrees that it will provide the Disclosing Party with prompt notice of such requirement to enable the Disclosing Party to seek an appropriate protective order or to take steps to protect the confidentiality of such Confidential Information and will cooperate with the Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure, and in the event such protection is not obtained or the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party agrees that it will disclose only the minimum portion of the Confidential Information that it is legally required to disclose.
The obligations of confidentiality will apply during the term of this Agreement and will end on the termination of this Agreement.
[14] GOVERNING LAW, JURISDICTION & VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, U.S.A., without regard to its choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Travis County, Texas, for all matters arising from or relating to this Agreement. Any claim under this Agreement, other than for indemnity and defense as provided herein, must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred.
[15] NOTIFICATION OF LEGAL ACTION. Each Party will immediately notify the other Party of any current, impending, or potential formal legal action against it by a third party for matters in connection with this Agreement, including without limitation a governmental inquiry or investigation, for example by the Federal Trade Commission or a state attorney general.
[16] PUBLICITY. Except as otherwise provided in this Agreement, neither Party may use the other Party’s name, trademark or logo without the express prior written consent of the other Party.
[17] EXHIBITS. All exhibits referred to in this Agreement and attached hereto are hereby incorporated in this Agreement by reference.
[18] ASSIGNMENT. Neither Party may assign any of its rights or obligations under this Agreement without the express prior written consent of the other Party, except pursuant to a merger, consolidation or sale of all or substantially all of such Party’s assets, provided that the surviving or transferee entity in such merger, consolidation or sale assumes all of such Party’s obligations hereunder and agrees to be bound by this Agreement.
[19] FORCE MAJEURE. With the exception of Payment obligations, neither party shall be deemed in default of this Agreement or any MOU to the extent that performance of its obligation is delayed or prevented by reason of any act of God, fire, natural disaster, accident, riot, act of government, shortage of materials or supplies, or any other cause beyond such Party’s reasonable control; provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition to the other Party.
[20] REMEDIES. Except as otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
[21] WAIVER. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
[22] SURVIVAL; SEVERABILITY. Any obligations which expressly or by their nature are to continue after termination of this Agreement shall survive and remain in effect after termination. In the event any portion of this Agreement is declared invalid, illegal or unenforceable by any court of competent jurisdiction, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect.
[23] NOTICES. Unless otherwise provided herein, all notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is delivered personally or recognized national overnight courier service, or at the time delivery is refused, or three business days after mailing if sent by registered or certified mail (return receipt requested) and in each case addressed as follows or to such other address as either Party shall designate in written notice to the other Party:
Partner Name:
Partner Address:
Chipper Name: Be Chipper, Inc.
Chipper Address: 1406 Hether Street, Austin, TX 78704
[24] CONSTRUCTION. Each Party and its counsel have participated fully in the review, revision and negotiation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement.
[25] ENTIRE AGREEMENT; MODIFICATION. This Agreement, all Memorandums of Understanding, Schedules and Exhibits hereto, and all agreements and instruments to be delivered by the parties pursuant hereto, constitutes the entire and only agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements, whether written, oral, express, or implied, of the parties with respect to the transactions set forth herein. Any modification to this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party. No online or click-through terms, conditions, policies, or documents offered by a Party (“Online Terms & Conditions”) shall be deemed to have modified or superseded this Agreement, notwithstanding the fact that a Party may have affirmatively accepted such Online Terms & Conditions as a condition of accessing a website or online service.
[26] COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument.
