Terms of Use: Partner Agreement
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BY CLICKING THE "I AGREE" BUTTON DISPLAYED AS PART OF THE PARTNER SIGN UP PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR APPLICATION TO THE EXGIS PARTNER PROGRAM (THE "PROGRAM"). IN THE EVENT EXGIS ACCEPTS YOUR APPLICATION TO THE PROGRAM, YOU AGREE THAT THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST CANCEL THE SIGN UP PROCESS AND MAY NOT PARTICIPATE IN THE PROGRAM.
THE "EFFECTIVE DATE" OF THIS AGREEMENT SHALL BE THE DATE OF YOUR ACCEPTANCE.
This Exgis Partner Program Agreement ("Agreement") includes the terms and definitions set out below, the Exgis Partner Program (the "Program") policies referenced in this Agreement, and any additional written terms posted on the Program web site related to the benefits you receive from Exgis under this Agreement. This Agreement is not effective unless and until Exgis notifies you in writing (including via email) that you have been accepted by Exgis into the Program. If accepted, Exgis will notify you. If accepted into the Program, you will be designated by Exgis into a Program Type. Where this Agreement refers to Program Benefits or services offered by Exgis to you if applicable to your Program Type, such Program Benefits or services apply to you only if Exgis has notified you of your acceptance into the applicable Program Type. As referred to in this Agreement, "Exgis" a means Exgis Inc., a Canadian corporation, having its principal place of business at 92 Caplan Avenue, Suite 259, Barrie, ON L4N 0Z7 Canada.
1. DEFINITIONS
"Application" means the Exgis online software platform and expense management service, including mobility components, identified as part of the Application by Exgis, as may be provided by Exgis to you under this Agreement. Depending on the Program Type you qualify for, licenses to the Application may be provided to you for demonstration, development, training and/or support purposes as provided below. To the extent that your Program Type includes Application licenses, such licenses may also include certain related Application documentation and updates. The Application does not include support, implementation, customization, training, consulting or other professional services, or third party products or services (other than those third party products and services Exgis makes generally available to its customers as part or the Application at no additional charge).
"End User" means a third party that is licensed to use the Application for its own business operations or is targeted as an Opportunity for such licensing.
"First Year Net Revenue" means, with respect to a Qualified Purchase, the subscription fees owed by the referred Exgis customer by reason of such purchase (net of any discounts, taxes payable and subsequent refunds not due to incorrect invoicing or a contract breach by Exgis) over the 12-month period beginning on the subscription start date of the purchase. First Year Net Revenue does not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.
"Opportunity" means, in Exgis' reasonable determination: (i) a referral of a new Exgis End User customer, or a new subsidiary, division or other distinct business unit of a pre-existing Exgis End User customer; or (ii) a purchase of additional Application subscriptions (as opposed to a renewal of pre-existing subscriptions) for a minimum of a one year subscription term by a pre-existing Exgis End User customer, which purchase resulted from Partner's specific sales efforts related to such additional purchase; provided, that the order must be executed within 6 months of the referral, and the Opportunity cannot be (a) an existing Exgis opportunity then currently, or during the prior sixty (60) days, in Exgis' active sales process, or (b) an affiliate of Partner which controls, is controlled by, or is under common control with, Partner.
"Order Form" means the Exgis form of ordering document for one or more types of Program Benefits.
"Program Benefits" means the materials and/or services that may be provided to you under this Agreement, depending on your Program Type.
"Program Policies" means the aggregate of policies and documentation describing the Program, Program Types, Program Benefits, and other policies governing your participation in the Program, as set forth in this Agreement and on the Program Site.
"Program Site" means the Program website located at http://w1.exgis.com
"Program Type" means a sub-category of the Program that has a particular scope and particular set of Program Benefits, as set forth in this Agreement and the Program Policies.
"Qualified Purchase" means, in Exgis' reasonable determination, a purchase of one or more Application subscriptions that is fully executed and closed within six months of the corresponding Opportunity referral, and that subscription is either (a) an annual (or longer) subscription or (b) a monthly subscription that equals or exceeds a period of 4 months.
2. PROGRAM OVERVIEW
Your application for membership to the Program consists of this Agreement together with a completed online application form completed by you in which you have specified which Program Type you wish to be considered for. If accepted, you will be notified of the Program Type for which you have qualified. Your membership in the Program is subject to (1) your timely payment of the membership fees, if any, and (2) your continued adherence to the Program Policies for the applicable Program Type. Fees are subject to change at Exgis' discretion. Payment obligations are non-cancelable and fees paid are non-refundable.
Each wholly and majority owned subsidiary that desires to be included in your membership in the Program must complete its own application for membership. Following processing of a wholly or majority owned subsidiary's application by Exgis, such subsidiary shall be notified as to which of the Program Types such subsidiary has qualified. Each subsidiary shall receive the Program Benefits associated with the Program Type into which such subsidiary has qualified.
Following your acceptance by Exgis into the Program, provided that you continuously meet the Program entry and qualification criteria as published by Exgis on the Program Site, you shall receive during the term of this Agreement all of the Benefits specified for the applicable Program Type in the Program Policies published by Exgis. These Benefits are subject to change in Exgis' discretion; however they will not be materially decreased during a term for which you have paid a membership fee. The Program policies, incorporated in this Agreement, are subject to change in Exgis' discretion and may contain additional terms.
3. REFERRAL PAYMENTS
If accepted into the Program, Exgis will pay you a referral fee for each Opportunity you submit to Exgis that results in a Qualified Purchase.
(a) Referral Fees
Unless otherwise specified in the Program Policies for your Program Type, for each Opportunity that you submit to Exgis that results in a Qualified Purchase, Exgis will pay you a referral fee, in an amount equal to 20% of the monthly Service fee, for as long as the Qualified Purchaser (End User) remains a fully paying customer of Exgis in good standing, and you remain an active partner of Exgis in good standing.
(b) Payments
Exgis will be solely responsible for billing customers of the Service and collecting payment. Exgis will pay fees owed to you for any Qualified Purchase within thirty (30) days after the end of the month in which the Qualified Purchase is finalized. A Qualified Purchase is finalized when (a) payment is received for an annual (or longer) subscription or (b) payment is received for the second month of a monthly subscription. Exgis will provide a summary report with each payment showing how the payment was calculated. If either party determines an error was made in the calculation of payment, each party agrees to work diligently and in good faith to resolve the error and to ensure proper payment is made.
If for any reason a payment is made to you in error, or in the event a referred customer fails to make a required payment, or if the applicable customer agreement is terminated before the expiration of its stated term, Exgis shall be entitled to a refund of the corresponding payments made to you. Exgis may, at its sole discretion, offset such refundable amounts against fees owed to you by Exgis hereunder, or invoice you for such refundable amounts. Any such invoiced amounts are due and payable by you within 30 days after the invoice date. If you refund fees to Exgis because of a referred customer's nonpayment, and Exgis later collects the corresponding fees from such customer, Exgis will repay you the applicable fee for such Qualified Purchase less a deduction to cover one-half of Exgis' collection and administrative costs, such deduction not to exceed one-half of the fee to which you would otherwise have been entitled. Exgis' right to a refund with respect to any Qualified Purchase shall expire 90 days after the one-year anniversary of the subscription start date of that Qualified Purchase.
(c) Opportunity Submission
Upon completion and submission of an enrollment application and Exgis' acceptance of your participation in the Program, you will receive via email, a password to access the Exgis Partner Zone (“Partner Zone”). The Partner Zone allows you to input and track opportunities as related to the selling of the Exgis Service. You must complete and submit each Opportunity you refer to Exgis. Exgis then will qualify the Opportunity and notify you via email if any Opportunity is rejected. Both parties agree to use the information contained within the Partner Zone solely for purposes related to your membership in the Program. In submitting personal data regarding an Opportunity, you are responsible for complying with all applicable laws governing your collection, storage, processing, use and transfer of such information. You authorize Exgis to process such data as reasonably required to consummate the Opportunity. Exgis will process and use personal data in accordance with the instructions received from you, and will not process or use such data in a manner different from that necessary to carry out Exgis' obligations under this Agreement, provided however, that Exgis may be required to provide personally identifiable information to third parties to comply with legally mandated reporting, disclosure, or other legal process requirements. As the data provider, you are warranting that you have provided the data subjects with all appropriate notices and have obtained all appropriate consents to transfer the data to Exgis and allow its processing according to the terms of this Agreement.
4. TRAINING
(1) Application Training
Exgis will provide material to help you understand the functionality of the Application. Should it deemed necessary by both parties, Exgis’ will conduct one initial training session on the Application via online conferencing for you, the timing to be mutually determined by the parties. Your sales representatives or other appropriate personnel will be trained on the general value proposition and positioning of the Application and the process for submitting leads to Exgis.
Your sales representatives generating leads for the Application must be reasonably capable of effectively delivering the Exgis value proposition and must be generally knowledgeable about the Application and its interface, advantages and high-level functionality.
You agree that your sales representatives and other personnel engaged in marketing and generating leads for the Application will use reasonable efforts to participate in the basic online training offered for free by Exgis to its users generally. As Exgis upgrades the Application, your sales representatives and other personnel may be asked to undergo further training to become proficient in generating leads based on the Application's new features and functions. You and your personnel agree to make reasonable, good faith efforts to participate in such further training.
You agree to use reasonable efforts to advise Exgis of any demonstrations required to market the Application to prospective customers with a potential user base of greater than twenty-five (25) people.
(2) Technical Training
If applicable to your Program Type, Exgis will offer you technical training in a form determined by Exgis and as described in the Program Policies. Such training may, in Exgis' discretion, be at additional cost to the Program membership fees. If any additional fees apply, they will be communicated to you as part of response for your request for technical training.
5. APPLICATION LICENSES
If applicable to your Program Type, then upon Exgis providing you with log-in credentials you will be granted a non-exclusive, non-transferable limited license for the applicable number of licenses to use the Application for (depending on your Program Type) demonstration, development and/or testing purposes as follows in this Section 5 and as set forth in the Program Policies, to: (a) demonstrate the Application to potential end users solely in connection with your Program membership; (b) integrate the Application Programs with your application program or service, and (c) provide training for the Application and the value added package to your employees. In no event shall you (i) license, sublicense, sell, resell, transfer, assign, distribute or (except as provided in this Agreement) otherwise commercially exploit or make available to any third party the Application in any way; (ii) modify or make derivative works based upon the Application; (iii) create Internet "links" to the Application or "frame" or "mirror" it on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Application for the purpose of (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Application, or (c) copying any ideas, features, functions or graphics of the Application. User licenses cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer need to use the Application under this Agreement. Exgis shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Application.
6. TECHNICAL SUPPORT
As a member of the Program, you are eligible to receive technical support from Exgis for an additional cost above any applicable Program membership fee. If applicable to your Program Type, you may receive a limited number of annual technical support cases at no additional charge. The technical support program offerings will be provided under Exgis' technical support policies in effect at the time the services are provided. For purposes of this Agreement, technical support does not include support for third party programs or services. Exgis' technical support policies are subject to change at Exgis' discretion.
7. MARKETING MATERIALS
Your use of the Exgis marketing programs, marketing materials, and marketing tools shall be subject to the terms below. Exgis may change the logo and advertising guidelines at any time, and, upon reasonable notice from Exgis, you shall promptly modify your use of Exgis marketing materials to conform to any such changed guidelines.
If applicable to your Program Type Exgis grants you a non-exclusive, nontransferable, limited license to use Exgis marketing materials as applicable to such Program Type, solely for the purpose of creating, executing, and monitoring marketing campaigns related to Exgis products and services. You may allow third parties to use Exgis marketing materials for the purpose of creating, executing, and monitoring marketing campaigns related to Exgis products and services on your behalf, provided that you ensure that all such use is in accordance with this Agreement. You agree to be responsible for any misuse of Exgis marketing materials by you or any third party using the marketing materials on your behalf and you agree to use the marketing materials at your own risk.
You are licensed and agree to use the marketing materials for lawful purposes only. You agree not to create any content or otherwise transmit any information or material that: (1) is false or misleading; (2) is harassing or invades another's privacy, harms minors in any way, or promotes bigotry, racism, hatred or harm against any group; (3) is obscene; (4) infringes another's rights, including but not limited to intellectual property rights; (5) constitutes unsolicited commercial email or "spam"; or (6) violates any applicable laws or regulations. You, and not Exgis, are responsible for all content and other materials that you upload, post, email or otherwise transmit with regard to the Exgis marketing materials. You agree that Exgis in its sole discretion, may at any time: (i) terminate your right to use the Exgis marketing materials and remove any such content or other materials from the Program Site if you breach the terms of this section and fail to correct such breach within 30 days of written notice from Exgis, and (ii) make changes to or discontinue any and all aspects of the Exgis marketing materials. Exgis expressly reserves the right to suspend or terminate your use of the Exgis marketing materials if your use of the marketing materials is in Exgis' judgment likely to cause loss or damage. You shall be financially responsible to Exgis for any such use that results in loss or damage.
The Exgis marketing materials contain or may contain in the future information, text, photographs, graphics, and other materials that may be protected by copyrights, trademarks, trade secrets or other proprietary rights (collectively "Marketing Content"). Except as expressly authorized by Exgis or advertisers, sponsors, or other third parties owning such Marketing Content, you agree not to copy, distribute, modify, duplicate, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Marketing Content. All Marketing Content is provided to you AS-IS, without warranty of any kind. Exgis does not guarantee the accuracy, quality or usefulness of any Marketing Content or any additional marketing material.
You shall cooperate with Exgis to allow for review of your use of the marketing material and compliance with Exgis' quality standards. If Exgis, in its sole discretion, determines that your use of the marketing material is not in compliance with this Agreement, you shall promptly modify or discontinue your use as directed by Exgis.
8. OPT-IN TO MARKETING
While you may opt out of receiving information from Exgis related to various programs and services, as a member of the Program in any Program Type you will need to know about membership and participation in the Program, new related services, Exgis products, offerings, conferences, and training. As such, your participation in the Program will serve as an opt-in to receive Exgis marketing that may be deemed relevant to Exgis partners. You will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons who are signed up to the Program on your behalf.
9. ADDITIONAL EXGIS BENEFITS
From time to time, during the term of this Agreement, Exgis may provide you with access to additional or different Exgis marketing materials, software or services related to the Partner Program. Your use of the additional Program Benefits shall be subject to the terms of this Agreement and any additional written terms posted on the Partner Zone site related to the additional Program Benefits.
10. TRADEMARK LICENSE
Subject to your acceptance by Exgis for membership into the Program, each party hereby grants to the other a worldwide, nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, in your case, "Exgis" and the associated logo and, in Exgis' case, your company name and the associated logo (collectively, "Marks") solely in connection with each party's rights, duties and obligations under this Agreement.
Any use of Marks shall be in accordance with the granting party's reasonable trademark usage policies, with proper markings and legends, and subject to granting party's prior written approval. The granting party may withdraw any approval of any use of its Marks at any time in its sole discretion.
During the period of use, the licensed party shall reasonably cooperate with the granting party in facilitating the granting party's monitoring and control of the nature and quality of products and services bearing the granting party's Marks, and shall supply the granting party with specimens of the licensed party's use of the granting party's Marks upon request. If the granting party notifies the licensed party that the licensed party's use of the granting party's Marks is not in compliance with the granting party's trademark policies or is otherwise deficient, then the licensed party shall promptly comply with such policies or otherwise as directed by the granting party. Neither party shall make any express or implied statement or suggestion, or use the other party's Marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the other party or its business, products or services.
Each party acknowledges that the other party's Marks are and shall remain Marks of the other party. Neither party shall gain any right, title or interest with respect to the other party's Marks by use thereof, and all rights or goodwill associated with the other party's Marks shall inure to the benefit of the other party.
11. OWNERSHIP AND RESTRICTIONS
Exgis retains all ownership and intellectual property rights to anything developed by Exgis and/or delivered to you by Exgis under this Agreement, including without limitation the Application and all marketing material (collectively the "Exgis Property").
You may not:
- Remove or modify any program markings or any notice of Exgis' or its licensors proprietary rights;
- Make the Application, any materials delivered hereunder, or any materials resulting from the services available in any manner to any third party for use in the third party's business operations, other than as expressly permitted in by Exgis for your Program Type;
- Cause or permit reverse engineering (unless required by law for interoperability), disassembly, decompilation of the Application;
- Use the Exgis Property in a manner that misrepresents your relationship with Exgis or is otherwise misleading or that reflects negatively on Exgis;
- Use or duplicate the Exgis Property provided to you for any purpose other than as specified in this Agreement or make the Exgis Property available to unauthorized third parties; or
- Use the Exgis Property for your own internal business operations, or use the Exgis Property or make the Exgis Property available in any manner to any third party for use in the third party's business operations or for any other commercial or production use, other than as expressly permitted in the Program Policies for your Program Type.
12. WARRANTIES; DISCLAIMERS AND REMEDIES
EXGIS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE APPLICATION, WHICH IS PROVIDED SOLELY IN ACCORDANCE WITH THE TERMS OF A SUBSCRIPTION AGREEMENT BETWEEN EXGIS AND AN END USER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL EXGIS BE LIABLE TO YOU OR TO ANY OTHER INDIVIDUAL OR ENTITY AFILIATED WITH YOU FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE SERVICE.
13. RELATIONSHIP OF THE PARTIES
In all matters relating to this Agreement you will act as an independent contractor. The relationship between Exgis and you is that of licensor/licensee. This Agreement does not create a partnership (notwithstanding any use of the term "partner" by the parties, which if used is meant only to convey a spirit of cooperation between the parties), joint venture, agency, employee/employer, lobbyist/lobbyist employer relationship, or franchisee/franchisor relationship between the parties. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this Agreement shall be construed to limit either party's right to independently develop or distribute products that are functionally similar to the other party's products, so long as proprietary information of the other party is not included in such products or used to create such products.
14. TERM, TERMINATION & RENEWAL
This Agreement shall remain in effect for 1 year from the date of notification to you of your acceptance as a member of the Program. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, including but not limited to your failure to pay the membership fees as required herein, the other party may terminate this Agreement. If Exgis ends this Agreement as specified in this paragraph, you must pay within 30 days all amounts which have accrued prior to such end. Except for nonpayment of fees or if the breach is of a nature which cannot be corrected, we each agree to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in breach of this Agreement, you may not use the Exgis Property.
Upon termination or expiration of this Agreement, you shall cease to be a member of the Program and all of your rights to receive the Program Benefits detailed in this Agreement and the Program Policies and to use the Exgis Property shall cease. Upon termination or expiration of this Agreement you shall cease using, and shall return or destroy, all copies of the applicable Exgis Property and shall return, destroy, or refrain from using any information regarding marketing or sales opportunities provided by Exgis.
This Agreement shall automatically renew at Exgis' standard terms and any applicable fees in effect at such time unless a party gives the other party written notice at least 30 days prior to its expiration. Provisions that survive termination or expiration include those relating to limitation of liability, payment, and others which by their nature are intended to survive.
Upon dissolution of your business, the filing of a voluntary or involuntary petition in bankruptcy by you or on your behalf, or termination or expiration of this Agreement, you agree to return or destroy and refrain from using any information regarding marketing and/or sales opportunities that has been provided to you.
15. CONFIDENTIALITY
By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Neither party shall use or disclose any Confidential Information (defined below) of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate.
"Confidential Information" means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that: (i) was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party; (ii) was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party; (iii) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party; or (iv) is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).
16. ENTIRE AGREEMENT
You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in an URL or referenced policy), together with any applicable additional written terms posted on the Program Site related to the Exgis Property or any applicable Order Form, are the complete Agreement for the Exgis Property and your membership in the Program, and that this Agreement supersedes all prior or contemporaneous Agreements or representations, written or oral, regarding the Exgis Property and your membership in the Program. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. It is expressly agreed that the terms of this Agreement and any Order Form with Exgis shall supersede the terms in any purchase order or other non-Exgis ordering document and no terms included in any such purchase order or other non-Exgis ordering document shall apply to the Program or to any products and/or services ordered. This Agreement and any Order Form with Exgis may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Partner Zone by authorized representatives of you and Exgis. Any notice required under this Agreement shall be provided to the other party in writing, in the case of Exgis by first class mail to 92 Caplan Avenue, Suite 259, Barrie, ON L4N 0Z7 Canada, "Attn: Partner Alliance Manager", with a copy addressed to "Attn: General Counsel".
17. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXGIS'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS EXGIS PARTNER PROGRAM AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE ANNUAL MEMBERSHIP FEES YOU PAID EXGIS FOR THE YEAR DURING WHICH A CLAIM IS MADE.
18. INDEMNIFICATION
You agree to indemnify Exgis for any loss, liability, damages, cost or expense (including attorneys' fees) arising out of any claims made against Exgis arising out of (1) your use of the marketing material where such claim relates to your activities, products or services, or (2) your breach of this Agreement or the Program Policies. Notwithstanding the above, you shall have no obligation to indemnify Exgis with respect to a claim of trademark or copyright infringement based upon your use of the marketing material as expressly permitted under this Agreement.
If your Program Type includes Application Demonstration Licenses, then the following terms in this Section 18 also apply to you.
(a) Indemnification by Exgis. Exgis shall defend, indemnify and hold you harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against you by a third party alleging that the use of the Application as contemplated hereunder infringes the intellectual property rights of a third party; provided, that you (a) promptly gives written notice of the Claim to Exgis; (b) gives Exgis sole control of the defense and settlement of the Claim (provided that Exgis may not settle or defend any Claim unless it unconditionally releases you of all liability); and (c) provides to Exgis, at Exgis' cost, all reasonable assistance.
(b) Indemnification by you. Subject to this Agreement, you shall defend, indemnify and hold Exgis harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Exgis by a third party alleging that any data entered by you into the Application, or your use of the Application in violation of this Agreement or the Program Policies, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Exgis (a) promptly gives written notice of the Claim to you; (b) gives you sole control of the defense and settlement of the Claim (provided that you may not settle or defend any Claim unless it unconditionally releases Exgis of all liability); and (c) provides to you, at your cost, all reasonable assistance.
19. GENERAL
This Agreement shall be governed by Ontario, Canada without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the provincial and federal courts located in Toronto, Ontario.
If you have a dispute with Exgis, or if you become subject to insolvency or other legal proceedings, you will promptly send written notice to: Exgis Inc., 92 Caplan Avenue, Suite 259, Barrie, ON L4N 0Z7 Canada, Attention: General Counsel.
This Agreement may not be assigned by you without the prior written approval of Exgis but may be assigned without your consent by Exgis to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Exgis directly or indirectly owning or controlling 50% or more of you shall entitle Exgis to terminate this Agreement for cause immediately upon written notice.
Except for actions for nonpayment or breach of Exgis' proprietary or intellectual property rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
You agree that you will visit the Partner Zone site on a regular basis so that you are aware of any changes Exgis may make to these policies from time to time.
You warrant that you have the authority to bind your wholly and majority owned subsidiaries to the terms of this Agreement and further warrant that you shall be responsible for a breach of such terms by your wholly and majority owned subsidiaries.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.
You agree to comply with all applicable Canadian, United States, and foreign export laws and regulations applicable to your use of the services or the materials provided to you under the Program. You agree that no data, information, program and/or materials resulting from such services or materials will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. |
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