Effective September 27, 2023.
These CIMcloud Partner Program General Terms and Conditions ("Partner General Terms"), together with any applicable document used to describe a partnership between CIMcloud and Partner (the "Partner Agreement") (the Partner Agreement with the Partner General Terms are the "Agreement") constitute a binding agreement between CIMcloud and Partner (each, a "Party" and collectively the "Parties").
The Agreement will become effective upon the execution of a CIMcloud Partner Agreement governed by these Partner General Terms.
Unless otherwise defined in the Agreement, capitalized terms have the following meanings:
"Affiliate" means an entity that controls, is controlled by or is under common control with a Party. For this definition, "control" means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
"CIMcloud" means Website Pipeline, Inc. DBA CIMcloud.
"CIMcloud Documentation" means CIMcloud's user guides, training manuals, online help materials, online support materials and other similar information, as updated or revised by CIMcloud from time to time.
"CIMcloud Product & Service" means all products and services offered by CIMcloud, including, without limitation, the CIMcloud platform, all CIMcloud tools and services used in the deployment, operation, and service of the CIMcloud platform, and other CIMcloud products and services.
"CIMcloud Technology" means the technology and Intellectual Property that CIMcloud uses to provide its products and services, including computer software programs, websites, networks, and equipment. CIMcloud Technology includes all CIMcloud Product & Service.
"Confidential Information" is defined in Section 5 (Confidential Information).
"End User" means a customer who purchases any CIMcloud Product & Service.
"Intellectual Property" means all trade secrets, patents and patent applications, Marks, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
"Invention" means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery, or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
"Leads" means complete and up-to-date contact details of third parties that express an interest, or may have an interest, in purchasing the CIMcloud Product & Services.
"Mark" means any trade names, trademarks, service marks, marks and logos owned by a Party (whether registered or unregistered and including any goodwill acquired in such trademarks).
"Payments" means the payments made by one Party to the other Party per the terms and conditions of any Program governed by a CIMcloud Partner Agreement entered into by the Partner and CIMcloud.
"Partner" means the Party who enters into a CIMcloud Partner Agreement with CIMcloud or participates in any Program.
"Program" means any CIMcloud Partner Program governed by this Agreement and entered into by the Partner as a Party to a CIMcloud Partner Agreement.
"Referred Client" means a new CIMcloud customer, other than the Partner, who purchases any CIMcloud Product & Service in accordance with the terms of a Program.
2. PROPRIETARY RIGHTS.
2.1. Partner's Intellectual Property.
2.1.1. Partner Marks. Subject to the terms of the Agreement, Partner grants to CIMcloud a limited, non-exclusive, non-transferable, revocable license to display Partner's Marks solely to market and promote the relationship contemplated by this Agreement.
2.2. CIMcloud's Intellectual Property.
2.2.1. CIMcloud Technology. CIMcloud retains and owns all right, title, and interest in all Intellectual Property rights in the CIMcloud Technology, the CIMcloud Product & Service, the CIMcloud Documentation, CIMcloud's Confidential Information, and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in the Agreement transfers to Partner any ownership interest in the CIMcloud Intellectual Property.
2.2.2. Restrictions. Partner shall market and support the use of the CIMcloud Product & Service by End Users only as set forth in the Agreement and the Documentation. Partner shall not (a) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the CIMcloud Technology; (b) reproduce, modify, create, or prepare derivative works of any of the CIMcloud Technology or Documentation; (c) except as permitted by this Agreement, distribute or display any of the CIMcloud Technology or Documentation; (d) share, sell, rent, lease, or otherwise distribute access to the CIMcloud Services, or use the CIMcloud Services to operate any timesharing, service bureau, or similar business; (e) alter, destroy, or otherwise remove any proprietary notices within the CIMcloud Technology or CIMcloud Documentation; or (f) disclose the results of any CIMcloud Product & Service or Program benchmark tests to any third parties without CIMcloud's prior written consent.
2.2.3. CIMcloud Marks and Marketing Activities. In conducting any marketing activities under a Program, Partner shall use only those marketing materials CIMcloud provides or approves in writing ("CIMcloud Assets"). Partner shall use the CIMcloud Assets and CIMcloud Marks in compliance with all guidelines CIMcloud provides. Partner shall not modify the CIMcloud Assets or CIMcloud Marks without CIMcloud's prior written approval. CIMcloud grants Partner a limited, non-exclusive, non-transferable, non-assignable, revocable right to display the CIMcloud Assets and CIMcloud Marks solely to fulfill its obligations under the Agreement. This right to use terminates automatically when the Agreement terminates. Notwithstanding the forgoing, CIMcloud retains all right, title, and interest in the CIMcloud Assets and CIMcloud Marks, and nothing in the Agreement confers any right of ownership in the CIMcloud Assets or CIMcloud Marks on Partner, and all use of them inures to CIMcloud's benefit.
2.3. Suggestions and Feedback. If the Partner provides CIMcloud with any suggested improvements to a Program, CIMcloud Assets, Intellectual Property, the CIMcloud Product & Service, or any other products or services of CIMcloud, then the Partner also grants CIMcloud a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements.
3. MODIFICATION. Except as may otherwise be provided in the Agreement and except for the rights set forth in Section 2.1 (Partner's Intellectual Property), CIMcloud will routinely modify this Agreement to reflect changes to the law or changes to the way, in CIMcloud's sole discretion, CIMcloud offers any Program. Except as may otherwise be provided in the Agreement, CIMcloud will post notice of modifications to this Agreement at https://www.cimcloud.com/legal/partner-general-terms. By continuing to participate in any Program governed by this Agreement after the modifications are in effect, Partner agrees to be bound by the revised terms of this Agreement. Partner should review the terms of this Agreement regularly.
4. TERM & TERMINATION.
4.1. Term. The term of the Agreement (the "Term") begins on the effective date of the first Partner Agreement the Partner enters into and ends on the date of termination or expiration of the final Partner Agreement.
4.2. Termination for Convenience. Either Party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.
4.3. Termination for Material Breach. Either Party may immediately terminate this Agreement for cause by giving written notice of termination to the other if the other Party breaches any of its material obligations under Agreement and does not cure the breach within 30 calendar days after the non-breaching Party gives written notice to the breaching Party.
4.4. Effects of Termination or Expiration. Except as otherwise provided in the Agreement, upon termination or expiration of this Agreement, (a) all rights and entitlements under the Agreement will immediately cease, (b) CIMcloud shall cease all use of Partner Marks, (c) Partner shall cease all use of the CIMcloud Marks and the CIMcloud Assets, (d) each Party will remain liable for all fees owed to the other Party; (e) upon request, each Party will immediately return or, if instructed, destroy the other Party's Confidential Information in its possession or control other than in automatic computer backups. A Party is not required to destroy or return any Confidential Information that must be retained for regulatory, legal, or audit purposes or for compliance with its document retention policies and has no obligation to destroy electronic copies made as part of its routine archival or backup procedures. All provisions that by their nature should survive termination will do so (including, for example, payment obligations, indemnification and defense obligations, and duties of confidentiality).
5. CONFIDENTIAL INFORMATION.
5.1. General. The Parties anticipate that each may disclose confidential information to the other. Accordingly, the Parties desire to establish in this Section 5 (Confidential Information) terms governing the use and protection of certain information one Party may disclose to the other Party.
5.2. Confidential Information. "Confidential Information" means any information disclosed by a Party to the other Party, either directly or indirectly, in writing, orally, or by inspection that (a) is designated as "Confidential," "Proprietary," or some similar designation or (b) by the nature of the information or the circumstances surrounding disclosure, would be reasonably understood as proprietary or confidential. Confidential Information does not include information (a) that is or becomes generally available to the public other than through the action of the receiving Party; (b) lawfully in the possession of the receiving Party at the time of disclosure without restriction on use or disclosure; (c) lawfully obtained by the receiving Party from a third party without restriction on use or disclosure or breach of such third party's obligations of confidentiality; or (d) independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information.
5.3. Disclosures Required by Law. If any applicable law, regulation, or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party's Confidential Information (a "Disclosure Order") then, unless otherwise prohibited by the Disclosure Order, the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure, in order to facilitate the disclosing Party's efforts to protect its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party's reasonable expense, in seeking and obtaining protection for the disclosing Party's Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing Party, the receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the receiving Party may disclose, without liability hereunder, that portion of the Confidential Information which is legally required to be disclosed and the receiving Party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
5.4. Restrictions on Use and Disclosure. Subject to the permitted disclosures set forth in Section 5.3 (Disclosures Required by Law), the receiving Party shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to third parties. The receiving Party may disclose Confidential Information to an employee, advisor, or consultant ("Representatives") who needs such access in order to fulfill a Party's obligations under these terms on the condition that the receiving Party: (a) ensures that such Representatives are bound by a written agreement that is as substantially protective as the Agreement; and (b) accepts full responsibility for its Representatives' use of the Confidential Information. The receiving Party shall protect Confidential Information from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information and refrain from reverse engineering, decompiling, or disassembling any Confidential Information.
5.5. Notice. Each Party will promptly notify the other Party, as reasonably practicable under the circumstances, not to exceed 72 hours from the time of confirmation, of unauthorized access, use, or disclosure of Confidential Information; each Party will reasonably cooperate with the other with respect to such unauthorized access, use, or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of security, a Party will modify its processes and security program as necessary to remediate the vulnerability or breach, at such Party's sole cost and expense.
6. LIMITATION OF LIABILITY.
6.1. General. The Parties acknowledge that the limitations set forth herein and integral to the ability of CIMcloud to offer any Program to the Partner and that, were CIMcloud to assume any further liability other than that as set forth herein, CIMcloud would not be able to offer such Program to the Partner. The immediately following paragraphs are intended to be independent of each other and the failure of the essential purpose of one shall not affect the other.
6.2. Disclaimer of Liability for Incidental and Consequential Damages. In no event shall either Party be liable to anyone for incidental, consequential, punitive, special or exemplary damages, or indirect damages of any type or kind including loss of revenue, profits, use or other economic advantage, arising from breach of warranty or breach of contract, or negligence, or any other legal cause of action arising from or in connection with this Agreement, even if that Party has been advised of the possibility thereof or is aware of the possibility of such damages.
6.3. Limitation of Liability for Direct Damages. The liability of either Party and any of its Affiliates to the other Party for direct damages or any other damages arising out of or in any way related to this Agreement, shall be limited to a total aggregate amount up to the lesser of (a) $2,500 or (b) the total Payments made either Party to the other in the three months preceding the time of the event.
6.4. Affiliates. The limitations of liability provided herein shall inure to the benefit of CIMcloud and the Partner respectively, and all each Party's Affiliates and to all the respective officers, directors, attorneys, employees and agents of CIMcloud and such other entities ("Limited Liability Parties"). The limitations of liability afforded each Party in this Agreement shall apply whether a Limited Liability Party is alleged to be liable jointly with one or more parties or otherwise.
6.5. Rights. This Section 6 (Limitation of Liability) does not confer any rights or remedies upon End Users or any other party but the Parties.
6.6. Sole Liability. This Section 6 (Limitation of Liability) states each Party's sole liability and the other Party's exclusive remedy with respect to claims.
7.1. Mutual Warranties. Each Party represents and warrants to the other Party that (a) it has the authority to enter into the Agreement and perform its obligations hereunder; (b) the Agreement does not conflict with any other agreement entered into by it; and (c) it does not conduct business for any unlawful purpose.
7.2. Partner Warranties. Partner represents and warrants that: (a) the information Partner provides in connection with any Program, including Leads and registration information of Referred Clients and their billing information is current, accurate, and complete; (b) to the extent Partner provides any Personal Information of data subjects protected by the GDPR or UK GDPR, Partner has the affirmative prior consent of the data subjects to provide such Personal Information to CIMcloud; (c) Partner will not engage in any unfair or deceptive marketing practices whether by statement, act, omission, or implication and will immediately cease all such marketing upon a written request from CIMcloud; and (d) any Leads or Referred Clients that Partner provides are not on the United States Department of Treasury, Office of Foreign Asset Control's list of Specially Designated National and Blocked Persons.
7.3. Disclaimer of Implied Warranties. CIMcloud disclaims all implied warranties, including without limitation, implied warranties arising from the trade usage, course of dealing, or course of performance and the implied warranties of merchantability and fitness for a particular purpose.
8.1. General. The Partner understands that this Section 9 (Arbitration) requires the Parties to arbitrate their disputes and limits the manner in which the Partner can seek relief from CIMcloud.
8.2. Process. For any dispute with CIMcloud, the Partner agrees to first contact CIMcloud in accordance with section 24 below (notices) and attempt to resolve the dispute with CIMcloud informally. In the unlikely event that CIMcloud has not been able to resolve a dispute it has with you after sixty (60) days, the Parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach of this Agreement (collectively, "Claims"), by binding arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Greenville, South Carolina. The arbitrator shall apply the laws of the state of South Carolina to all issues in dispute. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing CIMcloud from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our Intellectual Property rights or other proprietary rights.
9. CLASS ACTION/JURY TRIAL WAIVER. With respect to all persons and entities, all claims must be brought in the Parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless Parties agree otherwise, the arbitrator may not consolidate more than one person's claims. The Partner agrees that, by entering into this Agreement, the Partner and CIMcloud are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
10.1. Relationship of the Parties. The Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Partner's and CIMcloud's other business partners are independent of CIMcloud and are not CIMcloud's agents. Either Party may disclose any CIMcloud Partner Program terms that are publicly available and the existence of this Agreement. Each Party shall conduct its business in compliance with applicable laws.
10.2. Governing Law; Jurisdiction and Venue. This Agreement shall be construed under the laws of the State of South Carolina, without regard to its principles of conflicts of law. The parties agree that any action arising under or in connection with this Agreement shall be brought in the state or federal courts in Greenville County, South Carolina, and the Parties hereby waive any rights to assert jurisdiction or venue in any other court. Partner rights and obligations under this Agreement are not assignable without the prior written consent of CIMcloud. CIMcloud may assign its interest hereunder without Partner consent. The failure of either Party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their permitted assigns, any rights or remedies of any nature whatsoever by reason of this Agreement.
10.3. Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war (collectively, "Force Majeure Condition"). A Party seeking relief from performance under this Section 10.3 (Force Majeure) must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, the other Party may, in its discretion, terminate this Agreement. That termination will not result in any liability by either Party.
10.4. Notices. CIMcloud will communicate announcements of general interest by posting on its website or by email. Except as otherwise specified in the Agreement, CIMcloud will provide Partner with legal notices by email, mail, or courier to the address provided by Partner. Partner shall immediately notify CIMcloud if Partner's address for notice changes. Partner will provide CIMcloud with legal notices by mail or courier to the address on the CIMcloud Partner Agreement. Except as otherwise specified in the Agreement, all notices must be in writing.
10.5. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
10.6. Waiver. No waiver of any provision of the Agreement, nor consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver will be effective only in the specific instance and for the purpose for which given.
10.7. Entire Agreement. These Partner General Terms, together with the Partner Agreement and any terms of Partner Programs included by a Partner Agreement, and all other terms incorporated by reference, constitutes the entire agreement and understanding between the Parties.