This Agreement (the "Partner Agreement" or “Agreement”) is entered into between you or any Organization you are authorized to represent (the " “Partner"), and Worbix LLC (“Worbix”). This Partner Agreement does not have to be signed to be binding. Consent to this Agreement is indicated by completing and executing the Signup Form that will be provided by Worbix upon request.
"Agreement" means this Partner Agreement and all materials referred or linked to in here as may be modified by Worbix from time to time.
“End User” means the authorized actual user of the Worbix Service or the party to whom you make available or on whose behalf you use the Worbix Services.
"End User Data" means all information created, collected, submitted through use of Service by End User, or you acting on End User’s behalf, including materials posted to third party sites for public display.
“Implementation Fee” means the fees described in the Signup Form and paid for the initial training and implementation services.
“Partner Content” means content developed by Partner and distributed to End Users.
“Partner License Fee” means amounts paid in consideration of the Service for Partner and its End Users.
“Service” means the Worbix web-based marketing and sales software described on http://www.worbix.com and excluding any associated implementation, customization, training, consulting, additional support or other professional services, or any third third-party products or services.
“Signup Form” means that document provided by Worbix that when executed by Partner will indicate Partner’s acceptance of the terms of this Agreement and such additional terms as contained in the Signup Form.
“Terms of Service” means those terms and conditions imposed by Worbix which End Users must agree to, as such may be modified by Worbix from time to time. The Terms of Service may also be referred to as the “Worbix Terms of Service”.
"We", "us", “our”, and “Worbix” means Worbix, LLC.
"Worbix IP" means all intellectual property of Worbix, including but not limited to all patents, trademarks, logos, service marks, trade secrets, Worbix Confidential Information, copyrights, software, knowhow and other proprietary rights together with all copies, modifications and derivative works thereof.
“You” and “Partner” means the party, other than Worbix, entering into this Agreement.
- License: Worbix does hereby grant to Partner, subject to this Partner Agreement and terms in the Signup Form a, non-exclusive, non-transferable right to use the Service and to resell the Service to End Users for use in compliance with Worbix Terms of Service. Partner may assign this agreement with consent from Worbix.
- US Location: Each End User must be either businesses organized and operating exclusively in the United States or be a citizen of the United States, and all must be located in the United States.
- Use by Partner: The Service is for the exclusive benefit of End Users and their customers. Partner is not permitted to use Worbix Services for its own benefit, other than for the benefit of End Users. Notwithstanding the foregoing, all license restrictions in the Worbix Terms of Service apply to Partner.
- Partner End-User Terms: Partner may ask End Users to enter into agreements with Partner regarding Partner’s content or other services, however Partner may not impose terms in its agreement that are inconsistent with the Worbix Terms of Service.
- Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the Worbix Terms of Service or other unauthorized use of the Service and to assist us in the enforcement of the terms of the Worbix Terms of Service.
- Partner Branding: Subject to this Partner Agreement, Worbix may create a URL or, multiple URLs, as set forth in the Signup Form for the Service, personalized with Partner brand name. The Worbix site will not hide the fact that the Service is powered and/or owned by Worbix and will clearly identify itself as such.
- Representation: Partner is permitted to identify itself as a Worbix "Partner" or “Worbix Reseller” solely in connection with resale of the Service.
- Use of Worbix IP: All use of Worbix IP may be subject to guidelines established from time to time by Worbix.
- Terms of Service: Each End User must accept the Worbix Terms of Service and use the Service in accordance with the terms therein.
- End-User Data:
- Support: End User Support: Partner will provide all End User support including answering basic questions and issues with the Service, such as how to sign up, how to set and recover user names and passwords, how to configure the site, how to navigate the site, how to perform basic functions, etc.
- Partner Support: Worbix will provide support to Partner personnel answering questions related to advanced usage of Worbix or diagnosis and remedy of malfunctions with the Service.
- Implementation and License Fees. Partner shall pay to Worbix, upon execution of the Signup form, a one-time Implementation Fee in the amount specified in the Signup Form, towards implementation of the Service for Partner’s benefit and one-time setup and training.
- End User Fees. Partner shall pay to Worbix the fees for each End User as set forth in the Signup Form.
- Taxes. Payments made under this Partner Agreement exclude any taxes or duties payable in respect of the Service in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Worbix, Partner must pay to Worbix the amount of such taxes or duties in addition to any fees owed under this Partner Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Worbix any such exemption information, and Worbix will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
- End User Pricing: In all cases Partner will set its own pricing to each End User. Partner will bear the risk of non-payment by End Users, and Partner is solely responsible for all of its costs and expenses. Partner may request that Worbix terminate an End User.
- Invoicing and Payment Terms: Worbix will invoice Partner for the Partner License Fee and the End User Fees, within ten days of the close of each Calendar month. Payment is due within 20 days of the date of the Invoice. Worbix may suspend Services to End Users if Partner does not honor the payment terms set forth herein.
- Worbix Reserved Rights. Notwithstanding anything to the contrary contained in this Partner Agreement, except for the limited resale right in Section 1 above, Worbix will retain all rights, title and interest in its content, in Worbix IP and in the technology underlying the Service. No ownership rights to Worbix IP are being conveyed under this Partner Agreement or otherwise.
- Partner Reserved Rights. Notwithstanding anything to the contrary contained in this Partner Agreement, Partner shall retain all rights to Partner Content, except that Partner shall have no right to require Worbix to remove any Partner Content posted to the Service or used by an End User.
- End User Data. End Users retain the right to use any content posted by End Users or utilized in the Service by End Users.
- Service Feedback & Suggestions: In the event Partner provides any suggestions, feedback, comments, ideas, description of processes, or other information about or in connection with the Service or the Partner program, including without limitation any ideas, concepts, know-how or techniques contained therein ("Suggestions"), then Partner grants Worbix a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Suggestions for any purpose, without any compensation or restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Suggestions will be deemed your Confidential Information, and nothing in this Partner Agreement (including without limitation Section 8 (Confidentiality)) limits Worbix’s right to independently use, develop, evaluate, or market products, whether incorporating Suggestions or otherwise.
Partner Obligations and Liability
- Indemnity. Partner is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its resale of Services. Partner does hereby indemnify, hold harmless and (at Worbix’s option) defend Worbix from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which Worbix becomes liable arising from or relating to: (a) any breach or alleged breach by Partner of any term of this Partner Agreement, (b) the issuance by Partner of any warranty or representation regarding Worbix or the Services not specified in the Terms of Service or (c) any of your other acts or omissions in connection with the marketing or resale of the Service under this Partner Agreement.
Term and Termination
- Term. This agreement shall have an initial term of three years and shall thereafter automatically renew for terms of one year unless either party provides written notice of non-renewal not less than one-hundred-eighty (180) days before the automatic renewal thereof.
- Termination for Cause. Either party may terminate this Partner Agreement if the other party materially breaches any provision in this Agreement and fails to cure such breach within five (5) days of written notice of such breach.
- Termination Following Agreement Modification. Partner may terminate this Agreement upon notice within thirty (30) days following a material change to this Agreement implemented by Worbix.
- Effect of Termination. Partner agrees that Worbix will have no obligation or liability to Partner resulting from termination or expiration of this Partner Agreement in accordance with its terms. Upon termination or expiration of this Partner Agreement Partner must immediately cease using the Service, cease identifying itself as a Worbix Partner and cease using Worbix IP. Upon termination Worbix may suspend or terminate the Service of Partner’s End Users. Following termination of this Agreement Section 4 through 13 will survive as ongoing obligations of the Parties. Partner will pay all Fees due Worbix within ten days following the termination of this Agreement for any reason.
Except as otherwise set forth in this Partner Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as "Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Worbix Technology and any performance information relating to the Service shall be deemed Confidential Information of Worbix without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
Worbix Commitments; DISCLAIMER OF WARRANTIES
For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by Worbix with respect to use of the Service is made directly by Worbix to the End User in accordance with the Worbix Terms of Service and do not extend to you as a Partner. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you as a PARTNER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
- Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, WORBIX SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, WORBIX’S ENTIRE LIABILITY UNDER THIS PARTNER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY PARTNER TO WORBIX IN RESPECT OF THIS PARTNER AGREEMENT.
Dispute Resolution; Governing Law
- Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Partner Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Partner Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Minneapolis, Minnesota (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
- Governing Law; Jurisdiction. This Partner Agreement will be governed by and construed in accordance with the applicable laws of the State of Minnesota, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 11-A (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Minneapolis, Minnesota, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Minneapolis, Minnesota, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Worbix may bring a claim for equitable relief in any court with proper jurisdiction.
- Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section, nothing in this Partner Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
- Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Partner Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Partner Agreement regardless of when or where adopted.
Government End Users
The Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Partner Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
This Partner Agreement is the entire agreement between Partner and Worbix relating to the resale of Worbix Services as described in this Partner Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this Partner Agreement. If any provision of this Partner Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Partner Agreement may not be modified or amended except with the written agreement of each party. As used herein, "including" (and its variants) means "including without limitation" (and its variants). If either party to this Partner Agreement breaches any provision of this Partner Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Partner Agreement. No failure or delay by the injured party to this Partner Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Partner Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
This Agreement is effective upon Worbix and Partner executing a Signup Form.