Partner Program Agreement

  1. Overview
    1. This Partner Program Agreement (the “Agreement”) describes the FutureFeed Partner Program, including the associated terms and conditions. The FutureFeed Partner Program is designed for managed IT services providers, managed security services providers, consultants, and others who are inspired to lead the next phase of innovation in and around cybersecurity by providing and/or integrating governance, risk, and compliance-related services to Clients via the FutureFeed platform. The Company offers our Partners resources, training, and tools enabling them to develop expertise around specific business functions, service areas, and industries so they can best serve their Clients and differentiate their practices. Unlike programs developed by traditional software providers and cloud resellers, the FutureFeed Partner Program has been specifically designed to enable Partners to enhance their own cyber assurance levels and to deliver enhanced assurance to their Clients. The FutureFeed Partner Program takes advantage of the FutureFeed platform’s unique Client engagement models, economics, and potential to deliver Partner and Client success.
    2. Click here to contact us if you have a question about this Agreement.
    3. BY ACCEPTING THIS AGREEMENT, AS EVIDENCED BY (i) FILLING IN, SIGNING, AND RETURNING A COPY OF THIS AGREEMENT; (ii) CLICKING A BOX INDICATING ACCEPTANCE; (iii) ACCESSING OR USING THE PARTNER PORTAL (WHEN AVAILABLE) MORE THAN TEN (10) CALENDAR DAYS AFTER THE UPDATE DATE (DEFINED BELOW); OR (iv) ACCESSING OR USING THE FUTUREFEED PLATFORM MORE THAN TEN (10) CALENDAR DAYS AFTER THE UPDATE DATE (DEFINED BELOW), PARTNER AGREES TO THE TERMS OF THIS AGREEMENT AND THAT THIS AGREEMENT SUPERCEDES AND REPLACES ANY EXISTING AGREEMENTS BETWEEN THE PARTIES.
    4. THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A LEGAL ENTITY AND SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
    5. The Company’s competitors and their Affiliates are prohibited from accessing the Services, including the Partner Portal, and are prohibited from becoming Partners, except with the Company’s prior written consent.
    6. The Company reserves the right to modify the terms of this Agreement at any time. The then-current version of the Agreement will be published on the Company's legal page (https://www.FutureFeed.co/legal). The Company will endeavor to notify Partner when the Agreement has been modified, but it is Partner’s responsibility to periodically review the then-current terms of the Agreement. This Agreement was last updated on the most recent date reflected in the Change Log, below (the “Update Date”). It is effective between Partner and the Company as of the earliest date on which Partner accepted this Agreement (the “Effective Date”). Any modification of the terms of this Agreement will have prospective effect only
  2. Definitions
    1. Capitalized terms shall have the meanings defined in the Definitions page and as defined herein, including any definitions below, and in the corresponding Subscription Agreement ("MSA"). In the event of a conflict between a definition on the Definitions page and this Agreement, the definitions in this Agreement shall control for this Agreement, then the definitions in the MSA, and finally the definitions from the Defintions page.
  3. Relationship of the Parties
    1. Non-Exclusive Relationship. The parties are working together on a non-exclusive basis. Engagements between the parties will not be interpreted to limit either party’s right to obtain, promote, or distribute products or services from other sources, and will not restrict either party’s freedom to set prices for its Services or other products or services.
    2. Independent Contractors. Any use of the term “Partner” is for reference purposes only. The parties are independent contractors and do not intend to create an employer-employee relationship, partnership, joint venture, agency relationship, or fiduciary relationship. Neither party nor any of its Representatives may make any representation, warranty, or promise on behalf of the other party. Each party is solely responsible for the conduct of its Representatives. Each party is solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
    3. Costs. Each party will bear its own costs of performance under this Agreement unless otherwise specified.
    4. Publicity. Except as otherwise required by Laws or as otherwise expressly authorized under the Agreement, neither party will issue any press release, publicity, or other disclosure in any form that relates to the terms of this Agreement or to a party’s relationship with the other party, including in client presentations or client lists, without the other party’s prior written approval. Notwithstanding the foregoing, the Company may include Partner’s name and/or logo on online or written marketing materials, provided Company’s use thereof does not express Partner’s endorsement of Company or the Services without Partner’s consent.
  4. Business Integrity Principles
    1. Compliance with Laws. Each party will conduct its respective business activities under this Agreement in full compliance with all Laws. Without limiting the foregoing, each party will:
      1. comply with:
        1. Laws that apply to the other party’s Marks or to the use, transfer, import, export, or re-export of any Services licensed or distributed under this Agreement (including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations);
        2. any end-user, end-use, and destination restrictions of the U.S. and other governments; and
        3. the terms of any Service Offering;
      2. comply with Laws that govern the rights to and protection of the other party’s copyrights, Marks, patents, trade secrets, and other forms of intellectual property;
      3. comply with Laws that govern labor practices, human rights, and health and safety;
      4. obtain and maintain any required local government approvals, each at its own expense; and
      5. timely provide information, assistance, and cooperation (at the requesting party’s commercially reasonable request and expense) as necessary to comply with Laws, or to register (or renew registration) or report to any governmental agency or certification body that regulates or certifies the use, licensing or distribution of Services.
    2. Code of Conduct. Partner will comply with the FutureFeed Partner Code of Conduct located at https://www.FutureFeed.co/legal/partner-code-of-conduct and will, upon request from the Company, submit a Compliance Certification as set forth in https://FutureFeed.co/legal/compliance.
    3. Business Conduct. Partner will:
      1. conduct its business activities with integrity;
      2. comply with anti-corruption Laws and other Laws prohibiting bribery, corruption, inaccurate books and records, inadequate internal controls, and money-laundering;
      3. ensure that none of its Representatives directly or indirectly pays or offers to pay anything of value (including gifts, travel, hospitality, charitable donations, or employment) to any candidate for political office or to any official or employee (including elected officials or any private person acting on behalf of a public sector entity) of any governmental entity, public international organization, or political party, to improperly influence any act or decision of such person for the purpose of promoting the business interests of either party;
      4. not make any unauthorized representation or commitment on behalf of the Company;
      5. ensure that all communications to its Clients and to the Company are complete, truthful, accurate, not misleading, and include any required disclosures; and
      6. refrain from retaliating against anyone who has, in good faith, reported a possible violation of the foregoing commitments.
    4. Business Conduct Training. For Partner employees in a position to influence the pricing, terms, or conditions under which the Company’s Services are distributed, resold, used, or marketed (but excluding employees engaged solely in distribution of the Company’s Services to end consumers), Partner will provide regular training on anti-corruption laws and business integrity principles to its employees who use, resell, distribute, or market the Company’s Services.
    5. Monitoring and Reporting. If either party has a good-faith reason to believe that the other party is in violation of anti-corruption laws in connection with business or sales activity relating to the Agreement, it will notify the other party with a general description of the nature of the concern, and the reason for its belief. Partner may contact the Company’s Legal Team (Legal@Futurefeed.co) with questions or requests for further information or guidance. The parties will confer in good faith on an appropriate and lawful approach to addressing the concern.
  5. General Rights, Restrictions, Obligations, and Authorization Terms and Conditions
    1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
    2. Lawsuits. Each party warrants that, as of the Publication Date, that party is not aware of any actual or threatened lawsuits that would impact that party's ability to perform under this Agreement.
    3. Third-Party Rights. Except as required by Law, the Company grants no rights to Partner to sublicense any access Partner may have in or to the Services, or any rights under this Agreement, to any third parties (including Partner Affiliates or subcontractors) unless such rights are expressly provided in a Service Offering.
    4. No Internal Use Rights. Except as otherwise provided in the Agreement, Partner may not:
      1. use Services acquired under this Agreement for its own internal use; or
      2. distribute or otherwise transfer Services acquired under this Agreement to any Partner Affiliates for their internal use.
    5. No Modifications. Partner may not modify any Service (or any packaging or Service Materials) unless the Company directs or permits Partner to do so in writing.
    6. No Conflicting Commitments. Partner may not make any representation, warranty, guarantee, or promise with respect to any Service that would conflict with or expand the Company’s obligations to a Client or end user. Partner’s instructions to Clients on the use of Services must be consistent with any Service Specific Terms, the Service Offering, and any relevant warranty document, services terms, or end user documentation provided by the Company.
    7. FutureFeed Partner Program Membership. Partner must maintain its status as a registered member of the FutureFeed Partner Program and maintain an active FutureFeed Partner Program Agreement. Registered member status is currently available to Partner free of charge.
    8. Technology. Partner agrees to, as required to perform its obligations under the Agreement, provide the necessary equipment, technology, and infrastructure needed and take necessary steps, on an ongoing basis and as applicable, to access and use the Services, including the Partner Portal.
    9. Security and Unauthorized Disposition. Partner will take commercially reasonable measures to protect Services and Service Materials under its possession or control from any damage, destruction, or Unauthorized Disposition, and will comply with any additional security requirements otherwise set forth in a Service Offering and any associated Guide. Each party agrees to:
      1. promptly notify the other party if it becomes aware of any material Unauthorized Disposition; and
      2. reasonably cooperate to investigate the suspected activities, and to share relevant information in furtherance of the Agreement.
    10. Service Agreement Acceptance Confirmation. Partner will confirm that each Client has accepted the MSA by providing a record of such acceptance (e.g., by providing the acceptance date, name of signatory, and other relevant details via the Partner Portal or an E-mail to the Company) upon the creation of any new Subscriptions. Failure to provide such record of acceptance may result in the disablement of the Client’s account.
    11. Client Access to Data. Partner agrees that all information entered into a Service by or on behalf of a Client is that Client’s information. The Company shall not directly solicit any of Partner’s Clients to enter into a direct relationship with the Company or with another Partner. Notwithstanding the foregoing, should a Client reach out to the Company about transitioning their relationship to another Partner or to a direct relationship with the Company, the Company shall be permitted to facilitate such a transition and Partner shall not take any actions which would impact the Client’s ability to access the Service or the Client’s information stored in the Service.
  6. Partner Portal Access, Multifactor Authentication Requirements.
    1. The Company may provide tools for Partner to use to self-administer its Representatives’ access rights to the Partner Portal; it is Partner’s responsibility to use such tools to monitor and control its Representatives’ access. In the event Partner cannot access to the self-administration tools, or if Partner requires assistance, Partner can contact the Company to have a Representative’s Partner Portal access terminated. The Company will endeavor to respond to such requests in a timely manner, but Partner remains responsible for actions taken using access rights established for its Representatives. The Company will endeavor to obtain Partner’s permission before accessing or altering any Partner or Partner Representatives’ accounts; however, the Company reserves the right to make any changes the Company deems necessary without notice to or permission from Partner.
    2. The Company requires the enabling of multifactor authentication for all accounts, and Partner is responsible for ensuring that a Representative’s multifactor authentication is properly configured and maintained.
  7. Support Terms
    1. Support. The Company agrees to provide support as defined on the corresponding Service Offering’s Support Page (e.g., https://www.FutureFeed.co/legal/support), which is incorporated herein by reference in its entirety.
    2. Service Levels. Operational and functional support for a Service shall be provided as described in the Service Offering and/or on the Support page.
    3. Business Continuity Management. If a Force Majeure Event inhibits the conduct of normal subscriptions or Service operations, the Company may choose to immediately alter its operational procedures. In such cases, the Company will provide responsive instructions to Partner. Partner must follow such instructions until the Company declares its return to normal operating procedures.
  8. Warranties and Disclaimers
    1. Partner Warranties to Clients. Partner is solely responsible for any independent or extended warranties or other offers or services it makes to Clients.
    2. NO IMPLIED WARRANTIES OR REPRESENTATIONS. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR EXPRESSLY PROVIDED IN A SERVICE OFFERING, ALL SERVICES AND CONTENT ARE PROVIDED TO PARTNER “AS IS.” THE FOREGOING “AS IS” WARRANTY, AND ANY WARRANTIES EXPRESSLY SET FORTH IN A SERVICE OFFERING OR HEREIN, ARE THE ONLY WARRANTIES MADE BY THE COMPANY TO PARTNER. COMPANY MAKES NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES TO PARTNER RELATED TO THE AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
    3. HIGH RISK USE WARNING. UNLESS OTHERWISE EXPLICITLY STATED IN THIS AGREEMENT, THE SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK USE SCENARIOS WHERE FAILURE OR FAULT OF ANY KIND OF THE SERVICE COULD REASONABLY BE SEEN TO LEAD TO DEATH OR SERIOUS BODILY INJURY, OR TO SEVERE DAMAGE TO TANGIBLE OR INTANGIBLE PROPERTY OR THE ENVIRONMENT.
    4. NO WARRANTIES FOR THIRD-PARTY SERVICES OR CONTENT. EXCEPT AS EXPRESSLY PROVIDED IN A SERVICE OFFERING, THE COMPANY MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, AND ASSUMES NO LIABILITY AS TO ITEMS DISTRIBUTED UNDER A THIRD-PARTY NAME, COPYRIGHT, TRADEMARK OR TRADE NAME THAT MAY BE OFFERED OR COMBINED WITH OR INCORPORATED INTO THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY WILL HAVE NO LIABILITY IN CONNECTION WITH THE THIRD-PARTY ITEMS (SUCH AS IN CONNECTION WITH ANY SUPPLY OR FAILURE TO SUPPLY THEM).
  9. Pricing, Payment, Ordering, and Fulfillment
    1. Available Subscriptions and Price Lists. The Company will designate one or more Price Lists for each Service Offering. The Price List(s) will include the Service Fee (i.e., the List Price) for each Service and any referral credits, incentives, or other pricing advantages that are available to Partner. The Service Offering and/or the Partner Portal will set forth the process for ordering Services and how the Company will make such Services available to Partner or Partner’s Client under the related Service Offering.
    2. Payment Terms.
      1. Payment is due before a Client will be entitled to receive or access any Service.
      2. The Company will invoice Partner for Service Fees owed to the Company, and Partner must pay such Service Fees on or before the due date and in the currency stated, in accordance with the payment and invoicing process set forth below, or as set forth in the relevant Service Offering. Partner will independently decide whether to extend credit to its Clients, as applicable. A Client’s failure to pay Partner will not relieve Partner of its payment obligations to the Company, even in the case of insolvency.
      3. All payments to the Company by Partner must be made by credit card or electronic funds transfer. Partner must provide payment remittance details at or before the time of payment. Remittance detail must indicate the invoice number(s) and credit memo number(s) issued which are being paid and claimed respectively. Any remittance sent to the Company’s bank after the cut-off time will not be considered received until the following US bank business day and may become subject to late payment penalties.
      4. The Company may assign any of its rights to receive payment under the Agreement to any financial institution or the Company’s Affiliate without the consent of Partner. In such an event, Partner will use commercially reasonable efforts to facilitate such assignment (e.g., by acknowledging it in writing if needed, or by paying the invoices directly to the assignee, if instructed by the Company).
    3. Client Discount & Client Special Offer Transparency, Passthrough for State-Owned Enterprises. If the Company provides Partner with a Client Discount for a State-Owned Enterprise, Partner must:
      1. ensure that the Client Discount is passed through for the benefit of the Client. This also means that the Partner’s price to the Client may not exceed the List Price for the Service minus the Client Discount;
      2. ensure the disclosure of all Client Discount and Client Special Offer information provided to it by the Company to the relevant State-Owned Enterprise. The Company reserves the right to disclose Client Discounts and Client Special Offers directly to a State-Owned Enterprise; and
      3. provide accurate contact information of the authorized representative of a State-Owned Enterprise receiving a Client Discount or Client Special Offer in order to enable the Company’s communication to the State-Owned Enterprise of information regarding such discount or special offer.
    4. Ordering and Invoices. Services for a Client can be ordered via an Order Form, the Partner Portal, or by contacting the Company. As noted above, payment in full is required in advance of Client’s receipt of or access to the Services. The Company may issue an invoice to Partner for a particular Client order. The Company will post any such invoices to the Partner Portal for Partner or communicate them via E-mail, at the Company’s sole discretion. Individuals who are authenticated in the Partner Portal as “Billing Admin” or “Global Admin” will have access to the invoices. All invoices will identify the price payable by Partner in accordance with the pricing applicable to that specific order.
    5. Non-Refundable Payments. Partner acknowledges that all payment obligations are non-cancelable, and fees paid are non-refundable, more than seventy-two (72) hours after such obligations arise.
    6. Direct Client Billing. Notwithstanding the foregoing, Company may, at the Company’s sole discretion, allow Partner to indicate on an Order Form that the Company should direct-bill a Client the fees associated with that Service. Where such option is elected by Partner, the Company shall bill the Partner’s Client at the Company’s then-current List Price(s) for the Service(s) ordered.
    7. Partner Pricing. Except as otherwise provided in the section entitled “Client Discount & Client Special Offer Transparency, Passthrough” in these Channel Terms, Partner has full discretion to set the price Partner charges Partner's Clients for Service Offerings where Partner is responsible for billing the Client for such Services.
    8. Notice of Impending Subscription Term Expiration.
      1. If the Company is billing a Client directly:
        1. The Company will endeavor to notify the Client at least thirty (30) days prior to the expiration or renewal of the term of a Subscription.
        2. The Company may, at the Company's sole discretion, notify Client at greater intervals, such as, without limitation, at ninety (90) and sixty (60) days prior to renewal or expiration of a Subscription.
      2. if Partner is billing a Client:
        1. The Company will endeavor to notify Partner at ninety (90) and thirty (30) days prior to the renewal or expiration of a Subscription.
    9. Order Form Details. Partner shall act in good faith and accurately obtain and enter all information requested on an Order Form including, without limitation, the number of Full Time Equivalent employees at a Client and/or the number of employees accessing an enclave. By placing an order via an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
    10. Misrepresentations. If an audit reveals Partner or Partner’s Client has misrepresented information on an Order Form, the Company may take any (or any combination) of the following actions, and without waiving any other right or remedy it may possess, to the maximum extent permitted by Law:
      1. calculate any price differences as a “late fee” and charge interest (of no less than 1% per month, unless prohibited by Laws) and late fees on the past due amount from the first day the amount is past due until the amount is paid in full;
      2. suspend all pending orders, Partner’s Client’s access to the Services, and/or Partner’s access to the Partner Portal; or
      3. withhold the past-due amount from any other amounts payable by the Company to Partner under the Agreement.
    11. Taxes. Partner is responsible for Taxes and will pay to the Company any applicable Taxes that Partner owes solely from entering into the Agreement and which are permitted or required to be collected by the Company under Law. The Company will not collect any Taxes covered by a valid exemption certificate that Partner provides. If any Taxes are required to be withheld on payments made by Partner to the Company, Partner may deduct such Taxes from the amount owed to the Company and pay them to the appropriate taxing authority, but only if Partner promptly secures and delivers an official receipt for those withholdings and other documents reasonably requested by the Company to claim a foreign tax credit or refund. Partner must deliver the receipt within sixty (60) days of payment of the Tax, or maximum time allowed for delivery of the receipt under Law. Partner will use reasonable efforts to ensure that any Taxes withheld are minimized to the extent possible under Law. The withholding taxes referred to in this section apply to withholding taxes required by the taxing authorities on payments to the Company only and do not include any withholding taxes suffered by Partner for payments made to Partner by its Clients. For clarity, Partner will be responsible for Taxes withheld on payments to or between Partner and any Partner Affiliates.
    12. If Partner does business in a jurisdiction that collects VAT, GST, or other similar Tax, Partner must provide a tax ID or business number, as applicable, upon request.
  10. FutureFeed Elite Partner Program
    1. FutureFeed Elite Partner Program Description. The Company currently entertains requests for information and Services demonstrations from the general public and sells directly to the public. The Company is transitioning away from such a direct-sale model. The Company will be referring such inquiries received to Partners meeting the Elite Partner Qualification Requirements defined below. Although the Company will endeavor to find a mechanism though which Elite Partners appropriately receive any relevant referrals, the Company reserves the right to refer incoming inquiries as the Company sees fit.
    2. FutureFeed Elite Partner Program Qualification Requirements. To qualify as an Elite Partner, an organization must meet the Elite Partner Program requirements, including:
      1. Have at least two (2) FutureFeed Certified Professionals on staff; and
      2. Have at least twenty (20) qualifying active Subscriptions.
    3. Additional details about the Elite Partner Program are available from the Company upon request.
  11. Third Party Offer Terms
    1. LIMITATIONS, DISCLAIMERS, AND OTHER OBLIGATIONS. EXCEPT AS PROVIDED BELOW, ALL LIMITATIONS, DISCLAIMERS, AND PARTNER OBLIGATIONS IN THE SERVICE OFFERING, AND IN THIS AGREEMENT GENERALLY, THAT APPLY TO SERVICES AND SUSCRIPTIONS ALSO APPLY TO THIRD PARTY OFFERS.
    2. Definitions. For the purposes of this Section:
      1. Developer” means the provider of the Third Party Offer.
      2. Developer Client Agreement” means the terms, conditions, and usage rights associated with the applicable Third Party Offer provided by Developer.
      3. Third Party Offers” means that selection of Non-FutureFeed Services made available through a marketplace capability, via the Partner Portal, or through other such means.
    3. Terms Subject to Developer Policy. Developers provide Third Party Offers subject to the terms of the associated Developer Client Agreement and policies of that Developer. The Company is merely a facilitator of any arrangements between the Developer and Partner or the Client. All Developer Client Agreements are between the Developer and Partner or the Client, as appropriate. ANY EXPRESS OR IMPLIED OBLIGATIONS, INCLUDING WITHOUT LIMITATION INDEMNIFICATION OR WARRANTY OBLIGATIONS, THAT MAY BE ATTRIBUTABLE TO COMPANY ARE EXPRESSLY DISCLAIMED WITH RESPECT TO THE THIRD PARTY OFFERS.
    4. Third Party Client Agreement Acceptance. Partner must provide each Client with the Third-Party Client Agreement associated with each Third Party Offer ordered by or on behalf of that Client. If the agreement has regional versions based on the Client location, Partner must provide the appropriate regional version to the Client. The Client, or Partner on behalf of the Client, must accept the applicable Third Party Client Agreement(s) in a manner that creates a legally enforceable contract between the Developer(s) and the Client. If the Company provides Partner an updated Third Party Client Agreement, then Client for that Third Party Offer must agree to the new Third Party Client Agreement at or before renewal of their Subscription. The links to access current Third Party Client Agreements are made available as part of the Services. By placing an order, Partner:
      1. represents and warrants that Client has accepted the associated Third Party Client Agreement; and
      2. agrees to pay the Company for all orders it submits for Third Party Offers.
    5. Ordering and Delivery. Partner will order, pay for, and conduct administration including disablement and cancelation of Third Party Offers through the Portal. The Company will provide Partner with instructions to access the Developer’s site for that offer. Partner will use Developer’s site and designated processes for delivery of Third Party Offers, including provisioning and assignment of licenses and other service management. Partner is responsible for submitting all required fields requested in the Portal and through Developer’s site for the Third Party Offers to be delivered and managed. Partner agrees to respond to Developer or the Company’s reasonable request for certain types of tax documentation (for example, copies of withholding tax receipts or copies of the US sales and US tax resale exemption certificates). THE DEVELOPERS’ SITES, SERVICES, AND CONTENT ARE NOT UNDER THE CONTROL OF THE COMPANY AND THE COMPANY IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY DEVELOPER’S SITE, SERVICES, OR CONTENT, OR ANY CHANGES OR UPDATES THERETO.
    6. Support. The Developer of a Third Party Offer provides technical support and service level commitments to Client on that offer, as provided in Third Party Client Agreement. Partner is responsible for all other support for Third Party Offers as provided in the Agreement, including billing, account set-up, and payment. Partner may route technical support queries from Clients to the Developer of the Third Party Offer through the process and subject to the limitations designated by the Company or the Developer.
    7. Cancelation. The Client, or Partner on behalf of the Client, may cancel a Subscription for a Third Party Offer. Early termination of a Subscription may result in a charge and will only be eligible for a refund to the extent allowed for by the Company and Developer for that Third Party Offer. Upon cancellation, Client may have an opportunity to migrate any Client data to either a new Subscription with Partner, Developer, or the Company or some other service.
    8. Termination Notice. The Developer and the Company can terminate making available a Third Party Offer or all Third Party Offers at any time without cause and without intervention of the courts by giving Client or Partner not less than thirty (30) days’ prior written notice. Neither the Developer nor the Company will have to pay the other party any costs or damages resulting from termination of this arrangement without cause. If Partner’s ability to sell a Third Party Offers terminates or expires, Partner and the Company will work in good faith to develop and specify options available to existing Clients at the end of such period and issue any necessary communication to such Clients describing such options. This will include, if available, an option to purchase Third Party Offers directly from the Company.
  12. Audit
    1. Duty to Maintain Records. Partner must maintain complete and accurate records relating to its performance under the Agreement (“Relevant Records”) during the term of its participation under a Service Offering and for two (2) years after the later of either:
      1. the termination of Partner’s participation under such; or
      2. the date of issuance of final payment between the Company and Partner in connection with such participation (collectively, the “Audit Period”).
    2. Relevant Records. Relevant Records include, but may not be limited to, complete financial statements and all documents related to acquisition, reproduction, installation, distribution, and other disposition of each unit of Service. The Relevant Records must not contain any false, misleading, incomplete, inaccurate, or artificial entries. If Relevant Records are co-mingled with Partner’s other non-relevant information, Partner may redact the Relevant Records, but only with respect to such non-relevant information.
    3. Right to Audit. The Company may appoint a Company employee or use a third-party auditor or an audit related agent, (the “Auditor”) to review Relevant Records and audit Partner’s premises, operations, processes, and Relevant Records during the Audit Period, to verify performance under the Agreement. Any third-party Auditor will:
      1. be independent and internationally recognized, certified, or chartered;
      2. not be hired on a contingent fee basis; and
      3. be instructed by the Company to treat Partner’s Confidential Information in accordance with applicable professional standards and the confidentiality requirements set forth in the Agreement.
    4. Audit Frequency. Except as otherwise provided in the Agreement, unless a prior audit has revealed a Material Discrepancy or Partner’s non-compliance with the section entitled “Business Integrity Principles” set forth in this Agreement, or the Company has credible and reliable evidence of Partner’s non-compliance with the section entitled “Business Integrity Principles” set forth in this Agreement, the Company will not audit Partner more than one time per calendar year under this section. Notwithstanding the foregoing, upon the Company’s request, Partner agrees to promptly provide information reasonably necessary to demonstrate Partner’s compliance with the Partner Code of Conduct; the Company’s exercise of this right shall not be deemed an exercise of its right to review and audit Partner’s Relevant Records. In the exercise of the Company’s audit rights, the Company may require Partner to provide electronic downloads of relevant data and may require Partner to complete a self-assessment questionnaire.
    5. Audit Procedure.
      1. The Company will provide not less than ten (10) business days’ prior notice to Partner before beginning an audit. Audits will take place during Partner’s regular business hours, and the Auditor will use commercially reasonable efforts to avoid disrupting Partner’s operations. Partner personnel may escort the auditor on Partner’s premises. Partner will have all Relevant Records and operations available to the Auditor at the beginning of, and throughout, the audit. The Company may have the Relevant Records audited at multiple sites to verify performance under the Agreement. At the Company’s option, Partner will make all Relevant Records available to Auditor at one location. Partner will provide reasonable access to the Auditor to facilitate the audit and permit the Auditor to copy records. At the Company’s request, Partner will make relevant employees available to the Auditor during the audit. The Company will provide Partner with a summary of the audit findings upon request.
      2. If the Company has credible and reliable evidence that counterfeiting, piracy, or corruption may have occurred, Partner must promptly cooperate with the Company or its Auditor to carry out an investigation of the suspected activities. If an investigation results in a referral to law enforcement agencies, or if the Company initiates other legal action to enforce its rights against responsible parties, Partner agrees to provide reasonable and timely cooperation and information.
    6. Payment of Audit Costs and Amounts Due. The Company will pay the cost of audit expenses for verifying Partner’s compliance with the Agreement; provided, however, that if the audit reveals a Material Discrepancy, then Partner must promptly reimburse the Company for the reasonable costs of the audit. If the audit reveals any discrepancy, Partner must promptly pay the Company any unpaid amounts due, together with any applicable late fees and interest, calculated from the date on which such amount became due to the Company from the Partner, and promptly correct any errors or omissions disclosed by the audit.
  13. Privacy and Data Security
    1. Data Controllers. With respect to any Personal Data transferred under this Agreement, Partner and the Company agree that both Partner and the Company are data controllers of the Personal Data that each independently processes.
    2. Processing. The nature, purpose, and subject matter of the Processing, including the types of Personal Data and categories of Data Subjects involved, are described in Service Offerings. Partner will not Process Personal Data under this Agreement for any other purpose.
    3. Partner Commitments: Without limiting the foregoing, Partner will:
      1. comply with the obligations imposed on it under Data Protection Laws;
      2. prior to obtaining information from Data Subjects, obtain their legally valid permission or have another valid legal basis to process their data and to transfer it to the Company in a manner which complies with applicable Laws as valid consent;
      3. establish independent procedures for managing and responding to any communication from a Data Subject seeking to exercise its rights under Data Protection Laws, including where Partner is communicating the Data Subject request on behalf of the Data Subject;
      4. provide commercially reasonable assistance to the Company (at Partner’s expense) in responding to any requests, investigation, consultation, or claims (collectively “Claims”) from a Data Subject, regulator, or supervisory authority concerning Data Protection Laws where such Claims pertain to Partner’s Client;
      5. take all measures that are required by Data Protection Laws, and measures in accordance with good industry practice relating to data security (including, if applicable, pursuant to Article 32 of GDPR) while providing the Services;
      6. provide prominent notice of its privacy practices to Data Subjects and maintain a prominent link to an online privacy policy on each page of its website and/or in a reasonable location within its application and will ensure that each notice and policy complies with this Agreement and Data Protection Laws;
      7. upon termination of the Agreement, delete or return to the Data Subject all copies of Personal Data except to the extent Partner has the right or obligation under applicable Data Protection Laws to retain Personal Data after termination; and
      8. refrain from transmitting unsolicited commercial communications in any manner that would violate Laws or that would associate the Company with the Partner in an unauthorized manner.
    4. Company Commitments: The Company will:
      1. take all measures that are required by Data Protection Laws, and in accordance with good industry practice relating to data security (including, if applicable, pursuant to Article 32 of GDPR) while Partner is using the Services;
      2. make available to Partner, upon request, the results of any undisputed, final security or privacy related audit, assessment, certification, or related review;
      3. notify Partner of any material, adverse change to the Company's security-related certification or compliance status;
      4. provide prominent notice of its privacy practices and maintain a prominent link to an online privacy policy on each page of its website and/or in a reasonable location within its application and will ensure that each notice and policy complies with this Agreement and Data Protection Laws;
      5. upon termination of the Agreement and in accordance with the Company's Customer Data Retention Policy, delete or return to Partner all copies of Personal Data (and certify the same) except to the extent the Company has the right or obligation under applicable Data Protection Laws or other agreements with Partner or a Client to retain Personal Data after termination; and
      6. refrain from transmitting unsolicited commercial communications in any manner that would violate Laws or that would associate the Company with the Partner in an unauthorized manner.
  14. Proprietary Rights
    1. Excluded License. Partner’s rights to use any of the Company’s Services under the Agreement do not include any license, right, power, or authority to subject the Company’s Services to any of the terms of an Excluded License. Partner may use or distribute the Services with other material that is subject to an Excluded License only if such Services are used or distributed in a manner that does not subject, or purport to subject, such Services (or any intellectual property related to the Services) to the terms of an Excluded License.
    2. Proprietary Notices. Neither party will remove any copyright, trademark, patent, or similar notices from the other party’s materials without express written consent from the other party.
    3. Use of Marks. Except as expressly provided in the Agreement, or any separate license agreement that is incorporated into the Agreement by reference, the Agreement does not grant either party any right, title, interest, or license in or to any of any Marks of the other party. Partner may use the Company’s corporate name, the Company’s Service names, and trademarks in plain text (but not logos, trade dress, designs, or word marks in stylized form) to accurately identify and refer to the Company and its technology and services. In making such references, Partner must refrain from any use that is likely to cause confusion about Partner’s relationship with the Company and must comply with the Company’s trademark usage guidelines at: https://www.Futurefeed.co/legal/trademarks. Partner will promptly correct any misuse upon notice from the Company.
    4. No Reverse Engineering. Partner agrees not to reverse engineer, decompile, or disassemble any of the Services, except and only to the extent expressly permitted by Laws.
    5. Antipiracy. Partner will implement and enforce reasonable internal controls to prevent unauthorized access to (or manufacture, duplication, distribution, delivery, or use of) counterfeit, stolen, pirated, or unlicensed content, technology, or Services by the party’s Representatives and Affiliates. Partner agrees to promptly report to the Company any suspected counterfeiting, theft, piracy, unauthorized access, or infringement of copyright, trademark, patent, or other intellectual property rights owned or licensed by the Company and agrees to promptly and reasonably cooperate with the Company in the investigation of such unauthorized activities.
    6. Reservation of Rights. Except as otherwise expressly granted in the Agreement:
      1. each party owns and retains all rights, title, or interest in and to its own respective intellectual and other proprietary rights, including improvements thereto, and except as otherwise provided for herein, neither party grants any rights to the other party whether by implication, statute, estoppel or otherwise; and
      2. all permitted use of Services is by subscription only and is not subject to the “first sale” or any similar doctrine under copyright or other applicable intellectual property rights Laws.
    7. Terminology. Except as otherwise expressly granted in the Agreement, any use in the Agreement of words such as “distribute,” “sell,” “price,” “fees,” or similar words is for convenience only, and not to be construed to mean that title to any underlying intellectual property rights in the Services is being transferred.
  15. Term; Termination
    1. Term. This Agreement shall remain effective for a period of one (1) year from the Effective Date and shall automatically renew for additional one (1) year terms unless terminated by either party as provided for under this Agreement.
    2. Termination without Cause. Either party can terminate this Agreement at any time without cause, and without intervention of the courts, by giving the other party not less than thirty (30) days’ prior written notice. However, if any underlying Service-specific terms require a longer period of prior notice prior to termination of such without cause (such being an “W/O Cause Period”), such W/O Cause Period shall apply here as well, provided that the prior notice period required to terminate without cause under this provision will not exceed one-hundred-and-fifty (150) days. Except as otherwise provided in the Agreement, neither party will have to pay the other party any costs or damages resulting from termination of this Agreement without cause.
    3. Termination for Cause. If a party breaches any term of this Agreement and such breach is curable, then the breaching party shall have thirty (30) days’ following written notice of such breach by the non-breaching party to cure. If the breaching party fails to cure the breach within such thirty-day period, the non-breaching party may terminate this Agreement upon written notice to the breaching party. A party will be allowed to cure a breach once; if a party breaches this Agreement for the same reason as a prior breach then the other party may terminate this Agreement immediately upon written notice to the breaching party. If the breach is not curable, then the non-breaching party may terminate this Agreement immediately upon written notice to the breaching party. Either party may also terminate this Agreement immediately upon 30 days written notice to the breaching party due to the other party’s:
      1. breach of the confidentiality terms;
      2. other material breach, upon 30 days written notice to the other party, if such breach remains uncured at the expiration of such period;
      3. failure to comply with the requirements and obligations outlined in the section entitled “Business Conduct”; or,
      4. if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors..
    4. Termination for Intellectual Property Violations. The Company may also terminate this Agreement immediately upon written notice to Partner due the infringement, misappropriation, or violation of the Company’s intellectual property rights.
    5. Affiliates. The Company may, in its sole discretion, deem a termination for breach of an agreement between Partner, or a Partner Affiliate, and a Company Affiliate, where Partner or the Partner Affiliate is the breaching party, to be a breach of, and the basis of an immediate termination of, this Agreement.
    6. Effect of Termination. Partner acknowledges that the termination of this Agreement shall immediately, and without further action by the parties, terminate any underlying Service-specific terms.
  16. Defense of Third-Party Claims
    1. Each Service Offering will identify what, if any, specific indemnity or defense obligations apply to that Service Offering and any related terms. If a Service Offering requires a party (a “Defending Party”) to defend at its own expense the other party (the “Tendering Party”) in a Claim, and to pay a judgment or settlement in such Claim, such requirement will be subject to the conditions and limitations set forth below and in the relevant Service Offering.
    2. The Tendering Party must promptly notify the Defending Party in writing of the Claim, specifying the nature of the Claim and the relief sought, provided that any failure by the Tendering Party to provide such notice to the Defending Party reasonably promptly will not relieve the Defending Party of any obligation or liability to the Tendering Party, except and only to the extent that the Defending Party demonstrates that it has been materially prejudiced by such failure by the Tendering Party to provide such notice to the Defending Party reasonably promptly.
    3. Except as set forth below, the Defending Party will have sole control over the defense of the Claim, and the Tendering Party must provide the Defending Party with reasonable assistance in the defense of the Claim (for which the Defending Party will reimburse the Tendering Party’s reasonable out of pocket expenses). The Tendering Party will have the right to employ separate counsel and participate in the defense at its own expense. The Defending Party may not settle the Claim without the Tendering Party’s prior written consent (which will not be unreasonably withheld, conditioned, or delayed). Neither party will acknowledge or admit fault or liability on the other’s part nor publicize any settlement without the other’s prior written consent (which will not be unreasonably withheld, conditioned, or delayed).
    4. In a multi-party action that includes Claims for relief directed to both the Company and Partner, each party will reasonably cooperate on a defense strategy to limit the overall liability for both parties across all Claims in the action. Such cooperation will include providing specific information, witnesses, and evidence to support the Company and Partner’s legal theories.
    5. If the Company receives information concerning a covered intellectual property Claim, the Company may, at its option and expense, and in addition to its other rights and obligations under the Agreement, undertake further actions to mitigate or resolve the Claim such as, without limitation:
      1. procure the copyright, trademark, or patent rights, or licenses to address the Claim;
        1. replace or modify the Service or Mark to make it non-infringing; or
        2. if the Company reasonably determines, after the exercise of commercially reasonable efforts, that neither of the foregoing are feasible, refund all, or a portion of, the Service Fees paid for affected Services, as appropriate.
      2. Except as otherwise provided in the Agreement, this section provides Partner’s only remedy for third party infringement and trade secret misappropriation Claims.
  17. Confidentiality
    1. If the parties have entered into a separate nondisclosure agreement, the terms of this Section shall apply to, and supersede the terms in such separate agreement with respect to the Partner Program.
    2. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose that Confidential Information to third parties, except to its Representatives and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of the Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
    3. Each party must not disclose any Confidential Information of the other for five (5) years following the date of initial disclosure. Notwithstanding the foregoing, each party must not disclose any Confidential Information of the other that contains Personal Data or intellectual property.
    4. Notwithstanding the parties’ obligations set forth above, a receiving party may disclose the other party’s Confidential Information if required by a court order or Laws to do so; provided that prior to disclosure, the disclosing party must seek the highest level of protection available and must give the other party reasonable prior notice when possible to allow it to seek a protective order.
    5. Notwithstanding Subsections a through c of this Section, the Company may access, review, and/or analyze Partner’s Confidential Information provided any analyses published or otherwise made available by the Company comply with this Section.
  18. Limitations on Liability
    1. THE TOTAL CUMULATIVE LIABILITY (IF ANY) OF EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED:
      1. 100% OF THE SERVICE FEES PAID, DUE, OR OWING BY PARTNER TO THE COMPANY UNDER THE SERVICE OFFERING DURING THE 12-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE RIGHT TO ASSERT A CLAIM FIRST AROSE, MINUS ANY AMOUNTS PAID BY THE LIABLE PARTY DURING THE SAME PERIOD FOR ANY PRIOR LIABILITY UNDER THE SERVICE OFFERING; OR
      2. THE AMOUNT AS MAY OTHERWISE BE INDICATED IN THE SERVICE OFFERING. UNLESS OTHERWISE PROVIDED IN A SERVICE OFFERING, IF THE SERVICE OFFERING HAS BEEN IN EFFECT FOR LESS THAN 12 MONTHS, DIRECT DAMAGES WILL NOT EXCEED THE SERVICE FEES PAID TO DATE.
    2. IF A SERVICE DOES NOT REQUIRE PAYMENT OF SERVICE FEES, THE AMOUNT USED FOR CALCULATING THE MAXIMUM INDEMNIFICATION WILL BE:
      1. $10.00 PER SERVICE OFFERING; OR
      2. AS MAY OTHERWISE BE SET FORTH IN THE RELEVANT SERVICE OFFERING.
    3. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION OR DATA, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES.
    4. THE LIMITATIONS ON LIABILITY AND ALLOWABLE DAMAGES DESCRIBED ABOVE WILL NOT APPLY TO EITHER PARTY'S:
      1. LIABILITIES FOR UNAUTHORIZED USE OR UNAUTHORIZED DISPOSITION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY;
      2. VIOLATION OF ANY LICENSE GRANTS AND LIMITATIONS, OR CONFIDENTIALITY OBLIGATIONS IN THE AGREEMENT;
      3. OBLIGATIONS TO DEFEND AND PAY THIRD-PARTY CLAIMS (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING FROM PERSONAL INJURY OR DEATH);
      4. BREACH OF THE BUSINESS INTEGRITY PRINCIPLES SET FORTH IN THE PARTNER PROGRAM AGREEMENT; OR
      5. FRAUD OR GROSS NEGLIGENCE.
    5. THE COMPANY AND PARTNER AGREE THAT ALL LIMITATIONS ON LIABILITY AND EXCLUSIONS ON ALLOWABLE DAMAGES SHALL APPLY EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
    6. THE COMPANY AND PARTNER AGREE THAT A PARTY’S LIABILITY FOR ANY DAMAGES OR INDEMNITY SHALL BE REDUCED TO THE EXTENT THAT THE OTHER PARTY OR ITS AGENTS CAUSED OR CONTRIBUTED TO THE HARM GIVING RISE TO THE DAMAGES OR INDEMNITY OBLIGATION.
  19. Order of Precedence
    1. Order of Precedence. This Agreement, a Service Offering, and any associated documents underlying such, are to be collectively deemed “Program-specific terms.” In the case of a conflict between the terms of the documents composing Program-specific terms that is not expressly resolved therein, their terms will control in the following order, from highest to lowest priority:
      1. any Service Specific Terms;
      2. the Service Offering;
      3. this Agreement; and
      4. any Guide or Guides.
    2. Terms of an amendment control over the amended document and any prior amendments concerning the same subject matter.
  20. Miscellaneous
    1. Client Satisfaction Surveys. For the purpose of optimizing the Services, the Company may enable Clients or Partner to participate in Client satisfaction surveys, including but not limited to:
      1. using online Client satisfaction survey tools as provided by the Company; or
      2. sharing Client satisfaction results as collected by the Partner and presented in a format that is mutually acceptable to the Company and Partner.
    2. Bankruptcy and Liquidation Notification: A party which is subject to a bankruptcy, liqudation, or other similar event shall promptly notify the other party of such event. Such notification shall be treated as Confidential Information under this Agreement.
    3. Applicable Law and Venue.
      1. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Maryland without regard to its conflict of laws principles. Neither the Maryland Uniform Computer Information Transactions Act nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement. Each party waives any right or obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.
      2. Venue and Jurisdiction. Partner hereby consents to the personal jurisdiction of the courts of Maryland. The exclusive venue for any legal proceeding shall be the courts located in Baltimore City, Maryland unless the Company otherwise agrees, which consent may be withheld in the Company’s sole discretion. Partner waives any claim of forum non conveniens. Partner agrees that if Partner brings an action in a forum other than one authorized by this paragraph, the Company may move to dismiss the action and Partner shall be responsible for paying the Company’s reasonable attorneys' fees and court costs associated with the motion.
    4. Hold Harmless. Partner shall indemnify, defend, and hold FutureFeed and its shareholders, officers, directors, employees, agents and representatives harmless from and against any and all Claims and Proceedings arising out of, resulting from or related to: (a) Partner's unauthorized installation, use, sale or servicing of the Services; (b) any representation or warranty made by Partner, its agents, employees or representatives with respect to the Services not authorized by FutureFeed; or (c) any infringement of the intellectual property rights of any third party by Partner.
    5. Enforcement. Any failure by the Company to enforce any portion of this Agreement shall not be a waiver of the Company’s right to enforce that or any other portion of this Agreement. This Section shall survive the termination of the Agreement.
    6. Injunctive Relief. Either party may pursue injunctive relief against the other party in any forum:
      1. to protect its intellectual property rights;
      2. to enforce the confidentiality obligations of the other party; or
      3. for the enforcement or recognition of any award or order in any appropriate jurisdiction regarding its intellectual property rights arising out of or related to the Agreement.
    7. Attorney Fees. If either party employs attorneys to enforce any rights related to the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses if permitted by Laws.
    8. Assignment. Nither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Partner is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the Company, then the Company may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. The Company may also assign this Agreement (or delegate certain duties) to a Company Affiliate at any time upon notice, provided that such assignment (or delegation) will not materially impair Partner’s rights and remedies under the Agreement.
    9. Notices.
      1. Legal Notices. Legal notices under the Agreement (for example, notices related to assignment, termination, audit, and indemnification) must be in writing (which may be in electronic form if permitted by Laws) and addressed to the contacts provided by the receiving party.
        1. Notices from Partner. Legal notices from Partner must be signed by an authorized representative of Partner. Legal notices must be sent to:
          1. Via E-mail: Legal@FutureFeed.co
          2. Via postal mail or courier: ATTN: Legal Department, Continuous Compliance, LLC dba FutureFeed, 936 Fell Street, Baltimore, MD 21231 USA
        2. Notices from the Company. Partner agrees to receive notices via the Services, via postal mail/courier at the address provided during the application/enrollment process, and/or via E-mail at the addresses provided by during the application/enrollment process. The mailing and E-mail addresses can be updated by Partner via the Partner Portal or a notice to the Company. Partner agrees to keep such information current at all times.
      2. Receipt of Legal Notices. Legal notices will be deemed received two (2) business days after notice has been sent via email, or seven (7) business days after notice has been sent via air express courier (charges prepaid) or by postal service (postage prepaid, certified or registered, prepaid recorded delivery).
      3. Receipt of Business Notices. Business notices from the Company may be delivered to Partner via the Partner Portal and shall be deemed received after a Partner Representative designated as a Global Admin or Billing Admin has viewed the notice or seven (7) business days after posting, whichever is earlier.
      4. General. If the Company makes a Partner Portal available to Partner, Partner will ensure that its relevant Representatives become familiar with the Partner Portal and consult it on a regular basis to receive communications and business notices from the Company. Partner is solely responsible for managing which of its Representatives are authorized to access and act on the Partner Portal on Partner’s behalf.
    10. Entire Agreement. The Agreement shall constitute the entire agreement relating to the subject matter and engagements addressed therein and herein and shall supersede any prior or contemporaneous communications and agreements in such regard.
    11. Amendments. Except as otherwise expressly permitted in the Agreement, no amendment or modification of any provision of the Agreement will be effective unless it is in a writing accepted by authorized representatives of both parties. The Agreement may not be amended or modified by any Side Agreement. “Side Agreement” means any arrangement between the Company and Partner, written or oral, that purports to modify the Agreement and is not accepted by an authorized representative of the Company entity that accepted this Agreement. Side Agreements do not include the Company incentives, offers of rebates, promotions, discounts or extensions of payment terms offered by the Company when such are made available pursuant to a separate written agreement generally available to the Company’s partners.
    12. Force Majeure. Neither party will be liable for failing to perform under the Agreement to the extent that a Force Majeure Event caused the failure provided the party subject to the Force Majeure Event did not contribute to or cause the Force Majeure Event and could not reasonably have mitigated the impact of such event. The party subject to the Force Majeure Event must promptly notify the other party in writing and must perform the obligations that were not performed as soon as the Force Majeure Event stops. This section will not apply to any payment obligations under this Agreement.
    13. Severability. If a court of competent jurisdiction finds any term of the Agreement illegal, invalid, or unenforceable, the remaining terms will remain in full force and effect.
    14. Equitable Remedies. Subject to a court's finding on the merits of a party's action related to a breach, the party bringing such action shall be entitled to seek injunctive relief, including relief that causes the return of that party's data or specific performance, provided such party posts a bond of an amount specified by the court. The parties further acknowledge that monetary relief may be insufficient to render a non-breaching party whole in the event of a breach of this Agreement, and the parties agree that specific performance of the breaching party's obligations is available to the non-breaching party as a remedy.
    15. References.The section headings and titles of the provisions of all parts of the Agreement are for convenience only and do not affect the interpretation of any provision. Unless specifically stated, the plural shall include the singular. URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs. All references to days will mean calendar days unless otherwise specified.
    16. English Language. Unless required by Laws or as otherwise provided in the Agreement, the English language version of all parts of the Agreement controls, and communications and notices under the Agreement must be in the English language to be effective. Any translations of the Agreement, in whole or in part, that the Company may provide as a courtesy are not official or binding.
    17. Survival. Except as otherwise expressly provided, the provisions of the Agreement requiring performance (or applying to events that may occur) after termination will survive termination of the Agreement, including any and all terms pertaining to confidentiality, indemnification, allocation and limitation of risk and liability, any perpetual licenses, and ownership.
    18. Counterparts. The Agreement may be accepted in counterparts, which together constitute one instrument.
    19. Insurance. Each party shall maintain, at its sole cost and expense, the minimum valid, effective, and collectible insurance to cover its risks associated with performing under this Agreement.
      1. Certificate of Insurance. Each party may request from the other a certificate of insurance demonstrating such insurance coverage.
      2. Claim Cooperation. Each party shall reasonably assist and cooperate with the other regarding the adjustment of all claims arising out of this Agreement, including cooperating with any insurance companies in any litigation or other disputes relating to such claims.
      3. Additional Insured. Each party shall ensure that the other party is a named insured on their respective, relevant insurance policies. Neither party's insurance shall terminate, expire, be subject to non-renewal, or materially altered, except on 30 days' prior written notice to the other party. The insurance shall provide coverage to the other party which is as broad as provided to the named insured; provided, however, that the foregoing will not apply with respect to the Workers' Compensation or Employer's Liability Insurance.
      4. Impact on Agreements. None of the insurance requirements as to the type and limits of insurance to be maintained by either party is intended to, and such requirements should not be construed to, limit in any manner the insured's obligations under any Agreement, Addendum, or other such document.
      5. Insurance Changes. Neither party shall cancel or materially alter insurance coverage without providing thirty (30) days prior written notice to Client.
      6. Subrogation. Each party (the "Primary Party") hereby waives all rights of recovery against the other party (the "Secondary Party") on account of loss or damage occasioned to the Primary Party or others under the Primary Party's control or for whom it is responsible to the extent such loss or damage is insured against under any of the Primary Party's insurance policies which may be in force at the time of the loss or damage or would have been insured against if the Primary Party had complied with its obligations under this Section.
    20. Escalation.
      1. Except as otherwise provided below, the following procedures will be followed in any and all legal controversies or disputes arising out of or related to this Agreement (“Disputes”), which the parties cannot informally resolve at an operational level. The aggrieved Party will notify the other Party in writing of the nature of the Dispute with reasonable specificity. Representatives for the respective Parties will meet (telephonically or in person) within fourteen (14) business days after the date of the written notification of the Dispute to seek to reach an agreement on the Dispute and corrective action(s) to be taken by the respective Parties. If the representatives are unable to agree on corrective action, senior managers of the Parties having authority to resolve the Dispute (“Management”) will meet or otherwise act to facilitate an agreement within fourteen (14) business days after the date of the written report from the representatives. If Management cannot resolve the Dispute or agree upon a written plan of corrective action within seven (7) days after their initial meeting, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either Party may exercise their individual rights under law or in equity. Except as otherwise specifically in this section, neither Party will initiate litigation unless and until this Dispute resolution procedure has been employed or waived. Each Party agrees that it will continue to meet its obligations under the terms and conditions of this Agreement, except to the extent otherwise provided in the section captioned Termination, above. Any and all time periods set forth above may be extended by mutual consent of the Parties. The content of any and all discussions, negotiations, agreements, and/or disclosures made during this Dispute resolution process set forth in this section will be Confidential Information and as such will not be released to the public, nor will it be admissible in any court proceeding that a party or the parties may initiate pursuant to this section.
      2. Notwithstanding anything to the contrary, nothing in this section will prevent or delay either Party from exercising its right to terminate in accordance with this Agreement and each Party is authorized to institute formal proceedings at any time to: (i) avoid the expiration of any applicable limitations period, (ii) obtain equitable relief, (iii) preserve a superior position with respect to other creditors, (iv) resolve a party’s rights with respect to intellectual property, Confidential Information, or compliance, or (v) obtain injunctiverelief.

Version: 22.05b

Change Log:

22.05b - 16-MAY-2022 - Added hold harmless clause. Clarified warranty disclaimer.

22.05a - 02-MAY-2022 - Removed reference to the insurance page.

22.04h - 29-APR-2022 - Updated insurance language to point to the insurance page; added clarifying language to the insurance section; corrected an error in the business conduct subsection.

22.04g - 27-APR-2022 - Updated indemnification language

22.04f - 25-APR-2022 - Added insurance and escallation provisions.

22.04e - 24-APR-2022 - Updated definitions section to refer to definitions page

22.04d - 23-APR-2022 - Updated termination for cause provisions

22.04c - 22-APR-2022 - Added a refund period

22.04b - 21-APR-2022 - Conforming amendments made

22.04a - 18-APR-2022 - Updated to reference additional pages, including the Support page

22.01a - 15-JAN-2022 - Initial Online Version Publication

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