Digital.ai Master Partner Agreement
PARTNER NOTICE: BY ACCEPTING THIS MASTER PARTNER AGREEMENT (THIS “AGREEMENT”), YOU (“PARTNER”) AS PARTNER ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO THE CONDITIONS AND PROVISIONS HEREIN AND THAT YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS THE FULL AND EXCLUSIVE EXPRESSION OF THE AGREEMENT BETWEEN YOU AND DIGITAL.AI SOFTWARE, INC. (“DIGITAL.AI”) AND THAT IT TAKES PRECEDENCE OVER ALL PREVIOUS PROPOSALS OR VERBAL OR WRITTEN AGREEMENTS AND OTHER COMMUNICATIONS REGARDING THE SUBJECT OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU WILL NOT REPRESENT YOURSELF AS A PARTNER OF DIGITAL.AI.
Whereas, Partner wishes either to resell Subscriptions (as defined hereafter) to End Customers (as defined hereafter) or refer to Digital.ai potential customers for Digital.ai’s Software (as defined hereafter) under the terms of this Agreement. To the extent Partner will be engaged in the appointment of any third party for the purposes of reselling, maintaining, supporting, and/or servicing Digital.ai’s Software (the Partner, in this case a “Distributor”), the terms and conditions set forth in the Distributor Addendum which if applicable is attached hereto and incorporated herein by reference as Exhibit A.
Therefore, in consideration of the foregoing, their mutual promises set forth below and other valuable consideration, the parties agree as follows:
PART (A) RESELLER CONDITIONS
- Partner Appointment1.1 Digital.ai hereby appoints Partner as non-exclusive reseller of license subscriptions for Digital.ai’s commercially available software products as specified on Digital.ai’s website (the “Software”) in combination with support and maintenance services (together, “Subscription”) to (potential) end user customers of Digital.ai’s Subscriptions (each an “End Customer”). Partner shall register each potential End Customer via Digital.ai’s partner portal https://digital.ai/.1.2 Partner is appointed by Digital.ai under this Agreement in the territory set forth in the applicable Partner Commercial Terms Addendum agreed upon by the parties (the “Territory”). Unless agreed otherwise in writing by the parties, Partner is not authorized and will not engage in any activities under this Agreement with any End Customer or potential End Customer that is not located in the Partner’s Territory. Without limiting Digital.ai’s other remedies at law or under this Agreement, Partner acknowledges that it will not be entitled (and may be required to repay) any commissions or other benefits received pursuant to this Agreement if Partner makes sales outside of the Territory. Partner will immediately forward to Digital.ai all extra-territorial inquiries that do not originate from Partner’s Territory. Digital.ai reserves the right to permit, exceptionally and at its sole discretion, an End Customer outside of the Territory to be covered by this Agreement. If Digital.ai permits an exception in accordance with this section, all terms and conditions of this Agreement will apply to any transactions covered by such exception.1.3 All offers, quotes, Demo Licenses (defined below) and orders to (potential) End Customers require the prior written approval of Digital.ai.1.4 Partner will resell Subscriptions in its own name and for its own risk and account.1.5 The right of the End Customer to use the Subscription is limited as set forth in Digital.ai’s Master Subscription Agreement (“End Customer T&Cs”) and may be updated by Digital.ai from time to time. At the request of Partner, Digital.ai will provide Partner with the then-current version of the End Customer T&Cs. Partner shall either (i) require that the End Customer to whom Partner sells a Subscription signs the End Customer T&Cs; or (ii) enter into a written agreement with such End Customer with terms no less protective of Digital.ai than the End Customer T&Cs. Partner may not make any representations or warranties which exceed the representations and warranties made by Digital.ai under the End Customer T&Cs.
1.6 Partner shall always properly attribute Digital.ai as the proprietary owner of the Software, its components, and its functionalities.
1.7 Partner may only use marketing materials and other information about Digital.ai, its products, and its services that have been made publicly available by Digital.ai or have been pre-approved by Digital.ai in writing. Digital.ai may, at its discretion, update its marketing materials and approved information, and Partner – after receiving notification from Digital.ai thereto – shall only use such updated version(s) going forward.
1.8 Partner will send or make available, in good faith and after reasonable consultation with Digital.ai, appropriate Partner personnel for training by Digital.ai in the operation and application of the Software if and when requested by Digital.ai at Partner’s own cost and expense; provided that such training may be provided virtually in the sole discretion of Digital.ai.
1.9 Digital.ai will provide training to End Customers upon request by Partner, provided that the terms and conditions regarding training will be agreed separately after consultation with Partner.
1.10 During the term of this Agreement and at no additional cost, Digital.ai hereby grants to Partner non-exclusive, non-transferable, revocable, and non-sublicensable license to use the Software only for the limited purposes described herein.
1.11 Digital.ai may separately provide End Customer-specific non-exclusive, non-transferable, revocable, and non-sublicensable licenses allowing Partner to install and use the Software at potential End Customers for the limited purpose of demonstrating the functions and functionalities of the Software (a “Demo License”), provided that the term of any such Demo License shall not exceed 90 days and shall be governed by the terms of this Agreement. Any Demo Licenses must be approved by Digital.ai in accordance with Section 1.2.
1.12 Partner may implement the Software at the End Customers to whom Partner has sold a Subscription. Partner will enter into separate terms and conditions directly with such End Customers at Partner’s own risk, cost, and expense.
1.13 Digital.ai retains all rights not expressly granted to Partner under this Agreement.
- Reseller License Commission 2.1 If Partner sells a Subscription to the End Customer, Partner may earn a percentage of the net order Subscription fee for the initial term of the Subscription for such End Customer (“Commission”), the exact percentage and applicable initial term to be determined and agreed upon in writing between parties in the applicable Partner Commercial Terms Addendum agreed upon between the parties. For subsequent years following the initial term (regardless if the initial term is for one year or multiple years), the Commission to be earned will be a percentage of the initial term’s Commission standard Partner percentage as stated in the Partner Commercial Terms Addendum, exclusive of any specials provided to the Partner, provided that Partner continues to provide satisfactory and effective First Line Support (as defined hereafter) to the End Customer, as determined by Digital.ai. In addition, such subsequent year’s Commission will only be earned if the End Customer has not cancelled or downgraded its licenses. If Partner contracts directly with Digital.ai to order a different Software than the Software initially sold to the End Customer by Partner, Partner shall not be due any Commission for such additional sale. For purposes of clarity, if an End Customer continues its Subscription for the Software initially sold to the End Customer by Partner beyond the initial term, and the End Customer also directly contracts with Digital.ai to purchase additional Software, Partner will be deemed to have earned Commission only in connection with the Subscription for the Software that Partner sold to the End Customer.2.2 Partner will invoice the End Customer for the applicable Subscription fee(s) up front for the license grant term and procure that the End Customer pays such fees. Partner shall remit payment to Digital.ai Net30 days from Digital.ai’s invoice to Partner, subject to deduction and withholding of the agreed Commission rate as defined in the “Commercial Terms” addendum. Digital.ai at its option, may assess finance fees of 1.5% per month or the highest rate allowed by applicable law for any late payments. Additionally, Digital.ai reserves the right to suspend or terminate End Customer or Partner’s access to the Software without liability, if Partner fails to cure any instance of non-payment within 15 days of receipt of notice from Digital.ai. Partner agrees to reimburse Digital.ai for any and all expenses Digital.ai may incur, including attorneys’ fees, collection fees, and costs of litigation/arbitration, in enforcing the terms of this Agreement, and the remedies in this Section are cumulative and in addition to all other rights and remedies available to Digital.ai under this Agreement, by operation of law or otherwise. Unless, otherwise agreed upon by Digital.ai in its sole discretion, Digital.ai does not permit Partner sales of Digital.ai products which are shorter than a one year’s term.2.3 Digital.ai, upon receipt of the Partner’s Purchase Order and acceptance of Digital.ai Terms and Conditions by the End Customer, shall invoice the Partner for the annual Subscription upfront.2.4 Digital.ai assumes no obligation for the payment of local or foreign taxes, other duties and excise taxes, now or hereafter applied on the sale, transportation, import, export, licensing or use of the Software, or any provision of services, including sales tax, value added tax, withholding tax or similar tax, including interest and penalties thereon, paid or payable at any time, exclusive of taxes based on Digital.ai’s net income. If Partner or Partner’s End Customer becomes liable, directly or indirectly, during the Term of this Agreement or at any time thereafter, to pay any taxes, duties or charges or any kind under the applicable law of any country in connection with this Agreement, Partner shall increase the amount of any payment on which such taxes, duties or charges are payable by or are withheld by Partner by a sum equal to the aggregate amount of such taxes, duties or charges, such that Digital.ai will receive the total of fees pursuant to the applicable Partner order form or Digital.ai issued invoice, and will not bear or be affected from any tax implications.2.5 Notwithstanding anything to the contrary contained herein, Partner shall not be due any Commission if such Commission was earned by violating applicable law, Digital.ai policy, or this Agreement.
- First Line Support and Deal Registration 3.1 Resale Partners may agree to provide first line support services (“First Line Support”) in respect of End Customers to whom Partner has sold a Subscription for the term of such Subscription. Resale Partner’s First Line Support services shall be at least as comprehensive as the applicable support tier set forth in Attachment I: Support Terms of Digital.ai’s Master Subscription Agreement. For the avoidance of doubt, First Line Support shall also include, but not be limited to:(i) a direct response to users with respect to inquiries concerning the performance, functionality or operation of the supported programs;
(ii) a direct response to users with respect to problems or issues with the supported programs;
(iii) a diagnosis of problems or issues of the supported programs; and
(iv) a resolution of problems or issues of the supported programs.3.2 To the extent a resale Partner is providing First Line Support, such resale Partner will establish and maintain the organization and processes to provide First Line Support and share the First Line Support plan with Digital.ai prior to final execution of this Agreement and the associated Partner Commercial Terms Addendum.3.3 If, after reasonable commercial efforts, Partner is unable to diagnose or resolve problems or issues with respect to the Subscription at an End Customer, Partner may contact Digital.ai for second or third line support services with respect to such End Customer. Partner will use commercially reasonable efforts to provide Digital.ai with the access necessary to provide such support (e.g., access to server configuration information, product version, plugins and versions, installed patches and hotfixes, server or CLI log files, repository extracts, synthetic configuration files, custom plugins or scripts); however Partner shall not provide Digital.ai with passwords or access to sensitive data.3.4 For the avoidance of doubt, referral partners shall not be eligible to provide First Line Support.3.5 Partner may be entitled to additional commission amounts for provision of First Line Support to End Customers at the amounts agreed upon by the parties in an applicable Partner Commercial Terms Addendum.
3.6 Partner may also be entitled to additional commission amounts for reporting information related to various business opportunities, such as End Customer name and contact information, Software product type, and deal volume, etc. at the amounts agreed upon by the parties in the an applicable Partner Commercial Terms Addendum (the “Deal Registration“).
- Inspection; Audit Rights4.1 Partner must maintain detailed, complete, clear and accurate records relating to the resale of Digital.ai Software or Subscriptions and Partner’s compliance with the terms of this Agreement, including invoices, receipts, purchase orders, contracts and any other records as Digital.ai may reasonably request (“Reports”) during the term of this Agreement and for a minimum of 3 years after the termination or expiration of this Agreement (or for a longer period if required by applicable law).4.2 Upon request by Digital.ai or its designated agent, Partner must provide copies of the Reports to Digital.ai or its designated agent within 10 business days.4.3 Digital.ai or its designated agent may, upon 5 business days’ prior written notice, inspect any of Partner’s books, records and other documentation relating to performance of this Agreement. Digital.ai may perform only 1 inspection per 12-month period unless a previous inspection, in the sole opinion of Digital.ai, revealed a discrepancy. Any such inspection shall be performed at Digital.ai’s expense.PART (B) REFERRAL CONDITIONS
- Referral appointment5.1 During the term of this Agreement Partner may introduce to Digital.ai potential End Customers for the Software via Digital.ai’s partner portal https://digital.ai/ (each a “Submission”).5.2 Digital.ai may at its sole discretion approve or reject Submissions. If Digital.ai does not approve a Submission in writing within 5 business days after receipt, such Submission is considered rejected.5.3 A Submission that Digital.ai approves pursuant to Section 5.2 above is considered a “Qualified Prospect” for a limited period of 6 months following such approval, even if it exceeds the termination or expiration date of this Agreement.5.4 During the term of this Agreement and at no additional cost, Digital.ai hereby grants to Partner a non-exclusive, non-transferable, revocable, and non-sublicensable license to use the Software only for the limited purposes described herein.5.5 Digital.ai may separately provide End Customer-specific Demo Licenses, provided that the term of any such Demo License shall not exceed 90 days and shall be governed by the terms of this Agreement. Any Demo Licenses must be approved by Digital.ai in accordance with Section 1.2.
5.6 Partner may only use marketing materials and other information about Digital.ai, its products, and its services which have been made publicly available by Digital.ai or have been pre-approved by Digital.ai in writing. Digital.ai may at its discretion update its marketing materials and approved information, and Partner – after receiving notification from Digital.ai thereto – shall only use such updated version(s) going forward.
5.7 Partner shall always properly credit Digital.ai as the proprietary owner of the Software, its components, and its functionalities.
5.8 Partner may not discuss the details of Digital.ai’s pricing or licensing model with any third party.
5.9 Digital.ai retains all rights not expressly granted to Partner under this Agreement.
- Commission 6.1 Subject to Section 6.2 below, if the Qualified Prospect purchases Subscription, Partner is entitled to a percentage of the net order Subscription fee for the initial term of the Subscription paid by such End Customer (“Referral Commission”), the exact percentage and initial term to be determined and agreed upon in writing between parties as stated in the Partner Commercial Terms Addendum.6.2 A Referral Commission only becomes due and payable if and when Digital.ai has received the relevant fees from the Qualified Prospect. Digital.ai will notify Partner of receipt of such fees as soon as reasonably possible, after which Partner may invoice Digital.ai for the applicable Referral Commission. Partner is only entitled to receive a Referral Commission with respect to Qualified Prospects. Submissions or third parties that have lost their “Qualified Prospect” status are not eligible for Referral Commission or any other consideration. Digital.ai will pay Referral Commissions due and payable within 60 days of receiving Partner’s correct invoice.6.3 Notwithstanding anything to the contrary contained herein, Partner shall not be due any Referral Commission if such Referral Commission was earned by violating applicable law, Digital.ai policy, or this Agreement.PART (C) GENERAL APPLICABLE TERMS & CONDITIONS (APPLICABLE TO PARTS A AND B)
- Intellectual property7.1 Title, ownership rights and all intellectual property rights in and to the Software, including End Customer-specific configurations and customizations, and related documentation and marketing materials shall remain the sole and exclusive property of Digital.ai and its licensors.7.2 During the term of this Agreement, Partner may use Digital.ai’s name and logo for the limited purpose of promoting Digital.ai’s Software, and Digital.ai may use Partner’s logo similarly.7.3 All goodwill arising out of Partner’s use of Digital.ai’s intellectual property, name, and logos inures to the exclusive benefit of Digital.ai and its licensors.
- Confidentiality8.1 Each party warrants that all information received by the other party which is known or should be known to be confidential in nature, shall remain a secret and be kept confidential, unless a legal obligation mandates disclosure of that information. Information will in any event be considered confidential if it is designated by either party as such, and Partner acknowledges that Digital.ai’s Software contain valuable trade secrets and confidential information of Digital.ai.8.2 The party receiving confidential information may only use it for the specific purpose for which it has been provided. Notwithstanding the foregoing, either party may disclose the existence but not the content of this Agreement for marketing purposes.8.3 Partner will immediately notify Digital.ai if confidential information of Digital.ai is used or disclosed in breach of this Agreement. As monetary damages may not be sufficient relief if anyone violates or threaten to violate the terms of this section, Digital.ai is immediately entitled to enforce its rights by specific performance or injunction proceedings, in addition to any other rights or remedies it may have.8.4 Upon Digital.ai’s request and upon termination of this Agreement (unless agreed otherwise by the parties at the time), each party will return, destroy or delete permanently the other party’s confidential information.8.5 Notwithstanding the restrictions set out above, if Partner is required to disclose any of Digital.ai’s confidential information by law, such as in response to a subpoena or requirement of any court, arbitral, administrative, or legislative body, the Partner must:
(i) where reasonably possible and permitted, immediately provide written notice to Digital.ai of the required disclosure to give Digital.ai an opportunity to move for a protective order or otherwise prevent the disclosure;
(ii) disclose only the minimum amount of confidential information required to satisfy the legal obligation; and
(iii) assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the confidential information to be disclosed. - Warranty9.1 Digital.ai warrants that it may enter into this Agreement with Partner.9.2 EXCEPT FOR THE EXPRESS WARRANTIES IN THE END CUSTOMER T&CS, DIGITAL.AI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING OR RELATED TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Indemnity by Partner10.1 Partner will indemnify and hold Digital.ai harmless from and against all claims, suits, and damages (including reasonable attorney fees) arising out of or relating to third party claims resulting from obligations, liabilities, warranties, guarantees, and/or indemnities which exceed the obligations, liabilities, warranties, guarantees, and/or indemnities set out in the End Customer T&Cs.
- Indemnity by Digital.ai11.1 Digital.ai will (i) defend, or at its sole option settle, any claim against Partner on the basis of infringement of Digital.ai’s Software on any patent in the country where Digital.ai has its registered address, trademark, copyright or trade secret; and (ii) pay any final judgement entered against Partner on such claim or any settlement entered into by Digital.ai on Partner’s behalf, provided that: Partner (a) notifies Digital.ai promptly of each such claim; (b) gives Digital.ai sole control of the defense and settlement of the claim; (c) fully cooperates with Digital.ai in the defense or settlement of the claim at Partner’s own costs; and (d) takes no action that may prejudice Digital.ai’s ability to defend the claim.11.2 If all or any part of Digital.ai’s Software are, or in the opinion of Digital.ai are likely to become, the subject of a claim of infringement, Digital.ai may at its sole discretion, (i) procure for Partner the right to continue to distribute such software products or the affected part thereof; (ii) replace such software products or affected part with other suitable software; (iii) modify such software products or affected part make it non-infringing; or (iv) if none of the foregoing remedies is commercially feasible, Digital.ai shall terminate the licenses with the End Customers and refund the license fees received from such End Customers for such affected software products less a usage charge based on a 12 month amortization schedule.11.3 Digital.ai has no indemnity or other obligations to Partner under this section to the extent the claim is based on: (i) failure by Partner to distribute an update provided by Digital.ai if infringement could have been avoided by use of the updated version; (ii) Partner’s distribution or use of Digital.ai’s Software in any manner inconsistent with this Agreement; or (iii) modification, alteration, or enhancement to Digital.ai’s Software not performed or expressly authorized by Digital.ai.11.4 The provisions of this Section 11 (Indemnity by Digital.ai) state the entire liability and obligations of Digital.ai and the exclusive remedy of Partner for claims of infringement of third party rights.
- Limitation of Liability12.1 Save for Digital.ai’s intentional or gross negligence, Digital.ai’s aggregate liability resulting from a performance or non-performance or otherwise relating to this Agreement, and regardless whether the claim for such damages is based in contract, tort, strict liability, or otherwise, is limited to the higher of (i) fifty thousand U.S. Dollars ($50,000); or (ii) the amount of Commission paid by Digital.ai to Partner in the 12 months preceding the occurrence of such liability, even if Digital.ai has been advised of the possibility of such damages.12.2 In no event is Digital.ai liable for any indirect, special, incidental, consequential, or punitive damages, any loss of profits or revenues, loss or inaccuracy of any data, or any cost of procurement of substitute goods.
- Compliance with Laws13.1 Partner must comply at all times with all applicable national, state, and local laws and regulations governing the sale and use of Digital.ai Software or Subscription or the performance of services under this Agreement.13.2 Partner represents and warrants:(i) it is authorized to act in the capacity contemplated by this Agreement and each applicable attachment in accordance with all applicable laws;
(ii) it has complied with all applicable registration and licensing requirements;
(iii) neither it, nor anyone acting on its behalf, has violated or will violate the US Foreign Corrupt Practices Act; the UK Bribery Act; or any other applicable anti-bribery or anti-corruption law (the “Applicable ABAC Laws”) in connection with this Agreement;
(iv) neither it, nor anyone acting on its behalf, has violated or will violate any applicable import and export laws and regulations, including but not limited to economic and financial sanctions, export controls, anti-boycott and customs laws and regulations or any other applicable trade law (“Applicable Trade Laws”) in connection with this Agreement;
(v) neither it, nor anyone acting on its behalf, is an individual or entity included in a restricted or prohibited list pursuant to one or more of the Applicable Trade Laws (a “Blocked Person”);
(vi) neither it, nor anyone acting on its behalf, is an entity in which one or more Blocked Persons has in the aggregate, whether directly or indirectly, a 50 percent or greater equity interest or an entity that is controlled by a Blocked Person; and
(vii) neither it, nor anyone acting on its behalf, shall use any funds received from Digtial.ai directly or indirectly for the benefit of any Blocked Person or in any other way that would violate any of the Applicable ABAC Laws or Applicable Trade Laws.
(viii) If it has not already done so, Partner shall adopt and implement within 90 days of executing this Agreement policies and procedures reasonably designed to prevent Partner and anyone acting on its behalf from engaging in any activity, practice, or conduct that would violate any of the Applicable ABAC Laws or Applicable Trade Laws.13.3 Partner will not, directly or indirectly, export, transmit, distribute or use any Digital.ai Software, Subscription, or technical data (or any part of Digital.ai Software, Subscription, or technical data) or system or service incorporating any Digital.ai Software or Subscription to or in any country to which export or transmission is restricted by Applicable Trade Laws, without the authorization, if required, of the Bureau of Industry and Security of the U.S. Department of Commerce or any other applicable governmental entity that may have jurisdiction over export or transmission. Partner will not use or transfer any Digital.ai Software or Subscription for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.13.4 If Digital.ai receives notice that Partner is or becomes identified as a Blocked Person under Applicable Trade Laws, Digital.ai will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.13.5 Partner must ensure that subcontractors, subagents, vendors, or any other third parties performing services in connection with this Agreement and acting under its authority or control are aware of and do not violate the Applicable ABAC Laws or Applicable Trade Laws.
13.6 If Partner, or anyone acting on its behalf, suspects or comes to believe that Partner, or anyone acting on its behalf, has violated any of the Applicable ABAC Laws or Applicable Trade Laws, it shall notify Digital.ai promptly in writing of its suspicion or belief.
13.7 Notwithstanding anything else in this Agreement, Digital.ai may terminate this Agreement immediately without prior notice if Digital.ai suspects or believes in good faith that Partner, or anyone acting on its behalf, has violated or otherwise breached the terms of this Section 13.
- Term and Termination14.1 This Agreement is in effect as of the effective date and will continue for a period of 12 months thereafter (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew by operation of law. Should either party wish to terminate the Agreement after the initial term, each may do so in writing with 30 days’ notice to the other party prior to the desired termination date.14.2 Either party may terminate this Agreement immediately upon written notice to the other party.14.3 Upon termination or expiration of this Agreement, Partner will promptly (i) cease to act or identify itself as a Digital.ai ‘Partner’; (ii) cease to use and return to Digital.ai all of Digital.ai’s documentation or marketing materials and confidential information; and (iii) cease to use any of Digital.ai’s intellectual property, name, and logos.14.4 Termination or expiration of this Agreement is without liability such as, but not limited to, liability for loss of any distribution right, prospective profits, incurred expenditures, incurred investments, and commitments in connection with Partner’s business or goodwill.14.5 Termination of this Agreement expressly does not release parties from those obligations which, by their nature, are intended to remain in effect, including provision on intellectual property, indemnification, limitation of liability, confidentiality, and applicable law and dispute resolution.
- Miscellaneous15.1 Independent Contractor. The parties are independent contractors. Nothing in this Agreement may be construed to create a joint venture, employment relationship, or agency relationship between the parties. No party may act as authorized representative of the other party under this Agreement.15.2 Privacy and Security. Partner represents and warrants that the processing of any information defined as “personally identifiable information,” “personal information,” or “personal data,” as such terms are defined under applicable laws (“Personal Information”) required to facilitate the subject matter of this Agreement is in accordance with applicable laws and does not violate or infringe any right of a third party. Where the parties independently determine the purpose and means of processing under this Agreement, they will each comply with their respective obligations under applicable data protection laws. Where Digital.ai carries out processing of Personal Information on behalf of Partner, Digital.ai may, prior to any processing of Personal Information on Partner’s behalf, require Partner to accept additional terms, in particular to ensure compliance with applicable data protection laws and Digital.ai’s own policies. Partner indemnifies Digital.ai against any claim of a third party instituted for whatever reason in connection with the Personal Information processed by Digital.ai on behalf of Partner hereunder. If Digital.ai is under applicable law obliged to provide for information security protection under this Agreement, such information security protections shall meet the specifications agreed in writing between the parties regarding information security, and insofar as no specifications have been agreed, Digital.ai shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.15.3 Force Majeure. Digital.ai shall not be liable for, nor shall Digital.ai be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control, including any act of God or a public enemy; terrorist act; act of any military, civil or regulatory authority; change in any law or regulation; epidemic; pandemic; freight embargo; strike; fire; flood; earthquake; storm or other like event; disruption or outage of communications, power or other utility; labor problem; unavailability of supplies; introduction of a virus, worm or similar disabling code in the Software by Partner or an End Customer or a third party’ or any other cause, whether similar or dissimilar to any of the foregoing.15.4 Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.15.5 Waiver. 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.
15.6 Notices. All notices, instructions, requests and other communications required or permitted under this Agreement shall be in writing and shall be delivered in person or sent by either commercial overnight courier or certified or registered mail, return receipt requested, or electronic transmission such as electronic mail, to either party at the respective addresses set forth on the applicable Partner Commercial Terms Addendum agreed upon between the parties or to such other address as specified in writing by a party to the other party in accordance with the terms of this section. All such notices, instructions, requests and other communications shall be deemed effective (i) immediately if delivered in person; (ii) the next business day if delivered by commercial domestic overnight courier; (iii) three business days after deposit with the United States Postal Service, postage prepaid, if delivered by certified or registered mail; or (iv) when delivered, if delivered by electronic transmission such as electronic mail.
15.7 Governing Law. This Agreement shall be governed by the laws of the State of Delaware, which governing law shall control without giving effect to conflict of law principles and excluding the U.N. Convention on Contracts for the International Sale of Goods. Any suit or proceeding relating to this Agreement shall be brought exclusively before the state or federal courts located in the State of Delaware.
Any disputes arising in countries not recognizing or not executing court verdicts from the above jurisdictions shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC). Such disputes or claims shall be settled by simplified arbitration arranged by ICC in accordance with the rules of arbitration procedure adopted by ICC and in force at the time when such proceedings are commenced. Arbitration shall be conducted in the State of Delaware, before one arbitrator appointed in accordance with the ICC Rules. All arbitration shall be conducted in English. The award rendered thereon by the arbitrator shall be final and binding on the parties thereto, and judgement thereon shall be confidential and may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.
15.8 Assignment. Partner may not assign this Agreement without the prior written approval of Digital.ai. Digital.ai may assign this Agreement, including, without limitation, to an affiliate or its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
15.9 Entire Agreement. This Agreement forms the entire agreement and supersedes all prior or contemporaneous oral or written agreements between the parties with respect to its content. Any amendment or modification to this Agreement or any of its exhibits or annexes must be in writing signed by both parties.
Master Partner Agreement November 2020 v1
