Channel Partner Agreement
This Channel Partner Program Agreement (“Agreement”) together with all attached Exhibits hereto, is made by and between Valimail Inc., a Delaware corporation (“Valimail” or “Company”) located at 1942 Broadway St. Ste. 314C, Boulder, CO 80302, and the party reselling, accessing or using the Subscription Services (“Channel Partner”) effective as of the latest date by which this Agreement is fully executed (the “Effective Date”), each a “Party” and together, the “Parties”.
WHEREAS, the Parties desire to enter into an agreement to market, demonstrate, distribute, refer and/or resell access to the Subscription Services (as defined below) more particularly described as set forth in the Exhibit(s) attached hereto, or otherwise made a part of this Agreement (“Exhibit”), subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.1“Company Marks” means the Company’s trademarks, trade names, and service marks, as updated from time to time.
1.2 “Channel Partner Products” means, to the extent applicable, any products that Channel Partner sells in conjunction with the Subscription Services.
1.3 “Customer” means prospects or actual end user customers who would receive benefit or access to the Subscription Services pursuant to the terms of this Agreement and in compliance with the End User Agreement (as defined below).
1.4 “Documentation” means the user guides, manuals, on-line help, software release notes, instructions, performance descriptions, design documents, test materials, operation guides, training materials and other materials provided by Company in written or electronic format referring to or relating to the use of the Subscription Services.
1.5 “End User Agreement” means Company’s service terms as set forth in https://www.valimail.com/channel-tos/, or a separate agreement to be entered into by and between Company and a Customer for the access and use of the Subscription Services.
1.6 “Fees” are described in Exhibit.
1.7 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.8 “MSP” shall mean Channel Partner that purchases and accesses Subscription Services to act as a managed services provider for and on behalf of Customer.
1.9 “Subscription Services” means the subscription web-based offering Company provides to its customers in the ordinary course of business.
1.10 “Term” means the term of this Agreement as set forth in Section 6.1.
1.11 “Territory” means Worldwide, unless otherwise specified in the Transaction Document.
2. APPOINTMENT AND LICENSE.
2.1 Appointment. Subject to compliance with the terms and conditions of this Agreement, Company hereby grants Channel Partner, and Channel Partner hereby accepts, for the Term, a non-exclusive, non-transferrable, non-sublicensable, and non-delegable appointment to market, demonstrate, distribute and/or resell access to the Subscription Services to Customers in the Territory. Channel Partner shall use commercially reasonable efforts to promote the distribution of the Subscription Services. Channel Partner shall not offer or sell access to the Subscription Services to Customers outside of the Territory, or to any of Company’s customers or prospective customers, either directly or through in-Territory divisions of larger organizations, provided that as mutually agreed between the parties on a deal-specific basis, Company and Channel Partner may cooperate to sell to end customers outside of the Territory.
2.2 Company Activities. Nothing in this Agreement shall be construed as limiting Company’s marketing or distribution activities or its appointment of other channel partners, resellers or agents of any kind. If Channel Partner encounters any perceived or real channel conflict, Channel Partner shall immediately contact Company’s head of channel sales to resolve such conflict. Company will work with Channel Partner to resolve any channel conflicts; but shall have sole discretion and authority to resolve any such channel conflicts. Furthermore, Company reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Subscription Services it offers, or to discontinue support of publication, distribution, sale or licensing of any or all of the Subscription Services at any time without liability of any kind.
3. ORDERING; FEES AND PAYMENT
3.1 Ordering Requirements. Prior to Company accepting a purchase order or other ordering document (“Transaction Document”), and/or granting any access to the Subscription Services, the criteria set forth in Exhibit shall be met. To the extent applicable, all orders must include the identity of the Customer, the Subscription Service(s) to be purchased, the total Fees due according to the then-current prices charged by Company, and the price charged by Channel Partner to the Customer for each Subscription Service and in the aggregate.
3.2 Subscription Services Payment. Unless otherwise stated on the Transaction Document, Fees for Subscription Services are billed annually in advance in USD, due within 30 days from the invoice date, and are non-refundable and the subscription is non-cancellable. Channel Partner bear all risk of non-payment by Customers. All late payments shall bear interest at 1.5% per month or the maximum allowed by applicable law until paid in full. Except as otherwise mutually agreed in writing, Channel Partner shall be responsible for all costs associated with its performance of this Agreement.
3.3 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Channel Partner will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income. If any withholding taxes are imposed on any payment(s) by Channel Partner to Company hereunder, Channel Partner shall increase such payment(s) so that the net amount received by Company, after withholding, equals the amount of the payment otherwise due hereunder. Upon Company’s request, Channel Partner will provide Company with a valid resale certificate in conjunction with any transaction and coincidently with the transmission of the Transaction Document. Channel Partner will indemnify and hold Company harmless from any obligation to pay any governmental entity any employer statutory taxes, withholding taxes, social security taxes or other taxes, levies or duties in connection with Channel Partner’s performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefro
3.4 Fee. Details regarding payment of commission fees and/or revenue share, if any, to Channel Partner for Channel Partner referral programs and/or resale programs shall be set forth in the Exhibit.
3.5 Records; Audit. For the Term of this Agreement and a period of five (5) years thereafter, Channel Partner will maintain complete and accurate books and records regarding the use and resale of the Subscription Services to Customers. During such period, Company has the right to inspect and audit such books and records for the purpose of confirming compliance with the terms of this Agreement, including but not limited to payment obligations. Any such inspection and audit will be conducted during regular business hours upon at least thirty (30) days’ notice and in a manner that minimizes any interference with Channel Partner’s business. Channel Partner will promptly remit the amount of any underpayment discovered in the course of an audit, and in the event of an underpayment of fees to Company by ten percent (10%) or more for the period under audit, Channel Partner will bear the costs of such audit.
4. RESPONSIBILITIES; COOPERATION.
4.1 Registration. Unless Channel Partner is an MSP, Channel Partner shall register all Customers in the Channel Partner Portal (defined below) and Company shall have the option at its sole discretion to accept the Customer in the Channel Partner Portal in accordance with (i) the registration and (ii) acceptance process set out therein (“Registration”). Company’s acceptance of a Customer opportunity shall be at the sole discretion of the Company. Whether to accept a Customer opportunity, Company shall take into consideration whether the Customer opportunity has been registered in the early stage of the sales cycle (i.e., when the Customer has been contacted and qualified). Following Registration, Customer shall be eligible to receive the pricing discounts in accordance with the terms set out in Exhibit A hereto, for a three (3) month period (“Registration Period”) The Registration Period may continue beyond the initial three (3) months provided the Channel Partner is actively working an active opportunity and sales process, to be determined in the sole discretion of Company. “Company Portal” shall mean the online portal maintained by Company for the purpose of registering Customers.
4.2 Cooperation and Assistance. As a condition to Company’s obligations hereunder, Channel Partner will at all times: (i) provide Company with good faith cooperation and access to such information as may be reasonably required by Company in order to fulfill Company’s obligations hereunder and in the End User Agreement; (b) provide access to Channel Partner personnel as may be reasonably requested by Company from time to time; and (c) carry out in a timely manner all other Channel Partner responsibilities set forth in this Agreement.
4.3 Staffing; Third Parties. Channel Partner will maintain adequate numbers of sales staff sufficiently trained in the marketing and use of the Subscription Services to provide competent sales efforts and pre-sales support to Customers. Channel Partner will ensure that its sales staff participate in any training that the Company makes available to Channel Partner not less frequently than required by Company. Channel Partner shall not utilize or employ any affiliate, third-party subcontractor, consultant, agent, or other intermediary in connection with the performance of this Agreement, without prior review and consent by Company.
4.4 Marketing and Publicity. Channel Partner will use commercially reasonable efforts to advertise and promote the Subscription Services to Channel Partner will include in all marketing, advertising and promotional materials relating to the Subscription Services and the applicable copyright and trademark notices of Company and its licensors as they appear on or in any materials provided by Company, if applicable. Company may provide reasonable marketing support to assist Channel Partner’s marketing efforts. The parties will cooperate reasonably to support public relations efforts pertaining to the Subscription Services.
4.5 Prohibited Parties. Company reserves the right, in its sole discretion, to restrict or prohibit any party from using the Subscription Services. Channel Partner is prohibited from permitting access to the Subscription Services by any party that Channel Partner knows, or should reasonably suspect to be, a competitor (or an agent of a competitor) of Company, or any party who intends to use the Subscription Services for any purpose other than their ordinary commercial purpose (such as parties who might reverse engineer, decompile or copy the Subscription Services, or exploit the results of any such activities). If Channel Partner has any concern that any transaction might violate the foregoing restriction, Channel Partner should obtain advance written approval of such transaction from Company.
4.6 Representations. Channel Partner shall (a) conduct business in a manner that reflects favorably at all times on the Services and the good name, good will, and reputation of Company; (b) promote proper use of the Services; (c) avoid false, deceptive, misleading, or unethical practices that are or might be detrimental to Company, the Services or the public; (d) not make any representation, warranty, or guarantee to Customers or to other third parties with respect to the specifications, features, warranties or capabilities of the Services that are inconsistent with or are in addition to those published by Company (and if Channel Partner does make any such representation, warranty, or guarantee in breach of this Agreement, then Channel Partner shall be solely responsible to the Customers or third parties for any such representation, warranty, or guarantee.
4.7 Enforcement. Channel Partner will notify Company if it becomes aware or reasonably suspects that a Customers is not complying with the terms and conditions of the End User Agreement, and will cooperate with Company’s enforcement efforts in the event that Company reasonably determines that such Customer has violated the terms and conditions of the End User Agreement.
To the extent stated in the Exhibit, and except for MSPs, Channel Partner shall provide Customers with first-tier support including, but not limited to, resolution of pre-sales questions, setup, onboarding, payment, integration, and post-sale inquiries, basic technical support, problem screening, and basic analysis. Channel Partner agrees to use the Company’s support infrastructure, as then currently specified, in satisfying its obligations to provide support to Customers. Company is under no obligation to provide customer support directly to Resale Customers. MSPs will be responsible for onboarding Customers to enable their use of the Subscription Services and Company will support the MSP as onboarding backstop. MSPs will be the sole point of contact with the Customer for support questions.
6. TERM; TERMINATION; WIND DOWN.
6.1 Term. This Agreement will commence on the Effective Date and will continue for the period of one (1) year thereafter, unless terminated earlier as provided in this Agreement. This Agreement may be renewed based upon the mutual written agreement of the parties. Company may terminate this Agreement for convenience and without penalty of any kind upon fifteen (15) days’ prior written notice to Channel Partner.
6.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.
6.3 Termination for Insolvency. If Channel Partner becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then Company may terminate this Agreement upon thirty (30) days’ written notice.
6.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Channel Partner’s right to offer new subscriptions to the Subscription Services will immediately terminate; provided, however, that unless Company has terminated this Agreement for Channel Partner’s breach, for sixty (60) days after the effective date of termination, Channel Partner may submit to Company orders generated in response to, and accompanied by a true and correct copy of, written pricing proposal(s) provided by Channel Partner to the relevant Customer(s) prior to the effective date of termination; provided in each case that such orders specify an effective delivery date not more than sixty (60) days after the effective date of termination. Channel Partner will otherwise immediately cease all use, promotion, marketing and/or re-sale of the Subscription Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Immediately after any termination or expiration of this Agreement, Channel Partner will cease use of Company Marks. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST REVENUE ON ACCOUNT OF TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. Upon termination, for any reason, Channel Partner will provide Company a list of all Customers that have a then-active subscription to the Subscription Services, indicating the remaining subscription period for all such Customers (the “Post-Termination Customers”). Except in the case of Company’s termination of this Agreement under this Section, Channel Partner will continue to provide support to those Post-Termination Customers who have an active subscription to the Subscription Services for a period of up to six (6) months following the effective date of termination of this Agreement (the “Wind-Up Period”). For Post-Termination Customers with a subscription period extending longer than the Wind-Up Period, and for all Post-Termination Customers in the event of Company’s termination for cause of this Agreement, Channel Partner will work with Company to provide such Post-Termination Customers with an option to purchase the Subscription Services and accompanying support directly from Company. The rights and obligations of Company and Customer contained in Section 3, Section 2, Section 6.4, and Sections 7 through 12 will survive any expiration or termination of this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Mutual Warranties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
7.2 Customer Warranties. Channel Partner expressly acknowledges that it receives under this Agreement only the ability to market and/or resell subscriptions to the Subscription Services and does itself not receive any right or license in or to the Subscription Services hereunder except the limited demonstration use right set forth in this Agreement. Any warranties provided by Company with respect to the Subscription Services are provided directly to, and solely for the benefit of, Customers. Channel Partner and Customer assume sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use. Company will have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Company by Channel Partner and/or Customer in connection with the Subscription Services or any actions taken by Company at Channel Partner and/or Customer’s direction.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential or which should reasonably understood to be confidential given the nature of the information and the circumstances of disclosure. The terms and conditions of this Agreement will be deemed the Confidential Information of both parties.
8.2 Exclusions. Confidential Information will not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
8.3 Use and Nondisclosure. Neither party will make the other’s Confidential Information available to any third party other than such party’s corporate affiliates and its and their respective advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers in each case as any of the same have a reasonable need to know such information. Any such third parties will, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. Neither party will use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Specifically, with respect to information concerning Customers, each party may utilize such information as it sees fit in connection with its relationship and communications with the relevant Customer(s), subject only to any obligations each party may independently have to such Customer(s). Each party will take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
9. OWNERSHIP; TRADEMARKS.
9.1 Ownership. The Subscription Services (including without limitation the Documentation, media and software contained therein and all translations, updates, modifications, improvements, or derivative works thereof), and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Company or its licensors. No transfer is made to Channel Partner of title or ownership of any Intellectual Property Rights in the Subscription Services. Channel Partner’s rights are limited to those expressly granted by this Agreement, and Company reserves all other rights. Channel Partner shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by Company on or in the Subscription Services, any documentation or any marketing materials.
9.2 Assistance with Infringement Actions. Channel Partner shall promptly notify Company in writing upon its discovery of any unauthorized use or infringement of the Subscription Services or of Company’s Intellectual Property Rights with respect thereto. Company shall have the sole and exclusive right to bring an infringement action or proceeding or to take other measures to enforce its Intellectual Property Rights against a third party, and, in the event that Company brings such an action or proceeding, or takes other measures in connection with such unauthorized user or infringement, Channel Partner shall cooperate and provide full information and assistance to Company and its counsel in connection with any such action, proceeding or other measures, provided that all expenses of such action, proceeding or other measures shall be borne by Company and all damages which may be awarded or agreed upon in settlement of such action or measures shall accrue only to Company.
9.3 Trademarks. Any and all trademarks and trade names that Company uses in connection with the rights granted hereunder are and remain the exclusive property of Company, and all use by Channel Partner of those trademarks and trade names shall inure solely to the benefit of, and be on behalf of, Company. This Agreement gives Channel Partner no right therein except a limited right to reproduce Company’s trademarks and trade names during the term of this Agreement as necessary for the sole purpose of allowing Channel Partner to promote and market the Subscription Services pursuant to the terms of this Agreement. Channel Partner agrees to abide by all usage guidelines as may be provided by Company from time to time. Channel Partner acknowledges Company’s ownership of and exclusive right to use the Company trademarks and trade names and agrees not to do anything inconsistent with, contesting or impairing such rights, including, but not limited to filing any registrations or other form of application for government recognition of any Company trademark or trade name. If Channel Partner does file such a registration or application in contravention of the above, it hereby assigns to Company all right, title and interest in such registration or application, and agrees that it will, without charge to Company, perform any tasks and execute any documents necessary to effect such assignment.
9.4 Aggregate Data. For certain Services, Company may collect and analyze anonymous, aggregate statistical information and/or analyses (“Aggregate Data”). Aggregate Data is derived from data generated in connection with the use of the Services; provided, however that Company (i) deidentifies such data in an anonymous form, pursuant to applicable standards, and (ii) does not identify the source of such data. Valimail owns and shall continue to own all right, title and interest in and to Aggregate Data.
10.1 Indemnification by Channel Partner. Channel Partner shall defend, indemnify and hold harmless any claim brought by a third party against Company, its officers, directors, employees, owners, shareholders, legal representatives, agents, successors and assigns; and will pay costs, damages and defense costs (including reasonable attorneys’ fees) attributable to such claim to the extent based upon or arising out of (a) Channel Partner’s breach of this Agreement, (b) negligence by Channel Partner, its employees, agents or representatives, (c) violation of applicable law; or (d) the infringement or alleged infringement of such third party’s Intellectual Property Rights from the use of Channel Partner Products, if applicable.
10.2 Indemnification by Company. Company will defend, indemnify and hold harmless any claim brought against Channel Partner by a third party to the extent that based upon a claim that the Subscription Services misappropriate such third party’s trade secret or infringes such third party’s copyright or U.S. patent or trademark rights, and will pay costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Channel Partner or payable according to a settlement made by Company. In the event that Company’s right to provide the Subscription Services is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, Company may terminate this Agreement without liability to Channel Partner. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. Company will have no liability under this Agreement, to the extent that any third-party claims described herein are (a) presented to Company more than two (2) years after termination or expiration of this Agreement. The indemnification obligations hereunder will not apply to any claim to the extent it arises from: (i) the use of the Subscription Services not in accordance to this Agreement or End User Agreement; (ii) any matter for which Channel Partner or Customer is obligated to indemnify Company; (iii) the Subscription Services being modified by Channel Partner, Customer or a third party; (iv) the use, operation or combination of the Subscription Services with programs, data, equipment or materials not provided by Company; or (iv) continuation of the allegedly infringing activity after being notified of the c
10.3 Procedure. Each party’s obligations under this Section are contingent upon: (a) the party seeking indemnification providing the indemnifying party with prompt written notice of such claim; (b) the indemnified party providing reasonable cooperation to the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim; and (c) the indemnifying party having sole authority to defend or settle such claim, provided that settlement shall be subject to the prior written consent of the indemnified party, not to be unreasonably withheld or delayed.
11. LIMITATION OF LIABILITY.
11.1 Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF CONFIDENTIALITY, CHANNEL PARTNER’S MISUSE OF COMPANY INTELLECTUAL PROPERTY RIGHTS, OR DAMAGES PAYABLE TO THIRD PARTIES UNDER SECTION 10.1, OR A PARTY’S WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
11.2 Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 7, CHANNEL PARTNER’S MISUSE OF COMPANY INTELLECTUAL PROPERTY RIGHTS, OR DAMAGES PAYABLE TO THIRD PARTIES UNDER SECTION 10.1, OR A PARTY’S WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CHANNEL PARTNER’S OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE FEES PAID OR PAYABLE BY CHANNEL PARTNER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
12. COMPLIANCE WITH LAWS
12.1 Each party shall comply with all applicable laws and regulations, including but not limited to the Foreign Corrupt Practices Act, UK Bribery Act, all US and international antibribery laws and all US and foreign export, trade and sanctions programs laws. Neither Channel Partner nor any of its employees, contractors or agents may make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act of decision of an official of any foreign government or the U.S. government (including a decision not to act) or inducing such a person to use his/her influence to affect any such governmental act or decision in order to assist in obtaining, retaining or directing any business via or in relation to this Agreement. A foreign governmental official shall include any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or of any public international organization, such as the United Nations or the World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business, any political party or party official, any political candidate or any person or entity who Channel Partner knows or has reason to believe will give part of any part of any payment to any of the aforementioned categories of people for such purpose. Valimail reserves the right to require annual certification of prior and future compliance with this Section. Without limiting any other right reserved for Valimail under this Agreement, in the event Channel Partner or any end user breaches any of the foregoing representations or Valimail has a good faith belief of such a breach, warranties or covenants, Valimail may immediately terminate this Agreement upon notice to Channel Partner.
13.1 English Language; Headings. The English version of this Agreement shall control, regardless of whether a translation into any other language is made. The parties have required that this Agreement and all documents or notices resulting therefrom or ancillary thereto be drawn up in the English language.
13.2 No Exclusivity. Nothing in this Agreement grants exclusive rights to Channel Partner to act as referrer or reseller on behalf of Company. Company may appoint, in its own discretion, other partners, distributors, resellers, and/or representatives. Nothing in this Agreement shall prevent or limit Company from marketing and selling the Subscription Services or any other product or service, in whole or in part, directly or indirectly, to any Customer or from appointing representatives, resellers, distributors and other marketing agents, without liability to Channel Partner.
13.3 Feedback. Channel Partner grants Company a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable, license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Channel Partner relating to the Subscription Services.
13.4 Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s prior written consent; provided, however, that in the event of a Change of Control (as defined below), either party may, upon written notice but without the other’s consent, assign this Agreement to its successor in interest pursuant to such Change of Control. Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of the business of such party pertaining to this Agreement, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
13.5 Status of Parties. Neither party has any power or authority to assume or create any obligation or responsibility on behalf of the other party. This Agreement may not be construed to create or imply any partnership, agency or joint venture between the parties. There are no third-party beneficiaries to this Agreement.
13.6 Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control, if the affected party makes reasonable efforts to perform. This provision does not relieve either party of its obligation to make payments then owing.
13.7 Export Compliance. Channel Partner agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Subscription Services, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by the such export laws and regulations.
13.8 Severability; Waiver. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
13.9 Notices. All notices permitted or required under this Agreement shall be in writing, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid to the address identified on the preamble of this Agreement or any other address notified in writing.
13.10 Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Northern District of California in the City and County of San Francisco, and the parties irrevocably consent to personal jurisdiction and venue therein. In any action or proceeding arising under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. The parties acknowledge and agree that any unauthorized disclosure or use of a party’s confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies.
13.11 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
13.12 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provisions hereof be enforced by, any other person, including without limitation Customers.
13.13 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any printed or digital terms or conditions on any purchase order, click-through terms or agreements, risk form or questionnaire or similar documentation issued by Channel Partner or Customer are null and void and will not be binding upon Company unless specifically agreed to, in writing, by the parties pursuant to this Agreement with explicit reference to this Section. Company reserves the right to change or supplement the terms of this Agreement from time to time at its sole discretion. Company will exercise commercially reasonable business efforts to provide notice to Channel Partner of any material changes to this Agreement. There are not and shall not be any oral statements, representations, warranties, undertakings or agreements between the parties.
Exibit – MSP Managed
Services Fees/ Pricing
This Exhibit forms part of the Channel Partner Agreement between the Valimail Inc. (“Valimail”) and Channel Partner (“Agreement”). Capitalized terms not otherwise defined in this Exhibit shall have the meanings given to such terms in the Agreement.
MSP is in the business of providing managed services, or Channel Partner Products, in conjunction with the Subscription Services (the “MSP Services”). Company hereby appoints MSP as an authorized managed services provider to enable MSP to provide to its customers certain services or bundle with Channel Partner Products, subject to and in accordance with the terms and conditions of the Agreement and this Exhibit.
- Valimail Monitor (to be replaced by Authenticate freemium model at Company’s discretion)
- Valimail Enforce (to be replaced by Authenticate at Company’s discretion)
- Valimail Authenticate (upon availability)
Right to Use: Subject to MSP’s compliance with the terms and conditions of this Agreement and this Exhibit, including payment of Fees, Valimail grants to MSP a non-exclusive, non-transferable, non-delegable, limited right to use the Subscription Services, solely for the purpose of (a) provisioning the Subscription Services on a stand-alone basis as MSP Services or bundling the Subscription Services with the MSP’s existing Channel Partner Products, (b) demonstrating and marketing the Subscription Services to potential Customers, (including through the usage of trials); or (c) providing training and maintenance and support services to Customers. Notwithstanding the aforementioned, Valimail may, at its discretion, offer Channel Partner a fee-free license (“NFR”) to the Subscription Services for its own internal use for its own domain. Channel Partner agrees to not use this license for its end users or Customers or to provide access to the Subscription Services to end users or Customer, instead of licensing the Subscription Services to them. Valimail reserves its right to revoke the NFR access at any time and for any reason or no reason.
Restrictions: MSP will not attempt to interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). MSP will not: (a) reproduce, copy, modify or distribute any portion of the Subscription Services; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; (c) reverse engineer and/or otherwise attempt to gain access to Company’s source code; or (d) use the Subscription Services except for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. MSP’s access to the Subscription Services is limited to the access expressly granted herein. Company reserves all other right, title and interest in and to the Subscription Services.
|MSP Aggregate Seats||Buy out for Tier/ Monthly Price *||Per Seat Pricing / per month|
|5001 or greater||TBD||TBD|
Valimail Monitor – Free of charge
“MSP Aggregate Seats” means the total number of users in either G Suite or O365 or pertinent sending service for each Customer, but not counting distribution lists or shared mailboxes. For example, if an MSP has 15 customers at 100 seats each, they would have an aggregate of 1,500 seats under its management. So, an MSP with 1,500 would have to purchase the tier for up to 2000.
Maximum number of emailing domains, per Customer: 5
Maximum Monthly volume, per Customer: Up to 500,000 emails
For Customers outside of the above parameters, Company will provide a custom quote based on those parameters.
Invoice Calculation and Timing
Company will invoice MSP in accordance to applicable Transaction Document in accordance to the following: On the 25th of each month (or the subsequent Monday if the 25th is a weekend or holiday), Company will look at the total number of Users in the Valimail system across all Customers of the MSP as of that day. An invoice will be created and sent to MSP for that month that will include:
- The total number of users by customer;
- List price per user minus the discount rate;
- Total amount owed for the current month.
Onboarding and Support. MSP shall be the point of contact and responsible for onboarding each Customer, and Company will support MSP, per the below RACI chart.
Customer Agreements. MSP will be solely liable and responsible for providing its MSP Services to its Customers. COMPANY SHALL NOT BE LIABLE TO ANY CUSTOMER WITH RESPECT TO MSP’S USE OF THE SUBSCRIPTION SERVICES WHETHER SUCH USE IS ON SUCH CUSTOMER’S BEHALF OR OTHERWISE. Without limiting the foregoing, MSP may not distribute the Subscription Services to any Customer unless MSP has entered into a written agreement with such Customer that contains, at a minimum, terms and conditions substantially similar to the following: (i) MSP or its licensors retain all of their Intellectual Property Rights in the MSP Services, and no title to such Intellectual Property Rights are transferred to the Customer; (ii) the Customer agrees not to reverse assemble, reverse engineer, reverse compile, or otherwise translate or modify any portion of the Subscription Services; and (iii) that otherwise contains terms that are equally protective of Valimail’s rights in the Subscription Services as those contained in this Agreement. MSP will use its best efforts to enforce the terms of each such Customer agreement.