Version 1.2 – (for later version see here)
This PARTNER AGREEMENT (this “Agreement”) is entered into as of the “Effective Date” in line with the signed online proposal and order document, between:
Alliantist Products & Services:
Organisation size and market sectors Territory:
General: Subject to the terms below The Partner may use Alliantist Products & Services for providing services to its end customers in the Scope outlined above.
This Agreement sets forth the terms and conditions under which Alliantist grants The Partner a limited license to use Alliantist Products & Services for providing Managed Services. The parties agree as follows:
1.1a “End Customer” means a third-party organisation for whom the Partner is providing Managed Services in accordance with this Agreement and the End Customer Terms and Conditions.
1.1b “End Customer Terms and Conditions” means the terms and conditions for End Customers at /about/terms-conditions/ which must be incorporated into The Partner’s Managed Services terms and conditions for End Customers.
1.2 “Documentation” means the user documentation, if any, furnished to The Partner by Alliantist about the Alliantist Products & Services.
1.3 “Intellectual Property” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, design rights, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any jurisdiction.
1.4 “Managed Services” means the overall services provided by The Partner to End Customers.
1.5 “Order” means the documented solutions, services & price impacting variables for Alliantist Products & Services that The Partner provides as part of the Managed Services into the End Customer.
1.6 “Territory” means the geographic, market sectors and organisation sizes specified in the Scope.
1.7 “Alliantist Marks” means the names of Alliantist Limited products and services, including ISMS.online, pam, Alliantist logos, partner programme logos and any text or graphical material incorporating such names or marks, service marks, trade names, indicia of origin or design marks Alliantist Limited provides from time to time.
1.8 “Alliantist Products & Services” means the software and complementary services described in the Scope, and any modified, updated, or enhanced versions of such service(s) or program(s) that Alliantist Limited may provide to The Partner pursuant to this Agreement.
1.9 “Scope” means the Alliantist Products & Services that The Partner can refer or resell with Managed Services into the Territory, with expressed the levels of exclusivity and support.
1.10 “Business Purpose” the use of Alliantist Products & Services for use by the End Customer as described in the Order and focused primarily towards describing and demonstrating its approaches Information Security Management and Data Protection.
1.11 “ISMS.online Partner Programme” The programme run by Alliantist for Partners to develop and grow their business with ISMS.online.
1.12 “Partner” A term used for marketing and sales based communications with no other obligations or commitments outside these terms and those expressed in the Partner Programme.
1.13 “Pricing and Payment model” the model and terms setting out the approach to ISMS.online pricing, referral and reseller discounting, along with payment terms.
1.14 “Support Policy” the policy detailing the support escalation and uptime expectations for ISMS.online.
2.1 License Grant. Subject to the terms and conditions of this Agreement, Alliantist grants to The partner a royalty-free, revocable, non-exclusive, non-transferable, nonsublicensable license to:
(a) use Alliantist Products & Services and Documentation as part of The Partner’s provision of Managed Services to End Customers based on the Order.
(b) use and demonstrate the most current version of Alliantist Products & Services, and Documentation made available to The Partner, for the purposes of conducting demonstrations to potential End Customers in the Territory.
2.2 Territory Restrictions. The Partner agrees that it will not: (a) engage in any advertising or promotional activities relating to the Alliantist Products & Services outside of the Territory; or (b) solicit orders from any prospective End Customers with a principal place of business located outside of the Territory. If The Partner receives an order from any End Customer with a principal place of business outside of the Territory, it will not automatically accept such order and will promptly notify Alliantist Limited to determine an appropriate resolution.
2.3 License Restrictions. The Partner acknowledges that Alliantist Products & Services
and their structure, design and organisation, source code and delivery model constitute valuable trade secrets of Alliantist Limited.
Accordingly The Partner agrees not to:
(a) modify, adapt, alter, translate, or create derivative works from the Alliantist Products & Services;
(b) merge the Alliantist Limited Products with other software or services (unless otherwise agreed in writing as part of an integrated offer);
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Alliantist Products & Services;
(d) knowingly permit any End Customers to do any of the foregoing; or
(e) use the Alliantist Products & Services for the provision of any services, other than the Managed Services, for the benefit of any third party.
The Partner and End Customers must not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Alliantist Limited on or within the Alliantist Products & Services and the Documentation, if any.
Existing and future worldwide rights in Intellectual Property therein and related thereto, are the exclusive property of Alliantist Limited. All rights in and to the Alliantist Products & Services, Alliantist Limited Marks, and Documentation not expressly granted to The Partner in this Agreement are reserved by Alliantist Limited. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Alliantist Limited’s Intellectual Property rights. The Partner will use its best efforts to assist Alliantist Limited in the protection of Alliantist Limited’s Intellectual Property rights in the Alliantist Products & Services. The Partner will cooperate fully with Alliantist Limited in any action or proceeding to enforce Alliantist Limited’s Intellectual Property rights in the Alliantist Products & Services. The Partner will promptly notify Alliantist Limited if The Partner becomes aware of any breach of any of Alliantist Limited’s Intellectual Property rights.
2.5 Trademark License. Subject to the terms and conditions of this Agreement, Alliantist Limited grants to The Partner a nonexclusive, non-transferable, non-sublicensable, revocable license to use and reproduce the Alliantist Limited Marks solely in connection with marketing the Managed Services in the Territory. Alliantist Limited grants no rights in the Alliantist Limited Marks other than those expressly granted in this Section 2.5. The Partner acknowledges Alliantist Limited’s exclusive ownership of the Alliantist Limited Marks. The Partner agrees not to take any action inconsistent with such ownership and to cooperate, at Alliantist Limited’s request and expense, in any action which Alliantist Limited deems necessary or desirable to establish or preserve Alliantist Limited’s exclusive rights in and to the Alliantist Limited Marks. The Partner will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Alliantist Limited Marks or in such a way as to create combination marks with the Alliantist Limited Marks. For the avoidance of doubt, The Partner will not be entitled to incorporate “Alliantist Limited” or ISMS.online” or versions that are similar into The Partner’s domain names without Alliantist Limited’s prior written approval. The Partner will use the Alliantist Limited Marks in accordance with such guidelines as Alliantist Limited may provide to The Partner from time to time. At Alliantist Limited’s request, The Partner will immediately modify or discontinue any use of the Alliantist Limited Marks.
2.6 Ownership of Alliantist Limited Products. Alliantist Products & Services, Alliantist Limited Marks, and Documentation, and all existing and future worldwide rights in Intellectual Property therein and related thereto, are the exclusive property of Alliantist Limited. All rights in and to the Alliantist Products & Services, Alliantist Limited Marks, and Documentation not expressly granted to The Partner in this Agreement are reserved by Alliantist Limited. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Alliantist Limited’s Intellectual
Property rights. The Partner will use its best efforts to assist Alliantist Limited in the protection of Alliantist Limited’s Intellectual Property rights in the Alliantist Limited Products. The Partner will cooperate fully with Alliantist Limited in any action or proceeding to enforce Alliantist Limited’s Intellectual Property rights in the Alliantist Limited Products. The Partner will promptly notify Alliantist Limited if MSP becomes aware of any breach of any of Alliantist Limited’s Intellectual Property rights.
2.7 Rights Reserved. Without limitation and notwithstanding any other provision of this Agreement, Alliantist Limited will continue to have the right, without incurring any liability or obligation to The Partner, in the sole discretion of Alliantist Limited, to:
(a) distribute the Alliantist Limited Products in the Territory;
(b) enter into a worldwide or territorial managed service provider agreement with another entity in the Territory; and
(c) grant other entities the right use the Alliantist Products & Services and Documentation as part of the provision of Managed Services to their own End Customers worldwide or in any territory, including within the Territory.
4.1 Reports and Records. At all times during the Term, and for at least one (1) year after any termination of this Agreement, the parties will maintain complete and accurate records of all data reasonably necessary for The Partner to demonstrate compliance, under this Agreement.
4.2 Audits. Alliantist Limited will have the right, at its expense, and no more often than annually unless it finds fault in earlier audits, upon fifteen (15) business days written notice and during The Partner’s normal business hours, to inspect and audit any portion of the books and records of The Partner that are relevant for the purpose of verifying The Partner’s compliance with this Agreement. In the event any material understatement (five percent (5%) or more) of payments due in connection with use of the Alliantist Products & Services hereunder is found, in addition to paying back the understated amounts at 110% of the expected selling price, The Partner will also pay Alliantist Limited’s reasonable costs of the audit.
5.1 Branding. The Partner will use the Alliantist Limited Marks to identify the Alliantist Products & Services in delivering the Managed Services, and in all materials used to market and promote the Managed Services in a manner acceptable to Alliantist Limited and subject to the limitations and requirements in Clause 2.5. The Partner will at all times conduct business in a manner that reflects favourably on Alliantist Products & Services and the good name, goodwill, and reputation of Alliantist Limited.
5.2 Publicity. Alliantist Limited and The Partner will communicate and cooperate with respect to advertising and publicity regarding this Agreement and their relationship, and each will obtain the written consent of the other before publishing or releasing any advertising or publicity.
5.3 Compliance with Laws. The Partner will at all times comply with all applicable laws and regulations in performing hereunder, including without limitation all laws related to the protection of End Customer information and/or personal data acquired by The Partner in the course of its provision of Managed Services.
6.1 Confidential Information. The parties agree and acknowledge that, as a result of negotiating, entering into and performing this Agreement, each party has and will have access to certain information regarding the business of the other party and its suppliers, including without limitation, technical, marketing, sales, financial, employee, planning, and other confidential or proprietary information, and information that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party (“Confidential Information”). Each party also understands and agrees that misuse and/or disclosure of that information could adversely affect the other party’s business. Accordingly, the parties agree that each party will use and reproduce the other party’s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party’s Confidential Information to its employees or agents with a need to know and will not disclose the other party’s Confidential Information to any third party without the prior written approval of the other party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party to the extent compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided the other party has been given prior written notice to permit such other party a reasonable opportunity to object to the judicial or governmental requirement to disclose. The provisions of this Section 6 will survive the expiration or termination of this Agreement. Each party acknowledges and agrees that violation of this Section 6.1 will cause the other party irreparable harm, and the total amount of monetary damages for any injury to such non-breaching party will be impossible to calculate and therefore an inadequate remedy. Accordingly, the non-breaching party may: (a) seek temporary and permanent injunctive relief against the other party; or (b) exercise any other rights and seek any other remedies to which such non-breaching party may be entitled at law, in equity and under this Agreement for any violation of this Section.
6.2 Return of Confidential Information. Both parties will promptly return to the other party all of the other’s Confidential Information in tangible form, including without limitation all copies thereof and photographs, videotapes, printouts, notes and working papers provided to it in connection therewith, including all such items, materials and information in its possession or control or in the possession or control of any person permitted access to the Confidential Information; provided, however, that the receiving party will be entitled, pursuant to the terms of this Agreement, to retain the Confidential Information, or copies thereof, to the extent required by applicable law or regulation, to establish the extent of disclosure of Confidential Information by the disclosing party or to the extent such Confidential Information is preserved pursuant to the receiving party’s automatic archiving and backup procedures related to electronic files. Alternatively, each party will certify in a writing signed by an authorized officer or representative that the foregoing have been destroyed and disposed of in a secure manner upon the expiration or termination of this Agreement.
7.1 Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorised and empowered to enter into this Agreement.
7.2 Alliantist Limited’s Warranties. Alliantist Limited warrants that the Alliantist Products & Services, when used as permitted under this Agreement, will operate in accordance with the Documentation. Alliantist Limited will, at its own expense and as its sole obligation and The Partner’s exclusive remedy for any breach of this Section 7.2, use commercially reasonable efforts to correct any reproducible error in the Alliantist Products & Services reported to Alliantist Limited by The Partner.
7.3 Disclaimer of Warranty. THE EXPRESS WARRANTIES IN SECTION 7.2 ARE IN LIEU OF ALL OTHER WARRANTIES BY ALLIANTIST LIMITED REGARDING ALLIANTIST PRODUCTS & SERVICES OR DOCUMENTATION, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ALLIANTIST LIMITED HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS SUPPLIERS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. ALLIANTIST LIMITED DOES NOT WARRANT THAT USE OF THE ALLIANTIST LIMITED PRODUCTS WILL BE ERRORFREE, UNINTERRUPTED, VIRUS-FREE OR SECURE. THE PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
7.4 Warranties Made by The Partner. The Partner will not make or publish any false or misleading representations, warranties, or guarantees concerning the Alliantist Products & Services that are inconsistent with any warranties made by Alliantist Limited concerning the Alliantist Products & Services.
will, at its option and expense, either: (a) procure for The Partner the right to continue exercising the rights licensed to The Partner in this Agreement; (b) replace or modify the Alliantist Products & Services or such Alliantist Limited Marks so that it becomes non-infringing; or (c) terminate this Agreement by written notice to The Partner, subject to Section 11.3. Notwithstanding the foregoing, Alliantist Limited will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon: (i) any unauthorized use, reproduction, or distribution of the Alliantist Products & Services by The Partner or any of The Partner’s End Customers; (ii) any use of the Alliantist Products & Services in combination with other products, equipment, software, or data not supplied by Alliantist Limited; (iii) any use, reproduction, or distribution of any release of the Alliantist Products & Services other than the most current release made available to The Partner; or (iv) any modification of the Alliantist Products & Services by any person other than Alliantist Limited. THIS SECTION 8 STATES ALLIANTIST LIMITED’S ENTIRE LIABILITY AND THE PARTNER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
10.1 Term. Unless earlier terminated pursuant to Section 10.2, the initial term of this Agreement will begin on the Effective Date and continue for a period of one (1) year. This Agreement will then automatically renew for one year terms, unless either party provides written notice of its intention to terminate at least ninety (90) days prior to the commencement of a renewal term. Alliantist Limited will have the right at any time to terminate this Agreement with or without cause upon forty-five (45) days prior written notice to The Partner.
10.2 Material Breach. Either party may terminate this Agreement immediately on written notice to the other party if the other party commits a material breach of this Agreement and fails to cure that breach within fifteen (15) days after receiving written notice from the other party stating the nature of the breach with reasonable particularity. Failure to pay fees when due will constitute a material breach.
10.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, all licenses, including without limitation the use license and related rights granted to The Partner will immediately revert back to Alliantist Limited, and The Partner must promptly discontinue all further use of Alliantist Limited Marks and all further use of the Alliantist Products & Services. Notwithstanding the foregoing, The Partner may continue to provide Managed Services pursuant to the terms of this Agreement for the remainder of the term associated with each Order by The Partner for End Customers. Notwithstanding any other section of this Agreement, the provisions of Sections 1, 2.2, 2.3, 2.5, 2.6, 6, 7.3, 9, 10.3 and 11 will survive any termination or expiration of this Agreement.
11.1 Export and Import Laws. The Partner will comply with all applicable export and import control laws and regulations in its use of the Alliantist Products & Services. The Partner will defend, indemnify, and hold harmless Alliantist Limited from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Alliantist Limited as a result of any violation of such laws or regulations by The Partner or any of its agents or employees.
11.2 Assignments. The Partner may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Alliantist Limited Products) to any third party without Alliantist Limited’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void and of no effect. Alliantist Limited may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party.
11.3 Notices. All notices, consents and approvals under this Agreement must be delivered and acknowledged by email to the designated Account Manager or by certified or registered mail to the other party at the trading address, and will be effective upon receipt or three (3) business days or after being acknowledged by the Account Manager, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
11.4 Disputes, Governing Law and language. This Agreement is governed by and shall be interpreted in accordance with English law. Both parties irrevocably agree that they shall collaboratively attempt to deal with any disputes in the first instance together then if necessary through dispute resolution, mediation and meeting outside the court process and thereafter the courts of England shall have non-exclusive jurisdiction to deal with disputes arising out of or about this Agreement.
11.5 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.6 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labour dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
11.8 Independent Contractors. The Partner’s relationship to Alliantist Limited is that of an independent contractor, and neither party is an agent or legal partner of the other. The Partner will not have, and will not represent to any third party that it has, any authority to act on behalf of Alliantist Limited other than through the provision of Managed Services with Alliantist Products & Services based on specific Orders.
11.9 Entire Agreement. This Agreement and the applicable Alliantist Limited End Customer license agreement, ISMS.online support policy, Pricing and Payment model, and ISMS.online Partner Programme conditions constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral. Notwithstanding the foregoing, the terms and conditions of this Agreement will prevail over any conflicting terms and conditions in such applicable Alliantist Limited End Customer agreements. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by The Partner to Alliantist Limited will have no effect.
Version number: 1.2
Last updated: 04/04/2018
These ‘Terms & Conditions for Partners’ are under review for GDPR and the evolving ISMS.online Partner Programme.