Vilkår og betingelser for henvisning og forhandling
Certain capitalised terms used in this Agreement shall have the meaning assigned to them where defined, and the terms defined in this Section 1 shall have the following meaning:
Account(s): means a Customer instance providing for use of a Service by such Customer’s employees and other authorised users.
Affiliate(s): means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise.
Associated Services: means products, services, features and functionality designed by Planday to be used in conjunction with the Service but not included in the Service Plan to which a Customer subscribes.
Confidential Information: means information that is proprietary or confidential and is either clearly labelled as such or is otherwise identified as Confidential Information, whether such Confidential Information is confidential or proprietary to either Party, a Customer or End User
Content: means all content, in any form or format, created and uploaded into any Services by Customers and End Users.
Contract(s): means one of more agreements among You and Customers that initiate or renew subscriptions to access and use the Services, on terms consistent with this Agreement, and consistent with and incorporating the Reseller Terms (including addendums to the Reseller Terms as relevant for the sale of Associated Services). For the purposes of this Agreement, any renewal of a subscription for an existing Customer shall be deemed a new Contract.
Customer(s): means Your customers who are physically located in the Territory and acquire subscriptions to one or more Services directly from You for their internal business purposes under Contracts and not for licensing, sublicensing, sale, resale, rent, lease, transfer, distribution of the Services or similar purposes. The term “Customer(s)” as used herein shall not include any Persons subscribing to the Services or any portion thereof through any other channel.
Customer Information: means the customer identifying information and Service Subscription information provided in a Lead Form.
Documentation: means the written or electronic documentation, images, video and text specifying the functionalities of the Services made available to You, or End-Users; provided, however, that Documentation shall specifically exclude any “community moderated” forums related to the Services.
End User(s): means Persons with whom Your Customers transact using the Services.
Intellectual Property Rights: means patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Laws: means any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Lead Form: means a web form completed by Partner in respect of each Customer and sent to Planday, which form shall include all relevant Customer information relating to such Customer’s subscription as may reasonably be required by Planday from time to time.
Master Subscription Agreement: means the agreement between Planday and its subscribers, as may be amended by Planday from time to time in accordance with its terms and as set out in Schedule 2 to this Agreement.
Open Source Code: means software available in source code and licensed under any open source license which allows licensees to copy, modify and redistribute source code.
Partner Customer(s): mean Customer(s) of whom Planday has no prior record of activating the applicable Service (either through a trial or paid subscription to such Service) and whose information is not, at the time reported to Planday by Partner in accordance with Section 2.5 below, shown in Planday’s or its Affiliate’s customer business records to be a prospect which has engaged or undertaken activity with Planday or its Affiliates with respect to any Service within the six months prior to such referral.
Partner Data: means all data and other materials, including marketing materials, instructions, documentation, technical information and information involving Customers and End Users generated, gathered and used by You in offering and providing the Services.
Partner Portal: means the partner onboarding and management portal service provided by Planday, including, individually and collectively, all corresponding software and any documentation.
Partner Services: means other products and services that You offer to Customers, which may be combined with the Services.
Partner Technology: means technology (including software (including Open Source Code), hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) owned and/or used by You in providing the Partner Services.
Person: means an individual, corporation, association, joint venture, partnership, limited liability company, estate, trust, unincorporated organization and any other entity or organization, governmental or otherwise.
Planday Data: means any data and other materials supplied or made available to You by Planday or an Affiliate of Planday, including but not limited to Documentation and information describing Planday Technology.
Planday Technology: means the Services and all of Planday’s and its Affiliate’s technology (including, without limitation, software, hardware, products, processes, algorithms, user interfaces, know- how, techniques, designs and other tangible or intangible technical material or information) owned by Planday, or an Affiliate of Planday, and/or used in providing the Services, and subsequent updates or upgrades of any of the foregoing.
Primary Currency: means the primary currency for which Fees are charged by Planday in the Territory or such other currency agreed to in writing by Planday and You.
Program Guide: means the documentation made available to You from time to time in the Partner Portal or otherwise that is labelled as a Program Guide and details the fees, benefits and requirements of the Program as applicable to You and the current version of which is hereby incorporated into this Agreement at Schedule 1.
Reseller Terms: means the terms and conditions set out in this Agreement.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Planday portal applicable to the Service) to which a Customer subscribes.
Term: is the timeframe described in Section 10.
Territory: means all the countries and/or territories where Partner may resell the Services as agreed by the Parties in writing (email sufficing).
2. PROGRAM PARTICIPATION
2.1 Appointment. Subject to all terms and conditions set out in this Agreement (including the Program Guide), Planday hereby:
2.1.1 Appoints You to the Program (and You hereby accept such appointment), as a permitted reseller of subscriptions to the Services.
2.1.2 Grants You a limited, non-exclusive, terminable right as a member of the Program, to resell subscriptions to access and use the Services in the Territory during the Term, alone or in combination with Partner Services as contemplated herein.
Your appointment under this Section 2.1 only grants You a licence to resell subscriptions to the Services and does not transfer to You or to a Customer any right, title or interest to any of the Services.
2.2 Compliance. As a participant in the Program, You expressly agree to comply at all times with the Program requirements in this Agreement, and with Planday’s guidelines and guidance to Partners participating in the Program from time to time, including but not limited to the rights granted herein, communications, designs, content, attribution, Intellectual Property Rights, and all other aspects of Services access, distribution and resale. You shall not represent Yourself as an agent of Planday for any purpose, nor pledge Planday’s credit or give any condition or warranty or make any representation on Planday’s behalf or commit Planday to any contracts other than as contemplated herein. Further, You shall not without Planday’s express prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Services which are inconsistent with those contained in the promotional material supplied by Planday (including the Master Subscription Agreement) or otherwise incur any liability on behalf of Planday howsoever arising.
2.3 Program Overview. Your appointment to the Program and licence allow you to:
2.3.1 Market and offer subscriptions to the Services listed in the Program Guide to potential Customers as a standalone service or together with Partner Services, solely for such Customers’ access and use of the Services for their own internal business purposes and otherwise in accordance with the Reseller Terms, and not for license, sublicense, sale, resale, rent, lease, transfer, distribution or other purposes.
2.3.2 Charge Customers for resale of the Services only under Contracts consistent with and incorporating the Reseller Terms in all respects, and otherwise entered into in compliance with Section 3 and other applicable provisions of this Agreement; provided that Planday may reject any potential or actual Customer at its sole discretion at any time.
2.3.3 Access the Services for demonstration or evaluation purposes.
2.3.4 Manage the contractual relationship with Customers during the Term with respect to the Services, including Service subscription renewals and expansions.
2.3.5 Receive the Program benefits applicable to Your Partner status as set out in the Program Guide.
2.3.6 Participate in the Planday Referral Program (“Referral Program”) pursuant to the Planday Referral Program Agreement (“Referral Agreement”). The Parties activities in connection with the Referral Program shall be governed exclusively by the Referral Agreement and any agreement referenced therein (e.g. fees, payment, authorized activities, etc.). The Parties shall evidence their entering into the Referral Agreement by clicking through and accepting this Agreement.
2.4 Your Obligations. You undertake and agree with Planday to:
2.4.1 use all reasonable efforts to market, promote and sell the Services to potential Customers in the Territory, and to do so in cooperation with Planday. You are responsible for creating any required marketing materials at Your own cost and expense, in accordance with this Agreement and the Program Guide.
2.4.2 only resell the Services under Contracts as approved by Planday at its discretion and in compliance with the provisions of Section 3.
2.4.3 report to Planday any Contract within five (5) business days of entering into such Contract with a Customer, which report shall include the Lead Form. You will keep physical copies of all such Contracts, maintain records of the lifecycle of all such Contracts, and provide copies of the foregoing records to Planday upon request. During the Term of each Contract, You agree to update Lead Form information as necessary in accordance with changes to each Customer’s status and use of the Services.
2.4.4 not make any unauthorized, false, misleading or illegal statements concerning this Agreement, Customers, Planday or the Services.
2.4.5 not solicit or resell the Services in violation of this Agreement or the Reseller Terms, including but not limited to sale to a Person engaged in illegal activities or deceptive business practices under applicable Laws.
2.4.6 not share, or allow any Customer or any other Person to share a single user’s login information among multiple Persons, except as expressly permitted under the Reseller Terms.
2.4.7 not provide access to any Account or Account information to any Person unless specifically requested by the Customer subscribing to such Account.
2.4.8 not seek to obtain access to any Account without the express prior written consent of the Customer subscribing to such Account.
2.4.9 not solicit any business from, or sell Services to, any Person that does not have a principal place of business within the Territory. A Person’s principal place of business will be determined by the place from which that Person maintains its main corporate offices and manages its business.
2.4.10 not present Yourself as the owner of the Services or any Planday Data, or otherwise create, through Partner Data or any other medium, an impression of any relationship among You and Planday or the Services other than the reseller relationship as established in this Agreement.
2.4.11 not copy, edit, modify, adapt, store, translate or reproduce the Services, Planday Data, or any portion thereof (except as permitted in this Agreement and the Program Guide).
2.4.12 not reverse engineer, disassemble or decompile the Services or any component thereof, or otherwise attempt to discover or disclose the source code of the Planday Technology or any component thereof.
2.4.13 not integrate any Partner Technology with Planday Technology (including, but not limited to Open Source Code), without the prior written consent of Planday.
2.4.14 not remove, obscure, or alter any notice of Intellectual Property Rights present on or in the Services or any component thereof, except as explicitly permitted by this Agreement and/or the Program Guide, including for the avoidance of doubt amending or varying the terms of the Master Services Agreement.
2.4.15 not authorise or permit any Affiliate or other Person to do any of the foregoing.
2.5 Compliance with Laws and Regulations.
2.5.1 You shall be responsible for obtaining any import licences or permits necessary for the entry of the Services or their delivery to You, and You shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Services.
2.5.2 You warrant to Planday that you have informed it of all Laws affecting the manufacture and sale of the Services which are in force in the Territory or any part of it (“Local Regulations”) at the date of this Agreement.
2.5.3 You shall give Planday as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
2.5.4 On receipt of notification from you under Section 2.5.3 above, Planday shall have a right to elect to terminate this Agreement or to work together with you to endeavour to ensure that the Services comply with any change in the Local Regulations by the date of implementation of that change or as soon as is reasonably possible thereafter.
2.6 Partner Customer Registration. As soon as practicable following Your identification of a prospective Partner Customer, You shall report such prospective Partner Customer to Planday by clearly designating such Customer as a prospective Partner Customer, which reporting format will include, without limitation, the Lead Form information. Following delivery of such report, Planday shall, in good faith, determine whether any such prospective Partner Customer meets the definition of a Partner Customer. Any prospective Partner Customer so confirmed by Planday as meeting such definition will be deemed a “Registered Partner Customer” for the purposes of this Agreement. Planday agrees to use commercially reasonable efforts to confirm whether a prospective Partner Customer identified by You is deemed a Registered Partner Customer within thirty (30) days of Your submission of the report contemplated herein.
2.7 Contract Assignment. You shall inform Planday immediately of any change in Your ownership or control and of any change in Your organisation or method of doing business which might affect the performance of your duties under this Agreement. If and when this Agreement is terminated for any reason You hereby agree to assign, upon the request of Planday, within thirty (30) business days of such termination, all or any portion of Your Contracts as requested by Planday to Planday or an Affiliate of Planday to the extent such Contracts govern the provision of Services to Customers. You further agree to fully assist Planday in all material respects to secure a seamless, continued business relationship between Planday and such Customers.
2.8 Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance.
2.9 Feedback. From time to time You may provide Planday, independently or upon Planday’s request, verbal and/or written suggestions, comments or other feedback related to the Services, including, without limitations, design input and/or troubleshooting or other assistance provided in response to support requests (“Feedback”). You agree to make reasonable efforts to provide Feedback to Planday as appropriate under the circumstances in each case. You hereby assign to Planday all right, title and interest in and to such Feedback. All Feedback is provided “AS IS,” and You make no warranties whatsoever about any Feedback.
3. RESERVED RIGHTS
Planday and its Affiliates expressly reserve the right to market and provide the Services in the Territory, themselves or through any other Person, and You shall not be entitled to any commission, compensation or other rights whatsoever in relation to such marketing or provision of the Services.
4. SUPPLY OF SERVICES
4.1 Planday will provide You reasonable means to commission the Services to Customers upon Your reselling of Services to approved Customers and receipt by Planday of Reseller Fees. Thereafter, Planday shall use all commercially reasonable efforts to provide the Services to Customers pursuant to the Reseller Terms and the Documentation, including, without limitations, support service commensurate with support levels provided to other customers based in each case on the Services plan licensed by such customer. Planday and its Affiliates may access Customers’ account information in order to provide support services.
4.2 All Customers subscribing to one or more Services through You shall first enter Contracts with You, which Contracts shall be consistent with and incorporate the applicable Reseller Terms in all respects. Such Contracts shall, without limitation (a) clearly present You as a non-owner reseller of the Services; (b) reference this Agreement as the contract allowing You to resell the applicable Services; (c) appoint Planday as a third party beneficiary of such Contracts; (d) reflect Your and the Customers’ rights and obligations under such Contracts in relation to the applicable Services, as detailed in this Agreement; (e) ensure that Customers are aware of and accept the terms and conditions of the Master Subscription Agreement before using the Services; and (f) clearly provide that if and when this Agreement is terminated for any reason whatsoever such Contracts may be assigned to Planday, and following such assignment the Master Subscription Agreement shall become the only binding legal document governing the provision of Services by Planday to Customers. For the avoidance of doubt, the resale of Associated Services may be subject to addendums to the Reseller Terms. In the event You resell any such Associated Services, You agree to pass along such addendums in the Contracts as additional provisions of the Reseller Terms.
4.3 Services Provisioning. Upon receiving all relevant Customer Information in a Lead Form, as required for commission of the applicable Services and the corresponding Reseller Fees as contemplated herein, Planday will activate the applicable Services in accordance with the specifications You provide and provide the applicable Services or as applicable cause the applicable Services to be provided to Customers as detailed in the Reseller Terms and Documentation; provided that any trial period (as described in the Documentation) commissioned by Planday to Customers for use of the applicable Services shall be limited to no more than the allowed time period with respect to the applicable Services (as communicated to Partner) and shall only be provided to new prospective Partner Customers.
4.4 Liability to Customers. Planday will not be responsible or liable to You for any claims relating to Customers or End Users’ use of the Services, or to Your collection, knowledge or, maintenance and/or handling of Customer Information and/or Content. You agree to disclaim in Your Contracts, to the full extent permitted by applicable Laws, Planday’s and its Affiliate’s liability for any damages, whether direct, indirect, incidental or consequential, arising out of Your distribution and reselling of the Services under Your Contracts or their use of the Services pursuant to such Contracts.
4.5 Enforcement of Your Contracts. You agree to use all best efforts to enforce Your Contracts. To the extent You fail to enforce Your Contracts, You agree that Planday may fulfill Your obligations or assume Your rights as a third party beneficiary, in which case You will provide Planday with all necessary assistance to do the same and reimburse Planday for any costs and expenses actually incurred by Planday in connection with enforcing its rights under Your Contracts.
4.6 Customer Information and Content. You understand and agree that Planday and its Affiliates may access Customer Information and Content in the normal course of business as the operator of the Services (as more specifically detailed in the appropriate Reseller Terms). Planday will have no responsibility or liability for the deletion or loss by You, Customers, End Users or any other non-Planday Person of any messages, Customer Information, End Users’ data or Content or other communications or other content maintained or transmitted to or from You, and You hereby agree to indemnify and hold Planday and its Affiliates harmless from and against any and all liabilities, losses, damages, costs and expenses arising out of or relating to the deletion or loss of such data by You or any such Customers, End Users or any Person other than Planday and its Affiliates.
5. MODIFICATION, DISCONTINUATION OF SERVICES
5.1 Planday reserves the right to modify the Services, the Planday Technology, the Master Subscription Agreement and the Reseller Terms at its sole discretion at any time. Planday shall provide You with ten (10) days prior notice with respect to any material modifications of the foregoing.
5.2 Following such notice You may terminate this Agreement and Your participation in the Program based on such material modifications by providing Planday with not less than thirty (30) days written notice, in which case the termination shall become effective at the earlier of the entry into effect of such modification or the termination date indicated in Your notice. Upon such termination of this Agreement, You shall pay Planday the balance of any Reseller Fees owed to Planday under any Contracts entered into between You and Customers prior to the date of such termination.
5.3 Unless You provide notice to Planday in writing within thirty (30) days after being given notice of such material modification, You will be deemed to have agreed to the modification without any further obligation or liability of Planday to You.
6. MARKETING COMMITMENT
6.1 You agree to use all reasonable efforts to market and promote the Services, and to solicit and obtain orders from potential Customers for the Services, in the Territory. In determining the manner and method You pursue in discharging this undertaking You shall take account of any policies established from time to time by Planday for use by its Partners.
6.2 In reselling the Services alone or within Partner Services, at all times You will ensure clear reference to Planday in accordance with the guidelines communicated to You by Planday from time to time.
6.3 You agree that you shall:
6.3.1 conduct Your business in a manner that reflects favourably at all times on Planday and the good name, goodwill and reputation of Planday and shall not enter into any contract or engage in any practice that is or may be detrimental to the interests of Planday; and
6.3.2 avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Planday, the Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Planday or the Services.
6.4 Upon execution of this Agreement, and in consideration for making the Services available to You under this Agreement, You agree to allow Planday to publicly refer to you as a member of the Program in accordance with this Agreement.
6.5 You will not issue any press release or other public announcement regarding the existence or content of this Agreement, the relations contemplated herein or the Services, without Planday’s prior written approval.
6.6 You agree that you will work together with Planday from time to time on joint business plans to market the Services in the Territory on terms to be agreed in good faith between the Parties. Such business plans and terms shall be reviewed on a six monthly basis and the Parties agree that they shall work together in good faith to agree any new plans and terms.
7. DUTY OF LOYALTY
You hereby acknowledge and agree that in the course of the relations contemplated herein You will gain significant information about the Services, Customers, Planday Data and other sensitive business information about Planday, its business and the Services (much of which being Confidential Information). Therefore, during the Term and for twelve (12) months thereafter, You further agree not, nor shall any of Your Affiliates, employees, directly, or indirectly or in partnership with any Person solicit or obtain orders for or offers to buy, or attempt to develop, purchase, sell, offer to sell, sell or promote, any Person’s services competitive with the Services. The foregoing limitation will not apply to third parties unaffiliated to You that You engage to assist You in performing Your duties under this Agreement, nor will it apply to any of Your employees to the extent such limitation is illegal under the Laws where such employees are employed.
8. SECURITY PROCEDURES
The Parties shall each use commercially reasonable efforts to safeguard and maintain the integrity of Customer Information, End User data and Content in their possession and/or under their control. Such efforts shall include the development and implementation of commercially reasonable technical, administrative and physical measures to protect such data from unpermitted disclosure. The Parties agree that (a) such security procedures constitute reasonable procedures to protect the integrity of such data from unauthorized access; and (b) the state of the art does not permit the development of electronic security systems that are completely free of failures.
9. ACCOUNT PASSWORDS
Planday and its Affiliates will not be liable to You or any other Person for Your or Your Customers’ failure to maintain the confidentiality of their password for the Services and You agree to hold Planday and its Affiliates harmless from any claims arising from loss or misuse of passwords by You or Your Customers. You agree immediately to notify Planday of any unauthorised use of the Services that comes to Your attention.
10. INTEGRATION ACTIVITIES
Except where agreed in writing signed by both Parties, in no event shall Planday be required to modify the Services and/or Planday Technology in any way to incorporate any work product of Yours or a third party or otherwise modify or adapt the Services for use with any hardware, application, technology, systems or tools provided by any entity other than Planday or its Affiliates.
11.1 Reseller Fees. Upon receipt from You of a relevant signed service order, Planday will charge You the fees indicated to You in the Program Guide (“Reseller Fees”). Reseller Fees will be further detailed in the Program Guide. Planday reserves the right to change the Fees at its discretion.
11.2 If you fail to make any payment due to Planday under this agreement by the due date for payment the, without limiting Planday’s remedies under Section 13, You shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. You shall pay the interest together with the overdue amount.
11.3 Fees charged to Customers. You may only resell the Services to Customers for actual Services provided (excluding any trial use of the Services by Customers as made available by Planday). Planday shall invoice You Reseller Fees for each Customer upon receiving a signed service order applicable to such Customer, as requested by You under an applicable Contract (and any renewal thereof). Invoices shall be due and payable within 30 days of their date. All Reseller Fees shall be paid, unless otherwise agreed by the Parties in writing, by wire transfer. Reseller Fees may only be paid by Reseller in the currency in which they were invoiced under the initial service order under this Agreement unless otherwise agreed by Planday in writing (email sufficing).
11.4 Non-Payment. Without limiting any other remedies available to it, Planday reserves the right to suspend or terminate the Services to any Customer if You fail to pay the Reseller Fees (or portion thereof) associated with the Services provided to such Customer in violation of this Section 11 within thirty (30) days of invoice.
11.4.1 You agree to fully indemnify Planday and hold Planday and its Affiliates harmless from and against any and all liabilities, losses, damages, costs and expenses arising out of or in relation to any third party claim due to such termination or suspension of the Services.
11.4.2 Planday and its Affiliates may negotiate and enter into a direct relationship and contract for subscription to the Services if You fail to pay Reseller Fees attributable to such Customer in a timely manner. In the event that Planday enters into any such relationship, you shall not be entitled to any compensation with respect to such Customer’s subscription to or use of the Services.
11.5 Taxes. You shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Services.
11.6 No Set-Off; No Refunds. All amounts due to Planday under this Agreement shall be paid by You to Planday in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Specifically, You will not set-off or offset against Reseller Fees owed by You amounts that You claim are due to You by Planday or any amounts resulting from any billing or collection dispute between You and a Customer. No refunds or credits for Reseller Fees or other fees or payments will be provided to You if You or any Customer elects to terminate any subscription or close or cancel any Account prior to the end of the then effective Subscription Term or if Planday or its Affiliates suspends or terminates such subscription or Account pursuant to its rights under this Agreement or the Reseller Terms.
11.7 Currency Control. You represent and warrant that, as of the Effective Date of this Agreement, no currency control Laws applicable in the Territory or other applicable countries where You conduct the activities under the Agreement prevent the payment to Planday of any sums due under this Agreement.
12.1 Audit Rights. You agree to create and to maintain during the Term and for two (2) years after the termination of this Agreement, sufficient books, records and accounts to confirm information about Your Contracts, Customer Information, fees collected from or charged to Customers with respect to the Services, as reasonably necessary to evidence all Your activities as a Partner. Upon reasonable notice to You and during normal business hours, Planday may audit such books, records and accounts to verify such activities, including on-site examination of such books and records.
12.2 Penalties. Planday’s costs of such inspection will be borne by Planday unless it shows a shortfall exceeding five percent (5%) in respect of any period to which the inspection relates between the amount actually paid by You and the amount due to be paid by You, in which event (without affecting or prejudicing any other rights Planday may have) You will pay in full Planday’s costs (which for the avoidance of doubt will include any reasonable costs of Planday’s nominee in carrying out the inspection) together with the amount of the shortfall, within 14 days of the date of Planday’s invoice for such costs and/or shortfall.
If any such examination discloses a material violation of any of the terms of this Agreement, You hereby agree that Planday shall be entitled, in addition to any other remedies, to be reimbursed by You for any underpayments made under this Agreement, as well as all of Planday’s audit costs and liquidated damages equal to five (5%) percent of the Reseller Fees paid to Planday under this Agreement.
13. TERM AND TERMINATION
13.1 Term. This Agreement shall become effective on the Effective Date and remain in full force for one year (“Initial Term”) and any number of Successive Terms (as defined below), unless earlier terminated during the Initial Term or any Successive Term in accordance with the termination provisions below (such Initial Term and any number of Successive Terms, the “Term”).
13.2 Successive Terms. Unless either Party shall have provided not less than 30 days prior notice to the other Party of its intent to terminate this Agreement as of the end of the then effective Term, following the Initial Term and each Successive Term, this Agreement shall be renewed automatically for a term (each such successive renewal term, a “Successive Term”) of (a) one (1) year or (b) if shorter, the duration of the Initial Term.
13.3.1 Either Party may terminate this Agreement by providing the other Party a written termination notice, if the other Party commits a material breach of this Agreement and fails to correct such breach within thirty (30) days of receiving a written breach notice specifying the breach. Either party may terminate this Agreement immediately upon notice of a breach that is not capable of being cured within such thirty (30) day period. Notwithstanding anything else to the contrary, it is expressly understood and agreed by the Parties that any non-payment of Reseller Fees shall be considered a material breach of this Agreement.
13.3.2 Either Party may terminate this agreement without cause upon ninety (90) days’ written notice to the other Party.
13.3.3 Either Party may terminate this Agreement immediately if, under applicable Law, the other Party is liquidated, commences dissolution proceedings, fails to continue business, assigns its assets and/or business to the benefit of creditors, or otherwise becomes the subject of bankruptcy or similar proceeding.
13.3.4 In addition to any other suspension or termination rights in this Agreement, Planday may also suspend Your (or any Customer’s) access and/or use of the Services, or terminate this Agreement immediately upon written notice to You if (a) Your, or any Customer or End User’s use of the Services violates any Laws, (or gives Planday a reason to believe such violation has occurred or is imminent), as determined in Planday’s sole discretion; (b) there is an unusual spike or increase in Your use of the Services (alone or as used by Customers) causing Planday to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Services; or (c) Planday determines, in its reasonable discretion, that its provision of any of the Services is prohibited by any Laws, or has become impractical or unfeasible for any legal or regulatory reason.
13.4 Effect of Termination.
13.4.1 Upon termination of this Agreement (a) all rights and licenses granted to You hereunder shall immediately cease and You shall return or destroy all Confidential Information of any other Person in your possession or control; (b) within thirty (30) days You shall, at the request of Planday, assign all or any portion of the Contracts relating to the Services to Planday or an Affiliate of Planday, as further detailed in Section 2.7 herein; (c) within thirty (30) days of any termination You shall pay all Reseller Fees due for Services provided to Customer during any part of the Term; and (d) You shall, upon Planday’s written request, deliver a certificate signed by Your executive officer attesting to compliance with the foregoing.
13.4.2 Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve any obligation to pay all fees that have accrued or are otherwise owed under this Agreement.
13.4.3 Notwithstanding termination, the provisions of this Agreement shall survive the expiration or earlier termination of this Agreement to the extent necessary to affect their intent and operation with respect to the Parties relations hereunder.
14. CONFIDENTIAL INFORMATION
14.1 Each party may have access to Confidential Information of the other party under this Agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
14.2 Subject to Section 14.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
14.3 Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
14.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 14.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
14.5 This Section 14 shall survive termination of this Agreement for any reason.
14.6 Notwithstanding the foregoing, the Parties agree and acknowledge that Planday’s compliance with Section 8 with respect to Customer Information, End Users’ data and Content shall be deemed compliance with its obligations under this Section.
15. PROTECTION AND PROCESSING OF PERSONAL DATA
15.1 Each party shall comply with its respective obligations under the provisions of the Data Protection Act 1998 (the “Act”) and references in this section to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.
15.2 Where You or any of Your sub-contractors, as part of the fulfilment of your obligations under this Agreement, processes personal data as a data processor on behalf of Planday acting as a data controller:
(a) You shall, and shall procure that Your sub-contractors shall:
(i) act only on instructions from Planday when processing personal data provided to You under this agreement and keep records of all such processing;
(ii) comply with Planday’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by Planday;
(iii) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(iv) not transfer any personal data outside the European Economic Area without Planday’s prior written consent; and
(v) immediately notify Planday (or You, as applicable) if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this Agreement, provide full co-operation and assistance in relation to any such complaint, notice or communication.
(b) Planday may from time to time serve You with an information notice requiring You, within such time and in such form as is specified in the information notice, to give to Planday such information as Planday may reasonably require relating to:
(i) compliance by You or by Your sub-contractors with Your obligations to Planday under this Agreement in connection with the processing of personal data; and
(ii) the rights of data subjects, including but not limited to subject access rights.
(c) You shall provide to Planday on request a copy of all personal data held by You pursuant to this Agreement, in the format and on the media reasonably specified by Planday, and shall promptly inform Planday if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. You will restore such data at your own expense.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 Ownership of Intellectual Property Rights. As between the Parties, Planday retains all right, title and interest, including without limitation all Intellectual Property Rights to the Services, Marks, Planday Technology, and all modifications, enhancements, and other works deriving from the foregoing. Except for the limited rights granted to You under this Agreement, no right, title or interest is granted, express or implied, to You hereunder to any of the foregoing. You agree to not, at any time, during the Term or following termination of this Agreement, contest or aid others in contesting or doing anything which impairs the rights, title or interest in or validity of any of Planday’s proprietary or Intellectual Property Rights to the Services, the Planday Technology, Marks, or modifications, enhancements and other derivative works of the foregoing, or Planday’s Confidential Information.
16.2 Planday makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Services nor as to whether the same infringe on any Intellectual Property Rights of third parties.
16.3 Trademark License; Trademark Use.
16.3.1 Planday hereby grants You a limited, non-exclusive, revocable, personal and non transferable right (subject to the terms and conditions of this Agreement and during the Term and solely for the purposes of performing Your obligatios under this Agreement) to use certain of Planday’s logos, service marks and trademarks associated with the Services (“Marks,” as listed in the Program Guide, and as may be amended by Planday from time to time), solely to promote, market, advertise and resell the Services within the Territory to Customers pursuant to this Agreement.
16.3.2 You agree not to contest the validity or ownership of any Marks, or take any action in derogation of any Mark or the other registered or unregistered service marks or trademarks of Planday, including without limitation, adopting any commercial mark, applying to register any trademark, trade name, domain name, service mark or other designation that is confusingly similar to any Mark or the other registered or unregistered service marks or trademarks or domain name of Planday.
16.3.3 You shall ensure that each reference to, and use of, any of the Marks by You is in a manner approved from time to time by Planday and accompanied by an acknowledgement in a form approved by Planday that the same is a trade mark (or registered trade mark) of Planday. You will further ensure that proper trademark notices are displayed at all times in association with the Marks, including, but not limited to any such use or display on Your web site or in implementing this Section 16.
16.3.4 If you elect to post a website to promote Your business, You agree that such website (a) should be readily distinguishable by a Customer as Your website (and not Planday’s); (b) should make clear that You are a separate and distinct entity from Planday; and (c) will not copy design features of Planday’s websites or otherwise infringe any Planday Intellectual Property Rights.
16.3.5 You shall not:
(a) use any of the Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Planday therein;
(b) use in relation to the Services any trade marks other than the Marks without obtaining the prior written consent of Planday; or
(c) use any trade marks or trade names so resembling any trade mark or trade names of Planday as to be likely to cause confusion or deception.
16.4 Other than the licences expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, You shall have no rights in respect of any trade names or trade marks used by Planday in relation to the Services or their associated goodwill, and You hereby acknowledge that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Planday.
16.5 At Planday’s request, You shall do or procure to be done all such further acts and things (including the execution of documents) as Planday shall reasonably require to give Planday the full benefit of this Agreement.
16.6 You shall promptly give notice in writing to Planday in the event that You become aware of:
(a) any infringement or suspected infringement of the Marks or any other Intellectual Property Rights in or relating to the Services; and
(b) any claim that any Services or the manufacture, use, sale or other disposal of any Services, whether or not under the Marks, infringes the rights of any third party.
17. WARRANTIES AND INDEMNITIES
17.1 Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licences referred to in this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all applicable Laws in the performance of its obligations under this Agreement.
17.2 The services are provided “as is” and Planday makes no warranties, express or implied, or any representations to You or any Customer regarding the usability, condition, operation or fitness of the Services. Planday does not warrant that Your or any Customers’ access to or use of the Services shall be uninterrupted or error-free, or that it will meet any particular criteria of performance or quality. Planday expressly disclaims all warranties, including, without limitation the implied warranties of merchantability, title, fitness for a particular purpose, non- infringement, compatibility, security or accuracy . This disclaimer of warranty and liability is expressly made in addition to any disclaimers made by Planday under the Reseller Terms with respect to the Services as applicable to Your provision of the Services to Customers and such Customers’ use of the Services.
17.3 The Parties agree that the indemnities specified herein are the only remedy under this Agreement for any third party claims arising out of this Agreement.
17.4 Indemnification by You. You will indemnify, defend and hold Planday and its Affiliates harmless from and against all liabilities, damages or costs (including settlement costs and reasonable attorneys’ fees)(collectively, “Costs”) arising out of any third party’s allegations, threats, claims and/or actions (collectively, “Claims”) brought against Planday or its Affiliates due to:
(a) Your activities or breach under this Agreement,
(b) Your breach of any Contract, or
(c) Your operation of or access to any Account, Your activity within the Services with respect to any Account, or Your operation of or access to any Account, Your activity within the Services with respect to any Account, or Your operation, sale, or distribution of a Partner Services;
(a) Planday shall promptly notify You in writing of any such Claim,
(b) You will have the authority to defend and/or settle such Claim (provided that you will not settle any Claim without Planday’s consent unless it completely eliminates any liability attributed to Planday), and
(c) Planday shall reasonably cooperate with You in connection with such Claims; and provided further that Planday may at its choice participate in the defence of such Claims at its own expense.
17.5 Indemnification by Planday. Planday will, subject to Section 18, indemnify, defend and hold You harmless from and against all Costs arising out of any Claim brought against You by a Customer arising out of such Customer’s rights under the Reseller Terms PROVIDED THAT:
(a) You promptly notify Planday in writing of any such claim,
(b) Planday will have the sole and exclusive authority to defend and/or settle such claim (but Planday will not settle any Claim without Your consent unless it completely eliminates any liability attributed to You), and
(c) You reasonably cooperate with Planday in connection with such Claim; and provided further that Planday and its Affiliates shall have no obligation or liability under this Section arising from use of the Marks, Services or Planday Technology in violation of this Agreement or the Master Subscription Agreement, or in combination with materials or technologies not furnished by Planday or its Affiliates.
18. LIMITATION OF LIABILITY
18.1 To the maximum extent permitted by applicable law, in no event shall either Party or its Affiliates be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any indirect damages (such as special, incidental, indirect or consequential damages, including without limitation, damages or loss of business profits or anticipated savings, business interruption or loss, loss of information, or any other pecuniary or consequential pure economic loss, costs, damages, charges or expenses), loss of use, loss or corruption of data or information resulting from any claims, demands or actions arising out of this Agreement.
18.2 Except as provided in section 18.3 below, Planday’s and its Affiliates aggregate liability hereunder shall not cumulatively exceed the amount of Reseller Fees paid by You under this Agreement during the twelve (12) months preceding the alleged events giving rise to liability.
18.3 Planday’s and its Affiliates liability with respect to its indemnification obligations set forth in section 17.5 shall not exceed the maximum liability to which Planday would be subject pursuant to a claim made by a Customer against Planday pursuant to the Reseller Terms, including any limitations of liability set forth therein.
19.1 Anti-Bribery. You shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place throughout the term of this Agreement Your own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and Section 19.1(b), and will enforce them where appropriate;
(d) promptly report to Planday any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of this Agreement;
(e) immediately notify Planday (in writing) if a foreign public official becomes an officer or employee of You AND/OR acquires a direct or indirect interest in You (and You warrant that You have no foreign public officials as officers or employees AND/OR direct or indirect owners at the date of this Agreement);
(f) within 3 months of the date of this Agreement, and annually thereafter, certify to Planday in writing signed by an officer of You, compliance with this Section 19 by You and all persons associated with You and all other persons for whom You are responsible under Section 19.1(c). You shall provide such supporting evidence of compliance as Planday may reasonably request.
19.2 Export Compliance. Each Party agrees that it shall comply with all applicable import and export laws, rules and regulations with respect to the transfer of any of the Services pursuant to the terms of this Agreement. Without limitation to the generality of the foregoing, You acknowledge and agree that You will comply strictly with all laws and regulations of the United States, including the Export Administration Regulations (“U.S. Export Regulations”). If requested by Planday, You agree to sign written assurances and other export-related documents as may be required for You to comply with U.S. Export Regulations. For the avoidance of doubt, compliance with the trade laws of other countries pertaining to the release, transfer, making available, exportation, importion, use, or distribution of the Services to Customers and End Users is Your sole responsibility.
19.3 Assignment. This Agreement may not be assigned by a Party thereto without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Planday may assign this Agreement without Your prior consent to its Affiliate, or in connection with the sale, merger or other corporate combination involving all or substantially all of the assets of Planday, provided the assignee agrees in writing to assume all of Planday’s obligations and liabilities hereunder.
19.4 Binding on Successors. This Agreement shall endure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
19.5 Severability/Waiver. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
19.6 Waiver of Breach. No delay or omission by either Party to exercise any right or power arising upon the other Party’s non-performance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of non-performance or breach.
19.7 Force Majeure. Except for the obligation to make payments, performance under this Agreement shall be postponed automatically to the extent that either Party is prevented from meeting its obligations by causes beyond its reasonable control, including but not limited to natural disasters, fire, governmental acts, labour disputes or failure of suppliers, provided that a force majeure event affecting a Party’s performance under this Agreement for thirty (30) or more days shall entitle the other Party to terminate this Agreement and receive any refund, or due or unused Reseller Fees, as the case may be.
19.8 Notices. All notices in connection with this Agreement shall be delivered in writing to the persons and addresses detailed in the Program Guide, and such notices shall be deemed delivered after three (3) working days of delivery by registered post or courier or, if delivered by email with return receipt, upon receipt acknowledgement.
19.9 No Agency. The Parties acknowledge that each is an independent contractor and nothing herein constitutes a joint venture or partnership. You have no right to vary any policies, conditions, representations or warranties made by Planday, and neither Party has the right to bind or act for the other as agent or in any capacity except as expressly provided in writing by amendment to this Agreement. The relationship under this Agreement shall not create any legal partnership, franchise relationship or other form of legal association between the Parties that would impose a liability between the Parties or to third parties.
19.10 Entire Agreement. This Agreement, including all schedules and attachments thereto, contains the complete and exclusive statement of the agreement between the Parties with respect to the subject matter herein. The terms and conditions of this Agreement shall prevail over any service order submitted by You. Any changes or amendments to this Agreement must be in writing expressly referring to the changes to this Agreement, and be duly executed by both Parties.
19.11 Counterparts. This Agreement may be signed in counterparts and delivered by facsimile or electronic mail, each of which shall be considered an original document, but together which shall constitute one complete document.
19.12 Master VAR/Distributor. The Parties agree that Planday may in the future choose to transition You to a Master VAR/Distributor. Such modification of the relationship shall be done in accordance with Section 19.3 above.
19.13 Governing Law and Jurisdiction. Before bringing any action under this Agreement, the Parties agree to first make a reasonable effort to negotiate and resolve misunderstandings or disputes by escalating the same to their respective executives for timely consideration. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes of claims) shall be governed by and construed, interpreted and enforced in accordance with the laws of England and Wales. The Parties irrevocably submit to the exclusive jurisdiction of the courts of England.