Partner Program

This Partner Program (the “Program”) supplements the applicable Order (“Order”) and the Subscription Agreement (“Agreement”) that the Partner (as defined in the Order) has previously agreed with Apptega, Inc. (“Apptega”).  The Program also includes the applicable Program Documentation and Partner Status level, both of which are defined below and incorporated herein by reference.  

1.    DEFINITIONS:
Definitions in the Order and Agreement are incorporated herein.  A capitalized term not otherwise defined shall have the following meaning:
1.1.    “Apptega Marks” means the names, trademarks, trade names, service marks, service names, logos and brands, or copyright or other proprietary notices, as amended from time to time, of Apptega.
1.2.    “End User” means the Partner’s customer that clicks to accept Apptega’s End User Terms defined below.  
1.3.    “Program Documentation” mean the then current partner qualification criteria, pricing, discount schedules, minimum license fees, minimum license requirements, and deal registration requirements for the Services based upon partnership level or any successor program as documented at the  Apptega Knowledgebase. The Program Documentation defines and confers applicable Partner Status.  Apptega may modify the Program Documentation. Interpretation and application of any program criteria will be in Apptega’s sole discretion.  
1.4.    “Partner” means a third-party reseller, distributor, Managed Service Provider, or other independent contractor that is eligible per the Program Documentation to resell the Services to End Users.  Partner includes any affiliates, resellers or distributors of Partner that are permitted by Apptega in writing to resell the Services.  Partner is liable for any acts or omissions of any affiliated Partner resellers or distributors and End Users.
1.5.    “Apptega  Management Console” shall mean the co-branded management console delivered to Partner   to create and manage End User accounts including trial licenses and End User subscriptions from a centralized system.
1.6.    “Partner Status” shall mean the level of partnership that the Partner has attained for the term of their Order   The initial Partner Status will be noted on the first Order.  Partner Status will be evaluated prior to any renewal Order based upon the Program Documentation and market conditions.
1.7.    “Territory” shall mean the geographic location(s) in which the Partner is able to license the Services.  For the purposes of this Program, the Territory shall be limited to selling to End Users with headquarters within the United States.

2.    APPOINTMENT
2.1.    Appointment. Apptega appoints Partner, during the Term, to be an authorized, non-exclusive partner for marketing, promoting, licensing and supporting the Services, in compliance and accordance with the Program. Partner agrees to ensure that each of its End Users and permitted distributors or sub-resellers (“Affiliates) comply with the terms and conditions of theProgram, Agreement and applicable Order(s). Apptega reserves the right to market, promote, license, provide, distribute, support and maintain, and to appoint other persons or entities to market, promote, license, provide, resell, distribute, support and maintain, the Services on a standalone basis or bundled with third party Services or services, directly or indirectly, in the Territory or anywhere else in the world, without any liability or obligation to Partner. For clarity, as used in this Program, the terms “purchase”, “sell”, “resell” and like terms refer to purchase or sale of a subscription license to use the Services and not to a purchase or sale of title to or ownership of any rights or other interests in the Services.
2.2.    Limited Licenses.
(a)    Services Licenses. Subject to compliance with the Program, and Order, Apptega grants to Partner a non-exclusive, non-transferable, non-sublicensable revocable and limited license within the Territory:
(i)     to use the Services solely to demonstrate, market and promote the Services to a prospective End User located in the Territory with such demonstration licenses to be capped at 25 Users;
(ii)    to license the Services to End Users in the Territory solely for such End Users’ own internal business use pursuant to the Program;
(iii)    to provide support services for the Services to an End User that has licensed the Services pursuant to the Program; and
(iv)    to market, promote and resell the Services to a prospective End User solely for such End User’s own internal business use pursuant to the  Program.
(b)    Trademark Licenses. Subject to compliance with this Program, Apptega grants to Partner a non-exclusive, non-transferable, non-sublicensable, revocable and limited license within the Territory to solely use the Apptega Marks solely in connection with the marketing, promotion, license and support of the Services pursuant to this Program.   All good will associated with use of the Apptega Marks inures to the benefit of Apptega.
2.3.    End Users.
Partner’s End Users will click to accept the End User Terms  upon initial login.  A copy of the End User Terms is available in the Apptega Knowledgebase.
2.4.    Program Restrictions. Partner agrees to protect Apptega’s rights in and to the Services in the same manner as it uses to protect its own products, services, confidential or proprietary information or rights, and to comply with the following, and to require its Affiliates to comply with the following:
(a)    Proprietary Notices. Partner will not permit any third party to remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on or in the Services, or add any other markings or notices to the Services.
(b)    Use Obligations. Partner
(i)    will access and use the Services in accordance with this Program,
(ii)    will not use the Services or permit the Services to be used to perform any file or data storage or other services for any third party, except by the End User for its own internal business use pursuant to n End User Terms,
(iii)    will not upload or permit the Services to be used to upload any data that
(1)    infringes the intellectual property rights or other proprietary rights of any third party,
(2)    is unlawful or objectionable material or
(3)    contains viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots,
(iv)    will not use or permit the use of any software, hardware, application or process that
(1)    interferes with the Services,
(2)    interferes with or disrupts servers, systems or networks connected to the Services, or violates the regulations, policies, or procedures of such servers, systems or networks,
(3)    accesses or attempts to access another End User’s accounts, servers, systems or networks without authorization, or
(4)    harasses or interferes with another End User’s use and enjoyment of the Services, and
(v)    will not tamper with or breach the security of the Services.
(c)    No Modifications. Partner will not, and will not permit any third party to, modify, port, adapt, translate or create any derivative work based upon, the Services.
(d)    No Reverse Engineering. Partner will not permit any third party to, reverse engineer, decompile, disassemble or otherwise derive or attempt to derive the source code of the Services, except for any non-waivable right to decompile any software expressly permitted by applicable mandatory law.
(e)    No Transfer. Except by a End User to exercise its limited licenses for its own internal business use pursuant to a Subscription or End User Agreement, the End User, Partner will not permit any third party to, copy, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, use or offer the Services on a service bureau basis, deliver or otherwise transfer the Services, in whole or in part.

3.    Partner Obligations
3.1.    Resources and Knowledge. Partner and their respective personnel will make best effort to be conversant with the technical language conventional to the Services and similar Services in general, and will develop sufficient knowledge of the industry in which Apptega competes (including specifications, functionality, features and capabilities) so as to be able to explain in detail to actual and prospective End Users the differences between the Services and competitive services.
3.2.    Business Practices. Partner will
(a)    conduct business in a manner that reflects favorably at all times on Apptega, and the Services, and the good name, goodwill and reputation of Apptega,
(b)    avoid any deceptive, misleading or unethical practices that are or might be detrimental to Apptega, and/or the Services,
(c)    not make any false or misleading representations with regard to Apptega and/or the Services,
(d)    not make representations, warranties or guarantees of any kind to prospective or actual End Users with respect to the specifications, functionality, features or capabilities of the Services.
3.3.    Program Documentation. Partner agrees to comply with the Program Documentation including the Apptega Partner Deal Registration Requirements set forth in the Program Documentation. In addition, Partner agrees to require its Affiliates to comply with the applicable provisions of the Program Documentation, which shall include the Apptega Partner Deal Registration Requirements.
3.4.    Costs and Expenses. Except as expressly set forth in this Program or agreed in writing by the parties, Partner will pay all costs and expenses incurred in connection with the performance of this Program by Partner and its Affiliates.
3.5.    End User Support.  Partners acting as Resellers will be responsible for Tier 1 support and will also work with the Apptega support teams to ensure the End Users are being provided adequate support for Tiers 2, 3 and 4 level support.  The support tiers are defined in the Apptega Knowledgebase.  If a Reseller is not providing Tier 1 support, this must be documented in the applicable Order(s) and Partner Status may be impacted.

4.    Fees; Ordering; Payments
4.1.    One Time Setup Fees. If applicable, Partner agrees to pay fees associated with the initial setup or training to initiate the deployment and or address additional educational needs of the Partner and End User.
4.2.    Program Fees. If applicable, partner agrees to pay the program fees, which cover program administration, training expenses, and Services updates and upgrades.
4.3.    License Fees. Any licenses of the Services including the Minimum License Fee Requirements described in the Partner Documentation, are due and payable by Partner Net 30 days from Apptega’s invoice date or in accordance with the Order payment terms. The Program Fees, the minimum license fees outlined in the Apptega Partner Price List and Commitments, the Services’ license fees and any other fees payable direct to Apptega pursuant to this Program (collectively, the “Fees”) are based on the Services licensed and not on actual usage by End Users. All payment obligations are non-cancellable, and all Fees paid to Apptega are non-refundable except as expressly set forth in this Program and refer to the amounts received by Apptega.
4.4.    Credit Establishment. Apptega may require Partner to provide company, financial, credit and any other reasonable information to allow Apptega to establish credit for Partner. Apptega may cancel or suspend credit to Partner at any time, in its sole discretion.
4.5.    Prices and Price Changes. Partner and its Affiliates may license the Services, obtain support and maintenance from Apptega, in each case solely for an End User’s own internal business use pursuant to the applicable Margin as defined in the Program Documentation.  Any discounts outside those defined in the Program Documentation must be accepted in writing by an authorized representative of Apptega.   Apptega may modify prices, discounts and any other terms of the Apptega Partner Price List from time to time without advance notice.  If Apptega increases its list prices, all Services delivered on or after the effective date of such increase will be at the new higher price, except that Apptega will honor all accepted Orders that were received prior to notice of the price increase at the prices in effect at the time the order was received. Apptega will protect Partner and its Affiliates from price increases for outstanding End User price quotations for up to 30 days provided that Partner or its Affiliate, as applicable, gives written notification of such quotes (including a copy of the End User quotation) within 10 days after the effective date of the new price. If Apptega decreases its list prices, equitable price protection mechanisms will be implemented in accordance with the Program Documentation. Each of Partner and its Affiliates are free to establish the pricing it charges its Customers for the Services.
4.6.    Ordering. Partner may order Services for licensing by its End Users by submitting an Order to Apptega in similar manner to that used in the Initial Order, either manually or through API. Each Order must
(a)    reference this Program,
(b)    specify
(i)    the Services being ordered, including for each Services, the Services name, SKU, description and quantity,
(ii)    the price of each Services, and any additional charges and costs,
(iii)    the name and principal location of the End User for which the Services are being ordered,
(iv)    the billing address,
(v)    the requested delivery date(s),
(vi)    End User’s Number of Employees and
(vii)    any other information reasonably required by Apptega, and
(c)    be signed by an authorized representative of Partner.  Once requested within the Apptega Managed Service Provider Management Console or via an Order with the requisite information, the Order will be accepted via initiating a new End User request that will trigger invoicing. Any terms and conditions contained in any Oder that is in addition to, inconsistent or in conflict with, or different than, this Program will be deemed stricken from such Order. The provisions of the form of purchase order or other business forms of Partner or its Affiliates will not apply to any order notwithstanding Apptega’s acknowledgment or acceptance of such order.
4.7.    Acceptance. No order will be deemed accepted by Apptega unless and until Apptega accepts an Order or New Account creation via the Apptega MSP Management Console. Apptega shall acknowledge Orders or New Account creation from Partner and its Affiliates within seven days after receipt. A “Clean Order” is required, such that the Order
(a)    complies with the order requirements set forth in Section 4.6 and
(b)    contains payment advice from Partner. Apptega’s acknowledgment shall detail any exceptions, if any, along with the expected delivery date(s). If an order is placed through the Apptega MSP Management Console, Partner deems the order accepted. Such order shall become a non-cancelable commitment upon Apptega’s receipt and return email confirmation.
4.8.    Invoicing and Payment. Partner agrees to pay Apptega directly all Fees for Services per the Agreement and applicable Order. Partner shall at all times remain obligated to make payments to Apptega regardless as to if or when Partner or its Affiliate receives payment from the applicable End User. Unless otherwise agreed by Apptega in writing, Partner will pay all Fees by wire transfer to a bank account designated by Apptega; provided, however, that if any such wire transfer tendered by Partner is returned for insufficient funds or dishonored in any way for any reason, even without fault of Partner, upon written notice to Partner, Apptega may require that payment be made by wire transfer with an assessed fee of 1.5% of the payment. In addition, all invoices that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid, or the account is delinquent. Apptega may accept payment in any amount without prejudice to its right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction. Partner will reimburse Apptega for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by Apptega in connection with collecting any overdue amounts.
4.9.    Delivery. Apptega will use commercially reasonable efforts to provide electronic delivery of the Services within 1 business day of the new End User account being provisioned in the Apptega Managed Service Provider Console or by delivery date(s) specified in each Order accepted by Apptega pursuant to this Program.
4.10.    No Set-Off. Partner will not set off or offset the Fees with amounts that Partner or any Partner Affiliate claims are due it. Partner and its Affiliates will bring any claims or causes of action it may have in a separate action and waives any right they may have to offset, setoff or withhold payment for the Services pursuant to this Program.

5.    Relationship
Partner’s relationship with Apptega is that of an independent contractor. Each party does not have, and will not represent that it has, any power, right or authority to bind the other party or the other party’s Affiliates, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or the other party’s Affiliates.  The use of the term “Partner” herein is for advertising and marketing purposes only.
5.1.    Fees. Upon expiration or termination of this Program, Partner will pay Apptega directly or through the distributor any unpaid amounts that are owed to Apptega. Upon termination of this Program based upon a breach of Partner or an Affiliate of Partner (following any applicable cure period), Partner will pay Apptega any unpaid amounts that are owed to Apptega and that would have been paid to Apptega for the remainder of the then-current term of this Program absent early termination of this Program, without limiting Apptega’s other rights and remedies. Upon termination of this Program based upon Apptega’s breach (following any applicable cure period , Apptega will refund Partner any amounts pre-paid by Partner or its Affiliates to Apptega for use of the Services after the effective date of this Program’s termination .
5.2.    Effect. The parties agree that the rights of End Users to use the Services in accordance with the  Program entered into prior to the expiration or termination of this Program shall not be affected by such expiration or termination. Immediately upon expiration or termination of this Program,
(a)    
(i)    the license rights granted by Apptega to Partner pursuant to this Program and any license rights sublicensed by Partner will cease and
(ii)    the right of Partner to use the Services pursuant to this Program will terminate,
(b)    Partner will cease marketing and promoting the Services,
(c)    Partner will cease using the Apptega Marks,
(d)    each party will promptly return to the other party all of the other party’s Confidential Information within the possession or control of such party,
(e)    Partner will return to Apptega all marketing and promotional materials for the Services in the possession or control of Partner within five days of the expiration or termination of this Program, and
(f)    each party will certify in writing that it has complied with such obligations; provided, however, that if agreed in writing by Apptega, Partner shall not be required to destroy or return the materials to the extent necessary for Partner to service and support End Users following such expiration or termination in accordance with the Program entered into prior to such expiration or termination until such service and support are transferred.
5.3.    Post-Expiration or Termination End User Service and Support. Partner will, at its expense, cooperate with Apptega and take such actions as reasonably requested by Apptega to ensure a smooth and efficient transfer of End Users and the related business, including the transfer of the Program and the ongoing service and support of End Users, to Apptega, an affiliate of Apptega or a designee that Apptega selects, and to notify End Users in writing regarding such transfer, including the requirement to pay license fees for the Services directly to Apptega, an affiliate of Apptega or a designee that Apptega selects. As soon as practicable but no later than five days following expiration or termination of this Program, Partner will provide Apptega in writing:
(a)    the End User Licensing Information, and
(b)    any open support issues regarding the Services. Additionally, Partner will make the primary sales and support personnel of Partner  available to meet with Apptega representatives, and in connection therewith, Partner and its  shall instruct such personnel to fully cooperate in good faith with Apptega’s representatives at such meetings, and to fully and accurately answer all questions relevant to effecting a smooth and efficient transfer of End Users and the related business.
5.4.    No Damages For Expiration or Termination. PARTNER WAIVES ON BEHALF OF ITSELF AND ITS AFFILIATES RIGHT ANY OF THEM MAY HAVE TO RECEIVE ANY COMPENSATION OR DAMAGES ON EXPIRATION OR TERMINATION OF THIS PROGRAM UNDER ANY APPLICABLE LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS PROGRAM, EXCEPT FOR A TERMINATION OF THIS PROGRAM BY PARTNER DUE TO AN UNCURED BREACH BY APPTEGA. Notwithstanding anything in this Program to the contrary, Apptega will not be liable to Partner or its Affiliates on account of expiration or termination of this Program for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by Partner or its Affiliates for any other reason whatsoever based upon or growing out of such expiration or termination. Partner acknowledges that
(a)    each of Partner and its Affiliates has no expectation and has received no assurances that any investment in the marketing, promotion, licensing and provision of the Services will be recovered or recouped or that such person or entity will obtain any anticipated amount of profits by virtue of this Program, and
(b)    Partner will not have or acquire by virtue of this Program or otherwise any vested, proprietary or other right in the marketing, promotion, licensing and provision of the Services or in the “goodwill” created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR APPTEGA TO ENTER INTO THIS PROGRAM AND THAT APPTEGA WOULD NOT HAVE ENTERED INTO THIS PROGRAM BUT FOR THE LIMITATIONS SET FORTH IN THIS SECTION.
5.5.    Survival. Sections 2.4, 3.2, 3.4, 4, 5, and 6, will survive any expiration or termination of this Program.

6.    General
6.1.    Entire Program; Amendment; Waiver. This Program, the applicable Order(s) and the Agreement are the parties’ entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or programs. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Program will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a End User’s purchase order or other End User documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) this Program, and (3) the Agreement.
6.2.    Publicity.  Apptega may use the name and logo of, or refer to Partner or End User in sales presentations, client lists, news releases or website.

Last updated: 07/01/2023