This Partner Agreement (this “Agreement”) is made and entered into by and between GoCo.io, Inc., a Delaware corporation, (the “Company“) and the undersigned reselling partner (the “Partner“) (individually, a “Party” and collectively, the “Parties”), entered into as of the date the Partner signs this Agreement (the “Effective Date“).
THIS AGREEMENT GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO YOUR RIGHTS TO ACCESS, USE MARKET, PROMOTE, ADVERTISE AND LICENSE SUBSCRIPTIONS TO THE SERVICES PROVIDED BY THE COMPANY TO CLIENTS AND THEIR EMPLOYEES. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BY CHECKING THE BOX AND CLICKING ON “I AGREE” TO THE TERMS OF THIS AGREEMENT BEFORE YOU MAY ACCESS, USE MARKET, PROMOTE, ADVERTISE AND LICENSE SUBSCRIPTIONS TO THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW, YOU MAY NOT ACCESS, USE MARKET, PROMOTE, ADVERTISE AND LICENSE SUBSCRIPTIONS TO THE SERVICES. BY SIGNING ON TO THIS AGREEMENT, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT.
This Agreement includes the terms and conditions applicable between the Company and Partner with respect to the disposition by Partner, and use by its participating Clients and their Employees, of the GoCo Platform.
NOW, THEREFORE, for the mutual promises contained herein and for other good and valuable consideration set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.1 ”Clients” means all entities that contract through Partner to acquire the right to allow their Employees or Contractors or any other individuals that such entities authorize to use the Services provided hereunder.
1.2 ”Client Data” means all information processed or stored on computers or other electronic media by Client, or that is generated or gathered by Partner for, or in relation to, the Client or its Authorized Users, or that is otherwise generated or gathered on Client’s or its Authorized Users behalf by Partner (or any other entity) including all data used to set up and maintain the Client and its Authorized Users access, use and associated records, or provided to Company for such processing or storage, as well as any information derived from such information. Client Data includes, without limitation: (a) information on paper or other nonelectronic media provided to Company for computer processing or storage, or information formerly on electronic media; (b) information provided to Company through the Services by Clients or Clients’ Authorized Users or by other third parties; and (c) Personal Information provided by or for such Clients’ and its Authorized Users. For avoidance of doubt, if a Client ceases its relationship with Partner in relation to an GSA associated with this Agreement and the Services provided hereunder, and changes its representation to another reselling partner, all Client Data will remain the property of such Client.
1.3 ”Confidential Information” means the terms of this Agreement, all aspects relating to the Software and any other materials provided to Partner as part of the Services, and all other confidential and/or proprietary information of either Party; provided that, Confidential Information does not include information that is (i) rightfully in the receiving Party’s possession without prior obligation of confidentiality from the disclosing Party; (ii) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other Party); (iii) rightfully furnished to the receiving Party by a third party without confidentiality restriction; or (iv) independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information. For avoidance of doubt, Confidential Information excludes Personal Information, which is treated separately under this Agreement.
1.4 ”Contractors” means all third parties that are not Employees (or Partners) but are otherwise affiliated with Clients and are authorized by such Clients to use the Services.
1.5 ”Employees” means Active Employees as defined in Section 4.4 below and Terminated Employees associated with Clients that are allowed access to the Services.
1.6 ”Authorized Users” means any and all Contractors, Employees, and any other individuals that a Client extends and authorizes to use the Services provided hereunder.
1.7 ”Improvements” means all improvements, enhancements, patches, fixes upgrades, new versions, new modules or functionality associated with the Software, and all updates and revisions to any other Services or methodology associated with any aspect of the Services; in each case that are developed after the Effective Date of this Agreement.
1.8 ”GSA” shall mean the GoCo Service Agreement available on the web at https://www.goco.io/legal-stuff/gsa/ which includes, among other things: (i) any obligations of Partner to provide support to such Clients and their Authorized Users, and (ii) any obligations of the Client to ensure that each Authorized User has his or her own user account and that each such Authorized User agrees not to share his or her password and/or user account with any other individuals.
1.9 ”Personal Information” shall mean (i) any information, in any form, that identifies or relates to an individual or that could reasonably be used to identify an individual; (ii) any information that is governed, regulated or protected by one or more laws relating to information privacy and security; and (iii) any other information protected by law or contract that is collected, created, maintained, stored, transmitted, used, disclosed, or otherwise processed by either Party including information that is subject to the Payment Card Industry Data Security Standard.
1.10 ”Partner Documentation” means all documentation and marketing materials provided by Partner to Clients and/or Authorized Users that relate to the Services.
1.11 ”Partner Staff” means administrative staff of the Partner.
1.12 ”Sales Producer” means any individual employed or contracted by the Partner to produce revenue through sales activity.
1.13 ”Services” means the provision of the GoCo Platform (the “Software”).
1.14 ”Services Scope” means the scope of the Services that will be provided by the Company as specified in Exhibit A of this Agreement.
1.15 ”Term” means the term specified in Exhibit A.
1.16 ”Terminated Employees” means former Employees of Clients that are not employed by Clients anymore, regardless of the reason, but still have access to use the Services.
1.17 ”Territory” means the continental United States of America.
2.1 Partner Appointment. Subject to the terms and conditions of this Agreement, Company hereby appoints Partner as a non-exclusive Partner of the Company relating to the marketing, promotion, advertising and licensing of the Services for the Term.
2.2 No Sub-Appointments. Partner agrees and shall not appoint any other sub-Partner (including, without limitation, Partner’s current or future subsidiaries or affiliates) to license, sublicense, or otherwise convey any license rights to the Services hereunder without the Company’s prior written consent.
2.3 Change in Circumstances. If Partner: (i) changes its business function such that it is no longer engaging as a Partner, or (ii) is the subject of a court order entered in a court of competent jurisdiction or of an adverse decision by a regulatory administrative agency or body that requires Partner to stop engaging in the business in which it engages as of the Effective Date, then the appointment of Partner as a nonexclusive Partner may be rescinded at the Company’s full discretion and without the need of a written notice, and this Agreement shall immediately terminate.
GRANT OF RIGHTS
3.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants to Partner, and Partner hereby accepts, a limited, non-exclusive, non-transferrable, non-sublicensable subscription, for the Term, to access and use the Services and to market, promote, advertise and license the Services solely for the purpose of facilitating the granting of subscriptions to access and use the Services within the Services Scope to Clients and Authorized Users. Partner (and Clients and their Authorized Users) may only use the Services for the purposes specified, and according to the restrictions found in the restrictive covenants contained, in this Agreement. Nothing in this Agreement shall be deemed to limit Company’s rights to use, license, sell, support or market the Services, or develop Improvements of the Services or any other software or services. For avoidance of doubt, Partner shall have no rights under this Agreement to any Improvements to the Services, unless this Agreement is amended by mutual consent to include such Improvements to the Services.
3.2 Ownership of Services. Title to and ownership of the Services including the Software that is part of the Services, including all intellectual property rights associated therewith, shall remain solely and exclusively with the Company, and the Company shall also own all rights, title and interest in all Improvements to the Services.
3.3 Ownership of Client Data. Neither the Company nor Partner owns Client Data. Client Data is owned by Clients.
4.1 Fees. In consideration of the granting of rights related to the Services and the Company’s performance under this Agreement, Partner shall pay fees in accordance Exhibit A. The Company will monitor the usage of the Services by Clients and Authorized Users. Any amount due and payable to Company pursuant to this Agreement and not paid by Partner within fifteen (15) days after the due date shall bear interest retroactively from the due date at the rate of one and one-quarter (1 1/4%) percent per month. Partner’s failure to timely pay any fee (excluding only those amounts being disputed by Partner relating to the number of Active Employees that is used for charge calculations) thirty (30) days or more overdue is a material breach subject to the terms of Section 11.2 and will trigger the right of the Company to suspend Partner’s access to and use of the Services without notice or any applicable cure period until such time as Partner remits all past and current fees due to the Company. In the event that Company needs to pursue legal action due to lack of payment of fees by Partner, the Partner shall be liable for and shall pay (and/or reimburse Company) for all costs of collection, including reasonable attorney’s and collection agency fees and costs incurred by Company in connection with the collection of any and all sums due and payable by Partner to Company pursuant to this Agreement. All fees paid by Partner are non- refundable. All fees shall be billed and paid in United States dollars.
4.2 PARTNER ACKNOWLEDGES AND HEREBY AGREES THAT WHEN IT INDICATES ACCEPTANCE OF INVOICES AND/OR NOTICES ELECTRONICALLY, EITHER THROUGH THE SERVICES OR VIA OTHER ELECTRONIC MEANS, SUCH ACCEPTANCE WILL CONSTITUTE ITS LEGAL ACCEPTANCE AND INTENT TO BE BOUND BY AND PAY FOR SUCH AGREEMENTS, INVOICES AND/OR NOTICES.
4.3 Changes in Fees. After the Initial Term, the Company shall have the right (in its sole discretion) to change fees, the basis upon which fees are calculated, and/or to add or delete services by providing sixty (60) days prior written notice to the Partner. Such replacement fee terms will replace those found in Exhibit A to this Agreement.
4.4 Calculations. For calculation purposes, an employee shall be deemed an “active employee” during any applicable billing period if through the Service, any of the following occurs: (i) a record for such employee exists on GoCo Platform and can be accessed by Client and employee (ii) time worked or time off request has been entered for such employee; (iii) records have been included for such employee for the purpose of processing payroll; or, (iv) such employee has been marked as an “active” status during the period (“Active Employee”). For avoidance of doubt, the Active Employee count shall not include Contractors, Partner Staff, Sales Producer or Terminated Employees.
OBLIGATIONS OF COMPANY
5.1 Provision of Services: The Company shall provide the Services to Partners and Authorized Users.
5.2 Data Management & Security.
(a) The Company shall: (i) only access, process, or otherwise use Client Data as necessary to provide the Services (such allowable use to include provision and use by authorized subcontractors and vendors) and repair and improve the Services; (ii) shall not give any of its employees or subcontractors or vendors access to Client Data except to the extent that each such individual needs access to facilitate performance under this Agreement and is subject to a written nondisclosure agreement with the Company protecting such Client Data; and (iii) shall not give a Client access to the Client Data of Authorized Users of a different Client. Notwithstanding the foregoing, the Company may disclose Client Data as required by applicable law or by proper legal or governmental authority. The Company shall give Partner (and the applicable Authorized Users) prompt notice of any such legal or governmental demand and will reasonably cooperate with Partner (and the applicable Authorized Users) in any effort to seek a protective order or otherwise to contest such required disclosure, at such Partner’s (or applicable Client’s) expense.
(b) As between the Partners and the Clients, the Clients of Partner possess and retain all right, title, and interest in and to Client Data, and the Company’s use and possession thereof is solely on Client’s behalf. Partners, on behalf of its Clients, may access and copy Client Data that is in the Company’s possession at any time, and the Company shall reasonably facilitate such access and copying promptly after Partner’s request.
(c) The Company shall exercise commercially reasonably efforts to prevent unauthorized exposure or disclosure of Client Data. The Company shall observe the Data Security, Privacy, Data Retention and e-Discovery policy that is posted on the Company web site at https://www.goco.io/legal-stuff/privacy-policy/, including without limitation policies regarding retention and deletion of Client Data. Except as permitted in such Company policies, the Company shall not erase Client Data, or any copy thereof, without the Partner’s (on behalf of the Client) or the applicable Client’s prior written consent and shall use best efforts to follow any written instructions from the Client regarding retention and erasure of such Client Data.
(d) The Company shall not permit any subcontractor to access Client Data unless such subcontractor is subject to a written contract with the Company protecting the data, with terms reasonably consistent with those of this Section 5.1. The Company shall exercise reasonable efforts to ensure that each subcontractor complies with all of the terms of this Agreement and any applicable GSA related to Client Data.
(e) The Company shall comply with all applicable laws and regulations governing the handling of Client Data and shall not engage in any activity related to Client Data that would place Partner (or the applicable Client) in violation of any applicable law, regulation, government request, or judicial process.
(f) The Company shall implement and maintain a program for managing unauthorized disclosure or exposure of Client Data stored by or accessible through the Services (“Data Breaches”). In the event of a Data Breach, or in the event that the Company suspects a Data Breach, the Company shall (i) promptly notify Partner (and the affected Clients) by telephone and (ii) cooperate with Partner (and the applicable Client) and law enforcement agencies, where applicable, to investigate and resolve the Data Breach, including without limitation by providing reasonable assistance to Partner (and the applicable Client) in notifying affected Employees. The Company shall give Partner prompt access to such records related to a Data Breach as Partner may reasonably request; provided that the Partner shall only provide records associated with and related to any particular Client to such Client (and not the records of other Clients), and further provided that the Company shall not be required to provide the records for any other Partners or Clients that were not affected by a Data Breach.
5.3 Technical Assistance. Subject to, and according to, the terms of Section 6.4 herein, the Company shall provide Partner with technical assistance, as required, at the commencement of Partner’s activities relating to this Agreement to allow Partner to receive the Services and to market, promote, advertise and cause the granting of subscriptions to the Services at the commencement of its activities relating to this Agreement, and in maintaining the operation of the Services including the correction of all defects relating thereto.
5.4 Training. The Company shall provide documentation and training to the Partner, as required, to allow Partner to satisfy its obligations hereunder, the costs for which training shall be set forth in Exhibit A (or as mutually agreed upon by the Parties).
OBLIGATIONS OF PARTNER
6.1 Promotion of Services. Partner shall: (i) use its best efforts to market, promote, advertise and license the Services within the Territory during the Term of this Agreement, (ii) perform its obligations under this Agreement and cause its Clients and their Authorized Users to comply with their obligations under any related agreements, and (iii) cooperate with the Company, as reasonably necessary, to perform its obligations under this Agreement. In promoting or advertising the Services, Partner shall not make any statement that is harmful, derogatory, defamatory, disparaging, critical or harmful to the Company or the Services, and shall not use unethical, misleading, deceptive, or illegal practices.
6.2 Preconditions to Client Engagement. As a precondition to allowing use of the Services by any Client in relation to a Partner engagement with such Client and with respect to each Authorized User associated with such a Client, Partner shall require and cause all Clients and Authorized Users to enter into an GSA. Partner shall comply with, and shall cause all of its Clients and their Authorized Users to comply with, the terms and conditions of each such GSA that it executes with Clients and that are executed by its Clients’ Authorized Users.
6.3 Access. Partner shall, and shall cause its Clients and their Authorized Users to, set up, access and use the Services in accordance with reasonable security requirements and protections in place. Partner shall be responsible for contracting with Clients, setting up Client and Authorized User access, collecting any additional fees Partner independently imposes on Clients (if any), maintaining the ability of Clients and their Authorized Users to connect associated with permissions required to access and use the Services, and receiving and providing first responses and trouble-shooting support for customer issues and complaints according to the terms in Section 6.4 herein. Company shall provide Partner and its representatives with remote access to the GoCo Platform, as Company deems reasonably necessary, in order for Partner to perform its obligations under this Agreement, and shall provide, using its best efforts, timely notice to Partner of any change or modification to the GoCo Platform that the Company reasonably expects will affect the access or use of the Services by Partner, Clients, or Authorized Users. Partner shall promptly notify Company of any unauthorized access or use of the Services by any third party, or any use by Partner’s Clients or their Authorized Users that is not in accordance with the terms of this Agreement or the applicable GSA, in each case of which Partner becomes aware. To the extent required, the Company shall be granted access by Partner to such Partner and/or Client systems and/or data including Client Data that are required for Company to perform its obligations under this Agreement and the applicable GSA.
6.4 Support and Maintenance. During the Term of this Agreement, Partner shall: (i) train its support personnel and maintain adequate support personnel to be able to assist Clients and their Authorized Users with ongoing support including assistance with the configuration, access and use of the Software that is part of the Services, (ii) directly receive and handle all Client and Authorized User support and maintenance requests, (iii) notify and collaborate with the Company to resolve any issues, or aspects of issues, that Partner is not expected to be able to handle on its own. The Company shall provide reasonable assistance to Partner with (i) any issues that Partner is not expected to be able to handle to the extent feasible to cause the Services to function substantially in accordance with the documentation, and (ii) any enhancements, modifications, patches, fixes, or updates to the Services (including related documentation) that it makes available to Partner, if any. The Company may provide assistance through any available means including by email, telephone or other electronic medium. Unless an alternative procedure for resolving issues with the Services is specified in the applicable GSA, the following procedure shall be followed:
(a) If Partner encounters a problem relating to the use of the Services, or if a request is received from a Client and/or Authorized User relating to the Services, Partner shall use commercially reasonable efforts to (i) characterize the nature of the issue and (ii) have its support personnel attempt to resolve the issue. Only after Partner’s support personnel determine that such issue cannot be resolved by Partner internally, Partner will submit an request to the Company that includes a description of the problem including the aspects of the Services involved, the Client and Authorized Users affected (if applicable), the date and time the problem occurred, and any other details that are necessary for Company to provide assistance.
(b) If Company determines, in its reasonable judgment, the request for support submitted by Partner is caused by user error or error in user equipment or networks, then the responsibility for resolving the issue relating to the Support Request will be handed back to the Partner for resolution. Otherwise, the Company will use commercially reasonable efforts to resolve the issues relating to each Support Request and will keep Partner informed of actions being taken and the timelines associated with such actions.
(c) In situations requiring immediate action and expedited resolution including situations in which (i) the Services cannot be accessed by normal means, (ii) the Services can be accessed but are malfunctioning due to a defect, virus or otherwise, (iii) the data entered into the Services or outputted by the Services is defective, or (iv) it appears as though a system or data security breach has occurred, the Company shall use its best efforts to respond in a reasonable manner within a reasonable timeframe.
(d) In situations in which the problem is related to any third party software, interfaces, or libraries and/or compatibility with Client or Authorized User systems and software in relation to the Services, Company and Partner shall collaborate to work with applicable third parties to resolve the issues.
6.5 Restrictions on Use. Partner shall, and shall cause its Clients and their Authorized Users to, only operate and use the Services for the purposes described in this Agreement and any applicable GSA. Partner shall not, and shall not permit Clients or their Authorized Users, or any other third parties to: (i) copy, reproduce, republish, print, license, sell or otherwise transfer, decompile, disassemble or otherwise reverse engineer, modify, adapt, or develop any derivative work of, the Services or merge the Services with any other software (in each case, in whole or in part); (ii) use the Services for time-sharing, networking, rental or service work; (iii) use the Services for third party transactions or publicly perform or display the Services, except as allowed herein, (iii) remove, obscure, or alter any of the trademarks, patent or copyright notices, or other confidential or proprietary notices that exist in association with the Services; or (iv) access the Services in order to build a competitive Services or services, or copy any aspect of the Services.
6.6 Complaints. Partner shall promptly notify Company of any Client and/or Authorized User complaints that relate to the Services and shall provide reasonable assistance upon request of Company in its efforts to respond to such requests and correct any issues.
6.7 Non-Compete. During the Term, Partner shall not: (i) develop services, or assist a third party in developing services, that are the same or similar to the Services or any program, business, or service that otherwise competes with the Services provided by the Company hereunder (either by itself or in conjunction with any other entities), or (ii) engage in any activities or enter into any agreements that would impair in any material respect its ability to perform its obligations or carry out its duties hereunder.
6.8 Maintenance of Records & Audits. Partner shall maintain accurate records in connection with its activities relating to this Agreement and shall allow, upon notice within a reasonable time period and once per year, the Company to audit the Partner’s records relating to the use, licensing, sublicensing or any other activities relating to the Services to compare to the Company’s electronically gathered records. If any audit discloses any error or breach of this Agreement, then Partner shall promptly correct such error but in case later than thirty (30) days after notice of such error or breach, or the Company will have the option to immediately terminate after the end of the thirty (30) day period.
6.9 Compliance with Laws. Partner shall comply with all applicable laws and regulations in complying with its obligations and duties under this Agreement, including but not limited to any such laws relating to Privacy and the protection of personally identifiable information.
6.10 Consent. Partner acknowledges and agrees that any breach or threatened breach by Partner of this Section 6 may cause the Company irreparable harm for which the Company would be without an adequate remedy at law. Therefore, in the event of a breach or threatened breach of this Section 6, Partner hereby consents to the entry of an injunction and waives the posting of bond or showing of actual damages as a condition for obtaining injunctive relief. Injunctive relief shall not be deemed the exclusive remedy for a breach of this Section 6 by Partner, but shall be in addition to any other remedies available to the Company at law or in equity.
7.1 Confidential Business Information Obligations. Each Party agrees: (i) to use the confidential information of the other Party (the “Disclosing Party”) only for the purposes associated with, and in accordance with, the terms and conditions of the Agreement; (ii) to use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care consistent with its past practices and any applicable Laws, and to safeguard the Disclosing Party’s confidential information that is provided to it; and (iii) to only disclose confidential information provided by the Disclosing Party only, as allowed, to (1) employees, agents, affiliates and subcontractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written or ethical obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by the Agreement, or (2) if required by law or regulatory authorities, provided the Party which has received the confidential information has given the Disclosing Party prompt notice before disclosure so that it may perform actions in an attempt to prevent disclosure at its sole option. Each Party will protect from disclosure any confidential information disclosed by the other Party for a period commencing upon the disclosure date until three (3) years thereafter.
REPRESENTATIONS & WARRANTIES; DISCLAIMERS, LIMITATIONS, WAIVERS
8.1 Company Warranty. The Company represents and warrants that the Software, under normal operation as specified in the published documentation for the Services and when used as authorized herein (and in any applicable GSA), will perform substantially in accordance with such documentation during the Term. The Company’s sole obligation, and Partner’s exclusive remedy for any breach of the warranty in this Section 8.1 herein is limited to the Company’s reasonable commercial efforts to correct the non-conforming Services at no additional charge; provided that Partner provides to Company prompt and accurate notice, sufficient evidence of the non-conformity, and sufficient assistance to enable the Company to reproduce and/or verify, and facilitate correction of, the non-conformity.
8.2 Partner Warranty. Partner represents and warrants that it shall use its best efforts to promote, sell, maintain the goodwill associated with, set up access for Clients and Authorized Users, and maintain, monitor, assist with correction of problems with access, use and operation of the Services.
8.3 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other that (i) it has all requisite power and authority (corporate and otherwise) to enter into and perform its obligations under the Agreement; (ii) its execution and delivery of the Agreement does not and will not conflict with or result in a breach of or a default under its respective organizational instruments or any Agreement, instrument, order, or law applicable to it or by which it may be bound including all information privacy and security laws; and (iii) the Agreement has been duly and validly executed and delivered by it and constitutes its valid and legally binding obligation, enforceable with its terms, except as enforcement may be limited by laws of bankruptcy or insolvency or other laws of general application relating to or affecting the enforcement of creditor’s rights.
8.4 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY THE COMPANY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND THE COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET PARTNER’S, CLIENTS’ OR ANY AUTHORIZED USERS’ REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED.
8.5 LIMITATION ON LIABILITY. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO PARTNER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO PARTNER FOR ANY ACTION BY, OR IN RELATION TO, ANY CLIENT OR AUTHORIZED USER THAT IS OR WAS ENGAGED BY SUCH PARTNER IN RELATION TO THIS AGREEMENT OR ANY APPLICABLE GSA WHATSOEVER. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY PARTNER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY.
8.6 WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
9.1 Company Indemnity. Company will defend, indemnify and hold harmless Partner, its subsidiaries, parent corporations, Affiliates, independent contractors, employees, agents, and successors and assigns, from and against any amounts payable resulting from, arising out of or involving any third party claim, notice, demand, action, proceeding, suit, litigation, investigation, judgment, expense, or liability, against the indemnified Party (a “Third Party Claim”), including reasonable attorney’s fees and costs or as the amount associated with a written negotiated settlement that is pre-approved by Company, related to: (i) Company’s breach of this Agreement; (ii) noncompliance by Company with any applicable federal, state or local law, statute, rule, regulation or ordinance in connection with the actions contemplated by this Agreement; (iii) Company’s and its employees or agents acts or omissions or resulting from any commitments in violation of this Agreement that are made or entered into by Company, its representatives or their agents or employees; and (iv) infringement of third party intellectual property by the Services provided by Company hereunder (each, a “Company Indemnified Item” and collectively, “Company Indemnified Items”) infringes a patent, copyright, or trademark, or misappropriates a trade secret or other intellectual property right; provided that, Company will not be obligated to indemnify Partner to the extent that the alleged infringement, misappropriation or violation is caused by: (a) combination, operation or use of the Services with any other software, hardware, technology, data, or other materials; (b) use for a purpose or in a manner for which the Services were not designed; (c) use after Company notifies Partner to cease such use due to a possible or pending infringement claim; (d) any modifications to the Services including the Software and the data derived from the use of such Services made by any person without the prior consent of the Company. For avoidance of doubt, the Company provides no indemnity to Partner for any actions or, or the consequences of any actions by, Clients or Employees.
9.2 Partner Indemnity. Partner will defend, indemnify and hold harmless Company, its subsidiaries, parent corporations, Affiliates, independent contractors, employees, agents, and successors and assigns, from and against any amounts payable resulting from a Third Party Claim, including reasonable attorney’s fees and costs, related to: (i) Partner’s breach of this Agreement; (ii) noncompliance by Partner with any applicable federal, state or local law, statute, rule, regulation or ordinance in connection with the actions contemplated by this Agreement; (iii) Partner’s and its employees or agents acts or omissions or resulting from any commitments in violation of this Agreement that are made or entered into by Partner, its representatives or their agents or employees; and (iv) any Services or service offered by Partner hereunder (each, a “Partner Indemnified Item” and collectively, the “Partner Indemnified Items”) infringes a patent, copyright, or trademark, misappropriates a trade secret or other intellectual property right.
9.3 Procedures Relating to Indemnification.
(a) In order for an indemnified Party to be entitled to any indemnification provided for under this Section 8.3 in respect of, arising out of, or involving a Third Party Claim, such indemnified Party shall notify the indemnifying Party in writing, and in reasonable detail to the extent known, of the Third Party Claim promptly after receipt by such indemnified Party of notice of the Third Party Claim; provided that, failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnifying Party shall have been actually prejudiced as a result of such failure. The indemnified Party has an ongoing obligation to deliver to the indemnifying Party, within ten (10) Business Days after the indemnified Party’s receipt thereof, copies of any future notices and documents (including court papers) received by the indemnified Party relating to the Third Party Claim that the indemnifying Party has not otherwise received.
(b) If a Third Party Claim is made against an indemnified Party, and the indemnifying Party acknowledges in writing to the indemnified Party that the indemnifying Party shall be obligated under the terms of its indemnity hereunder in connection with such Third Party Claim, then the indemnifying Party shall be entitled if it so elects, at its own cost, risk and expense, to assume the defense thereof with counsel selected by the indemnifying Party and reasonably satisfactory to the indemnified Party. The indemnifying Party will have fifteen (15) calendar days from receipt of any such notice of a Third Party Claim to give notice to assume the defense thereof. If the indemnifying Party assumes such defense, the indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying Party, it being understood that the indemnifying Party shall control such defense. If the indemnifying Party fails to assume the defense of a Third Party Claim within fifteen (15) calendar days after receipt of such notice, the indemnified Party against which such Third Party Claim has been asserted will (upon delivering notice to such effect to the indemnifying Party) have the right to undertake, at the indemnifying Party’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnifying Party.
(c) The indemnified Party will notify the indemnifying Party in writing as soon as practicable of its discovery of any matter that does not involve a Third Party Claim being asserted against or sought to be collected from the indemnified Party, giving rise to the claim of indemnity pursuant hereto. The failure so to notify the indemnifying Party shall not relieve the indemnifying Party from liability on account of this indemnification, except to the extent the indemnifying Party shall have been actually prejudiced as a result of such failure. The indemnifying Party will have fifteen (15) calendar days from receipt of any such notice to give notice of dispute of the claim to the indemnified Party. The indemnified Party will reasonably cooperate and assist the indemnifying Party in determining the validity of any claim for indemnity by the indemnified Party and in otherwise resolving such matters. Such assistance and cooperation will include providing reasonable access to and copies of information, records and documents relating to such matters, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
10.1 Dispute Resolution. In connection with any dispute between the parties arising from this Agreement of any applicable GSA, the Parties shall attempt to resolve such dispute by utilizing the procedure specified in this Article 10.
(a) Negotiation by Individuals: To commence negotiation of a dispute, either Party may send written notice (“Notice”) to the other Party containing a concise summary of the dispute and requesting negotiations. Within seven (7) days following receipt of such Notice by the other Party, each Party will designate in writing to the other Party one or more individuals having general responsibility for this Agreement and authority to negotiate a settlement of the dispute (“Individuals”), The chosen Individuals shall make such investigation as they deem appropriate and will promptly, but in no event later than thirty (30) days from the date of the Notice, communicate to attempt to resolve the dispute. If the dispute has not been resolved within forty five (45) days of the first communication between such Individuals in furtherance of resolving the dispute, resolution shall then be attempted by representatives as specified in Section 10(b) below. The submission of a Notice shall toll any applicable statutes of limitation or prescriptive periods under this License Agreement, pending the settlement or abandonment of the dispute.
(b) Negotiation by Representatives: If the dispute is not resolved within forty five (45) days of the first communication between the Individuals (“45-day Individual Negotiation Period”) or within such further period as the parties may agree, the Parties will elevate the dispute to other representatives (“Representatives”). Specifically, within seven (7) days after the end of the forth five (45) day Individual Negotiation Period, each Party shall nominate one or more Representatives with a title of owner or vice president or higher who shall attempt to resolve the dispute. If the dispute is not resolved within thirty (30) days after both Representatives have been nominated (“30-day Representative Negotiation Period”), arbitration proceedings may be commenced by either Party, as set forth immediately below in Section 10(c).
(c) Arbitration: Arbitration shall commence upon written notice (“Arbitration Notice”) by either Party to the other and to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Such dispute shall be conducted before a single arbitrator. Such arbitrator shall be a lawyer knowledgeable and experienced in the field of software licensing, and shall not be an affiliate, employee, consultant, officer, director or stockholder of either Party, or otherwise have any current or previous relationship or association with either Party or any of its employees, contractors or vendors. Each Party shall designate in writing a list of potential arbitrators within thirty (30) days of the Arbitration Notice. The parties consent to use any arbitrator whose name appears on both Parties’ list of potential arbitrators, subject to the arbitrator’s availability. If no arbitrator appears on both Parties’ lists, or if the Parties cannot agree on an arbitrator within sixty (60) days of the Arbitration Notice, the arbitrator shall be selected by the office of the JAMS in Harris County, Texas or, if such office does not exist, the JAMS office nearest to Houston, Texas. After an arbitrator is selected, the Parties shall promptly consult with the arbitrator to determine the details of the arbitration process including a schedule and the dates and location of the arbitration hearing. The arbitrator’s decision shall be final and legally binding on both Parties and judgment may be entered thereon. Unless provided otherwise herein, the arbitration shall be governed by the applicable JAMS rules, including the Comprehensive Arbitration Rules and Procedures, applicable at the time of the Notice of Arbitration. Each Party shall be responsible for its share of the costs of the arbitration hearing as specified in the JAMS rules. In the event a Party fails to participate in the arbitration after having been provided Notice, unsuccessfully challenges the arbitrator’s decision, or fails to comply with the arbitrator’s decision, the other Party is entitled to costs of the associated litigation, including reasonable attorney’s fees for having to compel arbitration or defend or enforce the award.
10.2 Quiet Use; Continued Performance. Each Party shall continue its performance hereunder during the pendency of the internal dispute resolution processes specified above.
10.3 Equitable Relief. It is expressly agreed that any material breach of this Agreement involving confidential business information, personal information or Client Data, or the Intellectual Property rights of a Party hereto will cause irreparable harm to the other Party and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, the Parties shall be entitled to seek injunctive relief (without the necessity of posting any bond or surety) against the breaching Party in the event of any such threatened or actual violation.
11.1 Termination for Cause. Either Party may terminate this Agreement immediately for cause, in its own discretion, if (i) the other Party materially breaches this agreement including any failure to perform any of its covenants, obligations or responsibilities under this Agreement (including the failure of Partner to make any payments when due hereunder), which failure remains uncured for thirty (30) days after notice thereof from the other Party, or (ii) all or substantially all of the asserts of the other Party are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other party is liquidated.
11.2 Effect of Termination.
(a) Effect on Company. Upon termination of this Agreement by Partner, the Partner’s obligations to market, promote, advertise and/or license the Services shall cease.
(b) Effect on Partner. In addition to the any effect of Section 11.3, upon termination of this Agreement by the Company, Partner shall (i) provide all information required for the Company to continue providing the Services to all then-existing Clients of Partner and such Clients Authorized Users, (ii) provide whatever assistance to the Company that is required to ensure uninterrupted access and use of the Services by all Clients and Authorized Users existing at the time of termination, (iii) cease accessing, using, marketing, promoting, and advertising the Services, and (iv) cease representation as a reselling partner of the Company to all Clients and Authorized Users existing at the time of termination and all potential clients relating to provision of the Services.
11.3 Non-Compete in Event of Partner Breach. In the event of a Partner breach of this Agreement and termination of this Agreement by the Company, Partner hereby agrees to not, and shall not, solicit, market, provide, promote, license or distribute any web-based services that compete with the Services to Clients existing at the time of termination for two (2) years immediately following the date of termination of this Agreement.
11.4 Breach by Client or Authorized User. In the event either Party reasonably believes in good faith that any Client, or any Authorized User of any Client, has violated any provision of the applicable GSA, such Party shall (i) notify the other Party and either Party may immediately suspend such Client’s or Authorized User’s access to and use of the Services upon written notice to such Client or Authorized User of such violation that includes an explanation of the grounds for such suspension, and (ii) if such Client or Authorized User opposes the suspension in writing, the Parties will work together to determine if such suspension should be lifted and, if either Party concludes that such suspension should be made permanent, then such suspension shall be permanent.
12.1 Feedback. The Parties agree that any feedback or suggestions provided to the other Party, if any, given hereunder is voluntary. Each Party is free to use, implement, disclose, reproduce, modify, license or otherwise distribute such feedback and suggestions relating to its own Services and services, without any obligations or restrictions of any kind, including those relating to intellectual property rights.
12.2 No Publicity. Unless otherwise expressly provided for in the Agreement, except for announcements intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements, neither Party shall use the other Party’s name or refer to the other Party directly or indirectly in any media release, public announcement or public disclosure relating to the Agreement, including in any promotional or marketing materials, web sites, customer lists, referral lists or business presentations, without the prior written consent of the other Party.
12.3 Independent Contractors. The Parties are independent contractors. Regardless of the title “Partner” assigned to the party that is engaged to resell the Services of the Company under this Agreement, this Agreement does not actually create a legal partnership between the Company and the Partner; nor does this Agreement create or establish a franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Partner nor the Company are authorized or empowered to, and each Party covenants that it will not create any, contract or obligation, either express or implied, on behalf of the other Party.
12.4 Binding on the Parties. This Agreement shall be binding upon and inure solely to the benefit of each Party and nothing in this Agreement, express or implied, is intended to confer upon any third party any rights or remedies of any nature whatsoever under or by reason of this Agreement, except as otherwise expressly provided herein.
12.5 Force Majeure. If the performance by either Party is prevented, delayed or otherwise interfered with due to any act or condition that is beyond the reasonable control of, and not caused by the fault or negligence of such Party, such Party shall be wholly excused from such performance to the extent of, and during the period of, such prevention, delay or interference; provided that, such Party shall provide notice to the other Party of the causes for such lack of performance and shall resume performance as soon as reasonably practicable.
12.6 Effective Notice. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by confirmed facsimile or email (with the original subsequently delivered by other means permitted by this Section, although the Effective Date of such notice shall be the date of such facsimile or email transmission provided the original is subsequently delivered as provided herein), each to the addresses specified on the first page of this Agreement or to such other address as the parties shall designate in writing from time to time.
12.7 No Piecemeal Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
12.8 Assignment. The Company may freely assign this Agreement, or any applicable GSA, without consent. Partner may assign this Agreement, any applicable GSA or its obligations hereunder, only with the express consent of the Company. Notwithstanding the foregoing, no consent is required for assignments by Partner to any successors-in-interest to all or substantially all of the business or assets of such Partner, whether by merger, reorganization, divestiture, asset sale or otherwise, or to any Affiliates of Partner. This Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties.
12.9 Governing Law; Jurisdiction; Venue. This Agreement and all its part are governed by the laws of the State of Texas, without reference to its principles of conflicts of laws. Each Party hereby expressly consents to the personal jurisdiction of either the Texas state courts sitting in Harris County or the United States District Court for the Southern District of Texas, Houston Division. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
12.10 Merger; Amendments. This Agreement, together with any exhibits and other attachments hereto, is the entire and exclusive set of terms and conditions for transactions contemplated by the Agreement; (i) supersedes term sheets, bids, quotes and proposals, and conflicting terms of invoices or other documents issued under it, and (ii) may only be modified or amended by a writing signed by both parties. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. In the event there are conflicting terms in the body of this Agreement and the Exhibits, the terms in the body of this Agreement shall control.
12.11 Severability. In the event that any provision of the Agreement shall be determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further, and the validity and enforceability of any of the other provisions of the Agreement shall not be affected.
12.12 Notices. Notice will be sent to the contact address set forth in Exhibit A, and will be deemed delivered as of the date of actual receipt. We may give electronic notices by general notice via the Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
12.13 Construction. The terms, the appendices, exhibits, attachments and schedules, shall be construed consistently to the extent practicable, to give effect to the entire Agreement. The Data Security, Privacy, Data Retention and e-Discovery policy that is posted on the Company web site at https://www.goco.io/legal-stuff/privacy-policy/ is hereby incorporated by reference herein and made part hereof. To the extent that any conflict may appear between the terms in the body of this Agreement and any GSA, the terms in the body of this Agreement shall supersede. Notwithstanding anything to the contrary, this Agreement excludes any and all references to any additional terms or conditions that are not provided in writing and attached as an exhibit to this Agreement at the time it was executed by the Parties. Words such as “herein”, “hereinafter”, “hereof” and “hereunder” refer to the Agreement as a whole and not merely to a section or paragraph in which such words appear. The word “including” shall be deemed to mean “including, without limitation.” The singular shall include the plural, unless the context otherwise requires.
12.14 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or portable document format (pdf)) for the convenience of the Parties, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. No signature page to this Agreement evidencing a Party’s execution hereof shall be deemed to be delivered by such Party to any other Party until such delivering Party has received signature pages from all Parties signatory to this Agreement. No Party to this Agreement or any other document to be delivered in connection with the transactions contemplated hereby will raise the use of a facsimile, portable document format or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile, portable document format or email as a defense to the formation or enforceability of a contract, and each such Party forever waives any such defense.