Integration Partner Agreement
Partner Terms Of Service
BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE LAND GORILLA WEBSITE, OR BY EXECUTING AN ORDER FORM YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TERMS OF SERVICE”). THE COMPANY SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
The Company will provide the Company Service, and you may access and use the Company Service, in accordance with the Agreement. The Order Form may contain additional terms and conditions and information regarding the Company Service procured. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Company Service, those additional terms are hereby incorporated into the Agreement and govern the use of the Company Service.
Definitions. Capitalized terms not defined elsewhere in this Agreement or any separate Order Form have the meanings below.
“Authorized Specifications” means instructions, parameters, and other specifications which are mutually agreed upon by the parties, in writing. All Company Services will be performed based upon Company’s normal business practices, in accordance with normal industry standards (“Company’s Business Practices,”) unless there are any Agreed Specifications for a particular Company Service, in which case the Company Service will be performed as modified by the Agreed Specifications.
“Authorized Representative” means the person set forth on the order form as the Partner Administrator for the Partner or any person executing this Agreement or designated by either Party as designated contract with approval authority from time to time.
“Business Information” includes any and all of the following information of a part that has been or may hereafter be disclosed in any form, whether in writing, orally, electronically or otherwise, or otherwise made available by observation, inspection or otherwise by either party or its Representatives: (i) all information that is a trade secret under applicable trade secret or other law; (ii) all information concerning product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions, and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software, Software and computer software and database technologies, structures and architectures; (iii) all information concerning the business affairs of a party (which includes, but is not limited to, financial statements, financial projects and budgets, current and projected sales, Partner customer lists and files, contracts, the names and backgrounds of key personnel and personnel training techniques and materials, however documents) and all information obtained from the Disclosing Party’s documents or property or discussions with the Disclosing Party regardless of the form of the communications; and (iv) non-public Partner Data; (v) all notes, analyses, compilations, studies, summaries, and other material prepared by the Receiving Party to the extent containing or based, in whole or in part, upon any information in the foregoing. The term “Business Information” does not apply to information of a Disclosing Party that a Receiving Party demonstrates was, is or becomes generally available to the public other than as a result of a breach of the Agreement by the Receiving Party or its Representatives; was or is developed by the Receiving Party independently of and without reference to any Business Information of the Disclosing Party; or was, is or becomes available to the Receiving Party on a non-confidential basis from a third party not bound by a confidentiality agreement or any legal, fiduciary, or other obligation restricting disclosure.
“Partner Data” means any of Partner’s information, documents, or electronic files that are provided to Company hereunder.
“Client” means a customer of Company.
“Client Data” means any Client information, documents, or electronic files that are provided to Partner by Client or Company.
“Company Service(s)” means all functions, services, and responsibilities to be performed by Company under this Agreement.
“Confidential Information” means Business Information and Personal Information.
“Disclosing Party” means a party or its Authorized Representatives that provides information to the other, which receiving party shall be a “Receiving Party”, which includes the Receiving Party’s Representatives.
“Force Majeure Event” means a delay in performance or nonperformance directly or indirectly caused by circumstances beyond the control of the party affected including, but not limited to, act of God, fire, explosion, flood, war, act of or authorized by any government, accident, labor trouble or shortage, pandemic, local epidemic, inability to obtain material, equipment or transportation, failure to obtain or hardship in obtaining reasonably priced supplies of materials, or failure of usual transportation mode.
“Notice Address” means the address for notice given by Company or Partner in the Order Form as updated from time to time.
“Orders” means services subscribed to or requested by Client Users through the SAAS Application.
“Partner Services” means all functions, services, and responsibilities to be performed by Partner under this Agreement.
“Partner Subcontractor” means a subcontractor that is contracted by Partner.
“Personal Information” means a first name or initial, and last name, in combination with any demographic, medical or financial information such as age, gender, address, Social Security number, past, present or future physical or mental health condition or treatment, debt status or history, income and other similar individually identifiable personal information that is not publicly available and any other information that contains “nonpublic personal information” as that term is defined in the Gramm-Leach-Bliley Act.
“Representatives” means all directors, officers, employees, agents, consultants, vendors, subcontractors, professional advisors, and affiliates of a party.
“SAAS Application” Company’s web-based hosted application. Company has granted Client(s) and its Client Users the non-exclusive limited right to use the SAAS Application for Client’s business purposes. Orders are requested by Clients through the SAAS Application and are provided to the Client subject to the terms established through separate agreements between Company and the Client.
“Security Incident” means the successful or attempted as would be reasonably believed to have resulted in, unauthorized access, use, disclosure, modification, or destruction of information in, or interference with Application operation in an electronic information Application containing Confidential Information.
“Subscription” means the Company’s Service which Partner agrees to pay throughout a specified term.
“Third-Party Content” means all software, data, text, images, audio, video, photographs, and other content and material, in any format, that are obtained or derived from third-party sources outside of the Company that Partner may access through, within, or in conjunction with use of, the Company Services.
1. Application Programming Interface. Partner subscribes to the Company’s Application Programming Interface (“Company API”). Company hereby grants to Partner the non-exclusive limited right to use the Company API during the Term of the Agreement for Partner’s business purposes. In addition to the Company API. All rights in and to the Company API or other Company Services are reserved to Company.
(a) Use Restrictions. Partner agrees, and shall require all its employees, Partner Representatives, and Partner Subcontractor, not to directly, indirectly, alone, or with another party: (i) copy, duplicate create derivative works based upon, alter, edit, adapt, or translate the Company API, SAAS Application, or other Business Information accessed thereby; or (ii) license, sub-license, sell, resell, rent, lease, publish, transfer, or otherwise distribute or grant any rights in, or otherwise commercially exploit the Company API or SAAS Application in any form to any other party, nor shall Partner attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing. Partner acknowledges and agrees that Company shall at all times own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Company API and SAAS Application and any suggestions, enhancement requests, feedback, recommendations or other information provided by Partner relating to the Company API and SAAS Application.
(b) User Access. Partner is responsible for its, its employees, Partner Subcontractors, and its Partner Representatives’ compliance with this Agreement. Use is limited to Partner while conducting Partner’s business and may not be sublicensed or transferred.
(c) Hosting. Company will host and retain physical control over the Company API and make such Company API available to Partner through documented instructions.
(d) Subscription Plan. Partner agrees to the Subscription Plan (the “Plan”) stated in the Order Form. The Plan includes specific features to the Company API. Company reserves the right to update and modify Plans through the course of Partner’s subscription with notification to the Partner.
2. Term and Termination.
(a) Termination by Company. Company may terminate the relationship and, if applicable disable Partner access to the Company API and discontinue all Company Services if: (i) Partner fails to pay Company any delinquent amounts owed to Company; or (ii) Partner commits a material breach of its obligations under this Agreement or (iii) Partner use violates Company policy; or (iv) Upon the end of the Term provided that Company has provided ninety (90) days written notice to Partner of Company’s intent to terminate the relationship.
(b) Termination by Partner. Partner acknowledges that pricing is based on Company Service volume, number of Clients requesting Partner Services, and type of subscription by Partner. Therefore, the Company Service may not be terminated by the Partner during the Subscription Term except for cause as provided in this Agreement.
(c) Termination for Cause. Partner may terminate this Agreement upon written notice if Company materially breaches its obligations under this Agreement and fails to correct such breach within thirty (30) days of written notice to the Company specifying with sufficient detail the conduct that constitutes a material breach.
(d) Subscription Term. With regard to the Company API which shall have a Subscription Term of five (5) years unless otherwise specifically provided otherwise in the Order Form.
(e) Auto Renewal. The Company API Subscription shall automatically renew for successive periods as the Subscription Term unless stated otherwise in the Order Form. Partner shall have the right to terminate the Agreement at the end of the Term but only provided Partner gives Company written notice of its intent to terminate no later than ninety (90) days prior to the renewal date and only provided Partner is current on all amounts owed to Company.
(a) Price and Payment. With regard to the Company API, Partner agrees to a Subscription pricing model, whereby Partner is charged the new order fee “New Order Fee” indicated on the Order Form. The Order Fees shall be based on the number of New Orders sent to Partner during the monthly billing period multiplied by the New Order Fee, however, the monthly Order Fees shall be no less than the Minimum Monthly Charge stated on the Order Form.
(b) Invoicing and Billing. Unless stated otherwise in the Order Form the Company API fees will be automatically billed to Partner at the beginning of the month for the previous month’s usage using the ACH account instructions provided on the Order Form. Partner agrees to all automatic billing and charges to the Partner Account for the previous month’s Subscription fees.
(c) Insufficient Funds and Late Charges. Unless stated otherwise in the Order Form Company shall notify Partner in the event that Partners account can not be charged and provide Partner two (2) business days to resolve any payment issues. If the Partner fails to pay all amounts owed within this period, Company reserves the right to suspend Partners access to Company Service. All unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in termination of Company Service. Partner shall be responsible for all taxes associated with Partner Services other than U.S. taxes based on Company’s income. Company may terminate access to the Company Service until all amounts are paid in full. Disabling Partner’s access to the Company Service does not excuse Partner from paying for all Company Services. To reactivate Company Services from interruption, Partner will be required to pay all amounts owed, including current billings. Company reserves the right to require prepaid deposits for Company Services up to the estimated remaining Term of the Subscription at any time after a Partner’s account has been disabled more than two (2) times.
4. Independent Contractor; Authority. Company is an independent contractor and not the agent, employee, partner, or legal representative of Partner. Company will devote only such time to the performance of the Company Services as is reasonably necessary for the satisfactory performance of such Company Services. Except as specifically set forth herein, Company may provide Company Services for others, whether competitive with the business of Partner. Neither party has any authority to act on behalf of the other or to bind the other party or its property, to any agreement. Neither party may enter into, or purport to enter into, any agreement, promise or commitment, either expressly or by implication, with any third party on behalf of the other.
5. Non-Solicitation. Both Parties acknowledge and agree that during the Term of this Agreement and for a period of 2 years after its termination, neither Party shall not, directly or indirectly, recruit or solicit any employee, contractor, or agent of the other Party without prior written consent of the Company.
6. Partner Obligations.
(a) Client Data. By submitting information to Partner, Client represents that it has the right to all such Client Data. Partner acknowledges that Client owns all right, title, and interest in the Client Data to the exclusion of Partner; however, Partner is hereby granted, a non-exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify and display the Client Data solely for purposes of Client’s use of the Company API in providing Partner Services. Partner shall not use the Client Data except for internal business purposes, including evaluating its business processes, improving the Partner Services, or completing its obligations hereunder.
(b) Company Data. Notwithstanding the submission of Client Data, all right, title, and interest in any data or information collected by Company independently and with access to, reference to, or use of any of Partner Data, including, without limitation, any data or information Company obtains from Partner or Partner Representatives through the Company Service and Company API (whether the same as Partner Data or otherwise), will be solely owned by Company (collectively, “Company Data”) and subject to the confidentiality covenants set forth herein.
(c) Aggregated Data. Company will own all “Aggregated Data,” which consists of any data that is obtained for the purpose of analyzing, measuring, and reporting overall trends and behavior. Partner agrees that nothing in this Agreement prohibits Company from using such Aggregated Data for any purpose.
(d) Partner Data; Partner Responsibilities. Partner is responsible for ensuring that Partner and Partner Representatives’ use of the Company Service, provision of Client Data, and provision of Company Data is in compliance with all applicable laws and governmental regulations and Partner acknowledges that Partner assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
(e) Security. Partner is solely responsible for maintaining the security of all usernames and passwords granted to Partner, for the security of its information systems used to access the Company API and Company Service, and for the Partner compliance with the terms of this Agreement. Company will act as though any electronic communications it receives under Partner’s usernames have been sent by Partner. Partner will immediately notify Company if it becomes aware of any loss or theft or unauthorized use of any of Partner’s passwords or usernames. Company has the right at any time to terminate or suspend access to Partner if Company believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the Company Service, Company API, or Company’s network.
7. Confidential Information.
(a) Obligations Regarding Confidential Information. Should performance under this Agreement require either party to disclose to the other certain Confidential Information, each Receiving Party acknowledges the confidential and proprietary nature of the Confidential Information of the Disclosing Party and agrees that such Confidential Information: (i) shall be kept confidential by the Receiving Party; (ii) shall not be used for any reason or purpose other than to perform the Services contemplated by these Agreement and for the proper management and administration of the Services; and (iii) without limiting the foregoing, shall not be disclosed by the Receiving Party to any person, except in each case as otherwise expressly permitted by these Agreement or with prior written consent of an Authorized Representative of the other party, or if necessary to effectuate the Services contemplated by these Agreement and the party making the disclosure to a third party obtains reasonable assurances from the entity or person to whom Confidential Information is disclosed that it will remain confidential and be used, disclosed, transmitted, stored, or transported only as required by law or for the purpose for which it was disclosed to the person. Each party shall be responsible to the other party for a breach of the terms of this Agreement and for any Information Security Breach by itself or its Representatives.
(b) Reporting an Information Security Breach or Successful Security Incident. Receiving Party agrees to report to Disclosing Party any Information Security Breach and any Security Incident of which it becomes aware. Any report shall be made as soon as possible, but in no event later than 10 days following the date that Receiving Party becomes aware of the Information Security Breach or Security Incident. Receiving Party shall act as reasonably requested by Disclosing Party to document and mitigate the Information Security Breach or Security Incident. Receiving Party shall cooperate in evaluating the necessity of providing any and all notices of an Information Security Breach or Security Incident as deemed advisable or as otherwise required under applicable laws or regulations.
(c) Return of Confidential Information. Upon termination of this Agreement, each Receiving Party shall (i) destroy all Confidential Information of the Disclosing Party prepared or generated by the Receiving Party without retaining a copy of any such material (other than pursuant to a Receiving Party’s document retention policy and electronic backup systems, which shall nevertheless remain subject to these Confidential Information terms); and (ii) on written request, certify all such destruction in writing to the Disclosing Party, provided, however, that the Receiving Party may retain a list that contains general descriptions of the information it has returned or destroyed to facilitate resolution of any controversies after the Disclosing Party’s Confidential Information is returned.
(d) Disposal of Confidential Information. Partner agrees to maintain a security policy for the disposal of paper and any other media that contains Confidential Information that includes a technology or methodology that will render Confidential Information unusable, unreadable, or indecipherable. Partner will utilize standard commercial processes and procedures to wipe and remove all personally identifiable information data from all Partner databases, systems, applications, and other networks upon termination of this Agreement.
8. Disclaimer; Limitation of Liability.
(a) EXCEPT WITH RESPECT TO LIABILITY ARISING FROM: (I) THE BREACH OF A PARTY’S OR ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS; (II) THE INDEMNIFICATION OBLIGATIONS HEREUNDER; AND (III) PARTNER’S LIABILITY ARISING UNDER THE PAYMENT PROVISIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES IN ANY WAY RELATING TO OR ARISING UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT , AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
(c) Limitations of Remedies and Liability. Company’s total aggregate liability to Partner, for any reason and upon any cause of action involving Company Services, including without limitation, breach of contract, negligence, strict liability, misrepresentations, and other torts, is limited to the fee paid for the specific Company Service under which the claim arose and nothing more.
(a) Company Indemnification. Company shall defend, indemnify and hold harmless Partner against any third party claim, suit or action, damages, or awards including attorneys’ fees and costs, to the extent arising out of (i) any actual breach by Company of this Agreement (ii) if Company is determined to have violated any applicable law or regulation; (iii) the infringement or misappropriation of any third party U.S. patent, copyright, trademark or trade secret caused by the use of Company, provided, however, that Partner must (i) give Company prompt written notice of the applicable claim, suit or action, (ii) give Company full control over the defense and any settlement of such claim, suit or action in request, and (iii) provide Company with all information and assistance reasonably requested by Company in connection with the defense and any settlement of such claim, suit or action. Should the Company become, or in its reasonable opinion, be likely to become the subject of a claim of infringement of a U.S. patent, trade secret or copyright, Company shall have the option, at its expense, to do one of the following: (A) procure for Partner the right to continue to use the Company Service; (B) replace or modify the alleged infringing Company Service to make it non-infringing, provided that the same functions are performed by the replacement or modified program; or (C) if (A) or (B) above are not commercially reasonable, Company may terminate this Agreement by providing Partner no less than 20 business days’ written notice. Notwithstanding the foregoing, Company shall have no liability hereunder in respect of any infringement or misappropriation caused by any modification of the Company software or Company Service by anyone other than Company or the combination of the Company Service with any third-party product by anyone other than Company.
(b) Partner’s Indemnification. Subject to 9(a), Partner shall indemnify, defend, and hold Company, its subsidiaries and other affiliates, and their respective directors, officers, employees and agents harmless from and against any and all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) arising out of or in connection with: (i) use by the Partner of the Company Services; (ii) any other product or service offered or sold by Partner whether in conjunction with Company Services or otherwise that involves a Company Client; (iii) any breach by Partner of this Agreement ; (iv) any violation by Partner of any applicable law or regulation; (v) payment or failure to pay any Partner Subcontractor; and (vi) any and all claims against Company arising out of act or omission of Partner or Partner Subcontractor with regard to Partner Service.
10. Disclaimer of Warranties. Except for any service level commitments set forth in the Agreement and Order Form, Company makes no, and hereby disclaims any, representations or warranties of any kind, expressed or implied, with respect to the Company Services, Company API, Company SAAS Application, or the availability, functionality, performance, or results of the use of the Company Service. Without limiting the foregoing, except as specifically set forth in the limited service level commitments in any Order Form or outlined with support services, Company disclaims any warranty that the Company Services or associated Company API, or the operation of the SAAS Application are or will be accurate, error-free or uninterrupted. Company makes no, and hereby disclaims any, implied warranties, including without limitation, any implied warranty of noninfringement, merchantability, or fitness for any particular purpose or arising by use of trade, course of dealing, or course of performance.
(a) Force Majeure. Neither party shall be liable for delay in performance or nonperformance, directly or indirectly, caused by a Force Majeure Event.
(b) Benefit; Assignability. this Agreement is not assignable or transferable by Partner, in whole or in part, except with the prior written consent of Company. Company reserves the right to sell, assign, or otherwise transfer its right to receive payment under this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal representatives, successors, assigns, and beneficiaries-in-interest.
(c) Notices. Any and all notices or other communications required or permitted to be delivered hereunder or by law to be served on, given to, or delivered to any party hereto by any other party to the Notice Address will be deemed given to the Party when delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepared); sent by confirmed email receipt, if such confirmation is received during normal business hours, otherwise, receipt shall be deemed received the next business day; or received by the addressee, if sent by certified mail, return receipt requested, in each case to Notice Address.
(d) Governing Law. Company and Partner agree this Agreement shall be construed in accordance with and governed by the internal laws of the State of California, U.S.A., without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state courts in and for San Luis Obispo County, California, U.S.A. (or, if there is federal jurisdiction, the United States District Court for the Central District of California), and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. In no event shall this Agreement or the transactions contemplated hereby be deemed governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Partners or Users not residing in the United States are required to agree to the following as additional General Terms applicable in each jurisdiction where Company Services are to be provided. Partner and Company hereby waive, to the fullest extent permitted by law, any claims, defenses, excuses, or remedies available under local law of the country in which the Company Services are accessed and not set forth in this Agreement or otherwise provided by the laws of the United States or the State of California.
(e) Attorneys’ Fees. To the extent not otherwise provided to the contrary in this Agreement, if any party hereto institutes an action or other proceeding to enforce any rights arising out of this Agreement, the party prevailing in such action or other proceeding shall be paid all reasonable costs and attorney’s fees by the non-prevailing party, such fees to be set by the court and not by a jury and to be included in any judgment entered in such proceeding.
(f) Arbitration. All disputes arising under or in connection with this Agreement shall be submitted to arbitration through Judicial Arbitration and Mediation Services, Inc. (JAMS) or successor organization for binding arbitration. Arbitration shall be in San Luis Obispo County, California, U.S.A. (or other location as both parties may agree) by a single arbitrator with experience as a Superior Court Judge or at least 5 years arbitrating complex technology contracts. The arbitrator shall be selected by the parties and if they cannot agree by JAMS in an impartial manner determined by it. Except as may be otherwise provided herein, the arbitration shall be conducted under the California Arbitration Act, Code of Civil Procedure §§1280 et seq. The Parties shall have the discovery rights provided in Code of Civil Procedure §§1283.05 and 1283.1. The arbitration hearing will be commenced within one-hundred eighty (180) days of the filing of this application with JAMS by any party hereto, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing. The arbitrator shall have complete authority to render any and all relief, legal and equitable, appropriate under California law and this Agreement. The arbitrator shall award costs of the proceeding, including reasonable attorney’s fees, to the Party determined to have substantially prevailed. An award of arbitration may be confirmed in a court of competent jurisdiction. Notwithstanding the foregoing, either party may seek equitable relief to enforce the provisions of Section 7. Notwithstanding the foregoing, with regard to international disputes, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator, which shall be a retired judge from the U.S. court system or an attorney with at least ten years of experience in business law. The seat of the arbitration will be California, United States of America. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. International Partners expressly agree to this method of dispute resolution, including selection of exclusive venues for such arbitration.