Digital.ai Partner Terms — Short Form
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 to obtain a one-time right to resell a license both (i) object code versions of the software or run-time modules in object code as further described on an Order Form (the "Software") and (ii) and associated Software support ((i) and (ii) together, the "Subscription") to an End Customer (as defined hereafter) under the terms of this Agreement.
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 Appointment
1.1 Digital.ai hereby appoints Partner as a non-exclusive reseller of a one-time right to resell to End Customer, as identified in the Order Form.
1.2 Partner will resell Subscriptions in its own name and for its own risk and account.
1.3 Partner shall either (i) require that the End Customer to whom Partner sells a Subscription signs Digital.ai’s Master Subscription Agreement (“End Customer T&Cs”); or (ii) End Customer has a previously negotiated a master subscription agreement with Digital.ai. Partner may not make any representations or warranties which exceed the representations and warranties made by Digital.ai under the End Customer T&Cs.
1.4 Partner shall always properly attribute Digital.ai as the proprietary owner of the Software, its components, and its functionalities.
1.5 Digital.ai retains all rights not expressly granted to Partner under this Agreement.
- Reseller License Compensation
2.1 Partner will execute an Order Form to resell the Software to the End Customer.
2.2 Partner shall remit payment to Digital.ai Net 30 days from Digital.ai's invoice to Partner, subject to deduction and withholding of the agreed Compensation rate as defined in the “Commercial Terms” addendum, regardless of whether Partner has been paid by End User. Digital.ai will distribute temporary license keys to Partner until such time an applicable invoice is paid in full. 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. 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 Upon receipt of the Partner’s Purchase Order and acceptance of End User’s T&C’s, Digital.ai 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.
2.5 Notwithstanding anything to the contrary contained herein, Partner shall not be due any Compensation if such Compensation was earned by violating applicable law, Digital.ai policy, or this Agreement.
PART (B) GENERAL APPLICABLE TERMS & CONDITIONS
- Intellectual property
3.1 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.
3.2 During the term of this Agreement, either party may use the other party’s name and logo for the limited purpose of promoting Digital.ai’s Software.
3.3 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.
3.4 Digital.ai retains all rights not expressly granted to Partner under this Agreement.
4.1 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. Partner acknowledges that Digital.ai’s Software contain valuable trade secrets and confidential information of Digital.ai.
4.2 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.
4.3 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.
4.4 Upon request and upon termination of this Agreement (unless agreed otherwise by the parties at the time), each party will destroy or delete permanently the other party’s confidential information.
4.5 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.
- Warranty by Digital.ai
5.1 Digital.ai warrants that it may enter into this Agreement with Partner.
5.2 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 Digital.ai
6.1 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.
6.2 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 Liability
7.1 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 Compensation 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.
7.2 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.
- Partner Representations and Warranties
8.1 Partner represents and warrants that it shall comply at all times with all applicable national, state, and local laws and regulations governing the sale and use of Software or Subscription or the performance of services under this Agreement.
8.2 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 Digital.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.
8.3 Partner represents and warrants that it will not, directly or indirectly, export, transmit, distribute or use any Software, Subscription, or technical data (or any part of Software, Subscription, or technical data) or system or service incorporating any 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 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.
8.4 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.
8.5 Partner represents and warrants that it’s 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.
8.6 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.
8.7 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.
- Indemnity by Partner
9.1 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.
- Term and Termination
10.1 This Agreement is in effect as of the Effective Date, as set forth below, and will continue for a period of 12 months thereafter.
10.2 With 30 days written notice, either party may terminate this Agreement immediately upon written notice to the other party.
10.3 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.
10.4 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.
11.1 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.
11.2 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. 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.
11.3 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.
11.4 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.
11.5 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.
11.6 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.
11.7 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.