This Partner Program Resale Agreement (“Agreement”) is made by and between AvePoint UK, Ltd., having a principal place of business at Watchmaker Court, 33 St John’s Lane, London, EC1M 4BJ (“AvePoint”) including where appropriate or applicable its Affiliates, and your company or entity, as identified in the signature block below (“Reseller”). Each of AvePoint and Reseller are referred to as a “Party” and collectively as the “Parties.” The Agreement consists of the terms and conditions set forth below, any exhibits, addenda, or appendices identified below, and any Orders that reference this Agreement. This Agreement is effective immediately upon the earlier of: (1) submission of an Order, or (2) accepting these terms by clicking a box indicating your acceptance of the Agreement where prompted to do so on an AvePoint website, or access or delivery of the Solution, whichever occurs first (the “EffectiveDate”).
To the extent that there exists a previously negotiated Partner Program Resale Agreement or similarly negotiated resale agreement between the Parties that is currently in effect at the time of this Agreement’s Effective Date (“Prior Negotiated Agreement”), the provisions of any such Prior Negotiated Agreement shall control unless expressly provided otherwise in such other agreement.
In consideration of the foregoing and of the mutual promises contained in this Agreement, AvePoint and Reseller agree as follows:
1. PURPOSE.
AvePoint has developed and is the owner of an extensive platform of software products, services, SAAS Solutions, documentation, and related information including the associated intellectual property rights. Reseller desires to obtain from AvePoint the rights and licences granted herein for purposes of engaging in the marketing of various software programs and technical solutions that consist of, use, or incorporate the software products, documentation, SaaS Solutions, services and related information owned by AvePoint. Reseller may additionally or alternatively desire to purchase certain of AvePoint’s Solutions for use with its own Managed Services Clients. AvePoint is willing to grant such rights and licences subject to the terms and conditions of this Agreement, including Exhibit B hereof.
2. OBLIGATIONS OF RESELLER.
2.1 Appointment of Reseller.
AvePoint appoints Reseller, and Reseller accepts such appointment, as a non-exclusive reseller to market, promote, and/or sell the Solutions to End-Users located within the Territory, in accordance with and subject to the terms and conditions set forth in this Agreement. For the avoidance of doubt, any sale or provisioning of Solutions to another reseller or a third-party who is not an End-User is not permitted without prior written approval by AvePoint, and only then if Reseller has entered into a lawful and enforceable contract binding such other reseller or third party to materially the same restrictions as set out in Section 6.2 and Section 10.1 below. The foregoing appointment authorises Reseller to purchase Solutions either directly from AvePoint or through a Distributor for resale to Reseller’s own customers either (i) on their own as individual Solutions or (ii) as part of a complete technical solution. Except for manipulation or integration of AvePoint source code, Reseller may bundle or combine the Solutions with Reseller’s own products or third-party products but is prohibited from creating or developing any Derivative Works or providing technical support services to End-Users except as provided for in Section 2.4. Reseller shall not market, promote, or sell the Solutions to End-Users not located within the Territory or to End-Users located in the Territory for delivery outside the Territory, without AvePoint’s prior written consent. In addition, subject to the terms and conditions of the MSLSA and MSP Amendment, Reseller shall be entitled to purchase and use certain of AvePoint’s subscription-based Solutions to use for its own Managed Services Clients.
2.2 Promotion and Marketing.
Reseller shall use its best efforts, actively and in good faith, to promote and market the Solutions in the Territory, with the goal of acquiring new customers and increasing revenue of existing customers. Reseller agrees to work in good faith with AvePoint to develop joint marketing plans specifically identifying the market opportunities, prospective customer opportunities, marketing, advertising, and promotional activities, as are necessary or appropriate to increase sales of the Solutions in the Territory.
2.3 General Performance Standards.
Reseller shall perform its obligations hereunder in good faith and with promptness and diligence in a professional manner, using employees and representatives who are properly educated, trained, and fully qualified for the tasks they are to perform. Reseller shall conduct its business in a fair, lawful, and ethical manner, reflecting favourably upon the Solutions and the reputation, goodwill, image, and credibility of AvePoint. Reseller shall abide by any and all written policies or guidelines of AvePoint.
2.4 Technical Support.
AvePoint shall assume and properly discharge responsibility for all Support Services for applicable Solutions provided to End-Users by Reseller subject to the support terms as set out in the MSLSA. Notwithstanding the foregoing, when reselling a Solution, Reseller shall be entitled to provide Tier-1 Support to End-Users upon having completed the required level of training as mutually agreed between AvePoint and Reseller. Reseller agrees to notify AvePoint immediately upon receiving a request from an End-User for any Support Services other than Tier-1 for any Product.
2.5 Training.
Reseller agrees to timely participation and completion of the AvePoint partner training, including initial sales, technical, and compliance training curriculum (the “Initial Session”). AvePoint shall be responsible for training Reseller and its representatives at this session and at subsequent time periods, as provided in Section 3.2. Reseller agrees to strictly adhere to AvePoint’s Partner Program Terms, including employee training and certification corresponding to its applicable program and pricing discount levels.
2.6 Reseller Program Representatives.
Reseller shall appoint and maintain at all times a program representative and departmental contacts, who shall be the main contact persons for issues surrounding the implementation and performance of this Agreement and who shall act as liaisons with the AvePoint Program Manager. Such contacts shall be subject to approval by AvePoint, which approval shall not be unreasonably withheld. Based on reasonable grounds, AvePoint may require Reseller to provide a different program representative.
2.7 Privacy.
When collecting and using Personal Data about AvePoint’s End-Users or Distributors, Reseller will operate in full compliance with applicable privacy and data protection laws and regulations. Reseller will gather the required consent to share such Personal Data with AvePoint and its Affiliates, for the purposes of End-User relationship management, support obligations, data analytics, marketing, and promotions. When receiving Personal Data from AvePoint, Reseller will use it in compliance with all applicable privacy and data protection laws and regulations, including anti-spam and direct marketing rules, in accordance with AvePoint’s instructions, and for the sole purpose of promoting the Solutions. Upon the termination of this Agreement for any reason, or if AvePoint determines that Reseller no longer requires access to the Personal Data to perform its obligations, Reseller shall return to AvePoint, or shall destroy, as AvePoint shall specify, all copies of all such Personal Data in Reseller's possession. Within five (5) calendar days thereafter, Reseller shall provide AvePoint with a certificate, executed by an officer of Reseller, confirming that all copies of all such Personal Data have been returned to AvePoint or destroyed, in accordance with this Section 2.6.
2.8 Expenses.
Except as expressly provided herein, Reseller shall bear and assume all costs and expenses arising from its performance of its obligations under this Agreement, including, without limitation, expenses for hiring and training personnel, facilities, work space, utilities, management, clerical or reproduction services, supplies, travel expenses such as transportation, accommodations, and meals, and advertising, marketing, and promotion of the Solutions.
3. OBLIGATIONS OF AVEPOINT.
3.1 Promotional Materials.
AvePoint shall provide Reseller with electronic files for the production of Promotional Materials subject to the terms and conditions of this Agreement. If Reseller chooses to produce additional promotional and advertising materials relating to the Solutions, Reseller shall upon request submit all such materials to AvePoint for its approval and production of such materials shall be at Reseller’s cost. AvePoint’s written approval of any such materials shall be obtained prior to use, distribution, or display of such materials. AvePoint shall have sole discretion whether to approve such materials.
3.2 Training.
The Initial Session shall be via the AvePoint Partner Portal or as mutually agreed upon after execution of this Agreement. AvePoint shall provide training videos and certification exams on the AvePoint Partner Portal. AvePoint shall provide additional training if requested via electronic means, both live and recorded, at its sole discretion. Should Reseller require onsite or specialised training, Reseller shall pay for such training at AvePoint’s standard rates, as provided by AvePoint on an official price quote at the time of request. In addition, Reseller shall bear and assume all costs and expenses relating to such training, including, without limitation, expenses for facilities, and travel expenses such as transportation, accommodations, and meals. The duration, location, and other aspects of the Initial Session and any additional training, as well as the number of Reseller employees to be trained, shall be determined by mutual agreement.
3.3 Product Developments.
AvePoint shall keep Reseller reasonably informed about developments concerning the Solutions that may be useful to Reseller in the performance of this Agreement. AvePoint shall have the sole right to modify, alter, change, enhance, improve, or discontinue any or all of the Solutions at any time. In the event Reseller does not find the modified, altered, changed, enhanced, or improved Solutions to be acceptable, Reseller may terminate this Agreement pursuant to Section 11.2.
3.4 Programs.
AvePoint, in its sole discretion, shall make available to Reseller opportunities to participate in sales leads and referrals programs offered by AvePoint to other resellers in the Territory.
3.5 Publicity.
As mutually agreed between the Parties, AvePoint may issue press releases announcing Reseller’s appointment as a reseller of the Solutions and take any other action it deems appropriate to publicise the relationship between AvePoint and Reseller. Reseller shall not publicise its relationship with AvePoint without AvePoint’s prior written consent.
3.6 AvePoint Program Manager.
AvePoint will provide a point of contact to Reseller for the purpose of addressing business and technical issues relating to the Solutions.
4. PRICING AND PAYMENT TERMS.
4.1 Applicable Terms.
With regard to this Article 4, (i) Section 4.6 shall not apply where the Reseller purchases Solutions directly from AvePoint; and (ii) Sections 4.2-4.5 shall not apply where Reseller purchases Solutions through a Distributor.
4.2 Ordering Procedure.
Reseller shall contact AvePoint for a price quote for each order (“Quote”). An official Quote will be prepared by AvePoint and provided to Reseller. Reseller may indicate their acceptance of the Quote by submitting a purchase order with no additional terms and/or the signed Quote to AvePoint. Quotes shall expire after 30 days unless reissued by AvePoint
4.2.1. Reseller shall promptly transmit to AvePoint purchase orders for Solutions using the transmission method mutually agreed between AvePoint and Reseller. Reseller shall state the End-User’s full legal name and contact details when transmitting a purchase order to AvePoint. All purchase orders submitted to AvePoint by Reseller shall refer to the terms and conditions of this Agreement, which shall apply to all purchase orders submitted by Reseller. In the event of any conflict between the terms and conditions of this Agreement and the terms of a purchase order or any other correspondence transmitted to AvePoint by Reseller, the terms and conditions of this Agreement shall control.
4.2.2.Except for orders for a Reseller’s internal usage, a purchase order shall only be submitted to AvePoint if Reseller itself has received a binding order from the End-User for the same Solution(s), amounts, term and without termination rights beyond those that are offered by AvePoint under the MSLSA and/or the MSA (as applicable for those Solution(s)) or as explicitly agreed by AvePoint in advance.
4.2.3.Upon receipt of a signed Quote and/or a purchase order from Reseller acceptable to AvePoint, AvePoint shall provide necessary activation information to Reseller.
4.2.4.Reseller has no authority to, and shall not, accept, alter, enlarge, limit, or accept the return of, orders on behalf of AvePoint, or in any manner assume or create any obligation, express or implied, on behalf of or in the name of AvePoint, or act for or bind AvePoint in any other matter.
4.2.5.AvePoint reserves the right to accept, reject, or cancel any purchase order submitted by Reseller, in its sole discretion at any time. AvePoint shall promptly notify Reseller if it rejects or cancels any purchase orders submitted by Reseller. AvePoint shall not be liable for damages to Reseller or any third party caused by AvePoint’s delay or error in filling, or failure to fill, orders for any reason.
4.3 Pricing.
Reseller shall be entitled to a discount for each Order. Discounts are set forth in the Partner Program Terms. AvePoint reserves the right to amend the Partner Program Terms upon thirty (30) days’ written notice to the reseller community, including but not limited to posting such notice on the AvePoint Partner Portal. In the event Reseller does not find the amended Partner Program Terms to be acceptable, Reseller may terminate this Agreement pursuant to Section 11.3.
4.4 Payment Terms.
After having provided the necessary activation information for an Order, AvePoint will send Reseller an invoice for the Order. Upon receipt of each invoice, Reseller shall forward to AvePoint, at the address included on the invoice, payment in full, without deduction or setoff, of the amount indicated on the invoice. All payments shall be made in Pound Sterling (£), in immediately available funds. Reseller shall have thirty (30) days from the date of an invoice to forward payment in full to AvePoint. If payment in full is not received by AvePoint within thirty (30) days following the date of an invoice, Reseller shall be assessed interest at the rate of one and a half percent (1.5%) of the total amount due, per month of the total amount due, or the maximum rate of interest allowed by law (whichever is higher), until the invoice is paid in full. In the event Reseller’s account is referred to a collection agency, Reseller shall also pay all costs, including attorney fees, incurred by AvePoint for actions taken by the collection agency.
4.5 Applicable Taxes.
Reseller agrees to pay any sales, value-added or other similar transaction-based taxes imposed by applicable law. Furthermore, where required under the provisions of any applicable laws (including treaties), Reseller agrees to withhold on payments made to AvePoint, and remit to the relevant taxing authority, any withholding tax as imposed by the relevant taxing authority. In the event the Reseller withholds from payment and/or remits to the relevant taxing authority more withholding tax than is stated by AvePoint on any Order (i.e., the “Predetermined Tax Amount”) both the Reseller and AvePoint shall attempt to settle such disputes before any payment is remitted to AvePoint or the relevant taxing authority. Reseller is liable to AvePoint for any tax withheld from payment to AvePoint and/or remitted to the relevant taxing authority exceeding the Predetermined Amount. The Parties shall use commercially reasonable efforts to cooperate and coordinate with each other in completing and filing documents required under the provisions of any applicable laws (including treaties) in connection with the making of any required tax payment or withholding payment, in connection with a claim of exemption from, or entitlement to, a reduced or zero rate of withholding; or in connection with any claim to a refund of or credit for any such payment. Reseller agrees to indemnify AvePoint as to all such taxes.
4.6 Payments to Distributor.
Reseller will place purchase orders with a Distributor, and shall negotiate prices, payment, shipment/transmission terms and any other topics covered in Sections 4.2-4.5 directly with the Distributor, except that a purchase order shall only be submitted to the Distributor if Reseller itself has received a binding order from the End-User for the same Solution(s), amounts, term and without termination rights beyond those that are offered by AvePoint under the MSLSA and/or the MSA (as applicable for those Solution(s)) or as explicitly agreed by AvePoint in advance. Upon receipt of Orders acceptable to AvePoint from Reseller through the Distributor, AvePoint shall provide necessary activation information to Reseller.
5. DATA ACCESS AND COMPLIANCE.
5.1 Reseller shall, upon receipt of a prior written request from AvePoint, and during normal business hours, provide access to data and records relating to Reseller’s performance of its obligations pursuant to this Agreement (including the obligation to only submit purchase orders that are backed by valid order forms from End-Users in accordance with Section 4) to AvePoint, its auditors and any other representatives reasonably designated by AvePoint. Reseller shall provide AvePoint, its auditors, and other representatives such assistance as they reasonably require in connection with any audit of Reseller’s performance pursuant to this Agreement. AvePoint may, from time to time and in its sole but reasonable discretion, perform an audit of Reseller’s compliance with this Agreement. With respect to Reseller’s obligations under Section 10, Reseller, as a condition of its continued relationship with AvePoint, upon receipt of written request from AvePoint, shall promptly complete and comply with all partnership compliance requirements that AvePoint has for its resellers, including but not limited to associated due diligence questionnaires and compliance agreements. If AvePoint reasonably determines that Reseller or its agents has violated or will violate the terms of this Section, then AvePoint may suspend or otherwise terminate the Parties’ relationship, for cause, in accordance with Section 11.2. The audit rights contained in this section shall exist during the Agreement term and for five (5) years after termination/expiration of this Agreement.
6. LICENCE AND ACCESS PROVISIONS.
6.1 Grant of Licence in, or Access to, Solutions.
Subject to the terms and conditions of this Agreement, AvePoint grants to Reseller, and Reseller hereby accepts, a limited, non-assignable, non-sublicensable, non-exclusive right and licence to take the following actions, during the term of this Agreement, within the Territory: (i) sell, subject to the restrictions set forth in Section 6.2, the Solutions; (ii) use and display the Solutions, for purposes of promoting and demonstrating the Solutions; and (iii) use internally the Solutions, in whole or in part, as necessary to accomplish the foregoing. When reselling the Solutions, Reseller shall not remove, obliterate, or alter any of the AvePoint Marks that appear therein, or any other copyright, patent, trademark, or proprietary rights notice that appears therein, and Reseller shall reproduce all copyright, patent, trademark, or other proprietary rights notices that appear therein.
6.2 Restrictions.
The Software will be provided only in object code form. Reseller shall notify each End-User prior to or upon receipt of the Solutions, that by accepting delivery of the Solution or by written or electronic acceptance of a written agreement prior to receipt of the Solution, each End-User must agree to be bound by AvePoint’s MSLSA for the purchase of Software licences, access rights to SaaS Solutions and/or for the purchase of Support Services and by AvePoint’s MSA for the purchase of Professional Services, respectively.
6.3 Grant of Licence in Promotional Materials.
Subject to the terms and conditions of this Agreement, AvePoint hereby grants to Reseller, and Reseller accepts, a limited, non-assignable, non-sublicensable, non-exclusive right and licence, during the term of this Agreement, to use, reproduce, and display Promotional Materials, to create Derivative Works thereof, and to distribute Promotional Materials within the Territory. When reproducing Promotional Materials, Reseller shall not remove, obliterate, or alter any of the AvePoint Marks that appear therein, or any other copyright, patent, trademark, or proprietary rights notice that appears therein, and Reseller shall reproduce all copyright, patent, trademark, or other proprietary rights notices that appear therein. All Promotional Materials given by AvePoint to Reseller or created by Reseller through reproduction of Promotional Materials and all materials produced by Reseller through the creation of Derivative Works of the Promotional Materials remain the property of AvePoint and, except insofar as they are distributed by Reseller in the course of its performance of its duties under this Agreement, shall be promptly returned to AvePoint upon the request of AvePoint or upon the termination of this Agreement, for any reason.
6.4 Grant of Reciprocal Trademark Licence.
Subject to the terms and conditions of this Agreement, AvePoint grants to Reseller, and Reseller hereby accepts, a limited, non-assignable, non-sublicensable, non-exclusive right and licence to use the mark AvePoint and the AvePoint logo as well as all AvePoint trademarks associated with the Solutions (collectively, such marks hereinafter referred to as “AvePoint Marks”) during the term of this Agreement as necessary in order to fulfil its obligations under this Agreement. Reseller hereby grants to AvePoint, and AvePoint hereby accepts, a non-exclusive right and licence to Use Reseller’s marks and logo (collectively, “Reseller Marks”) as necessary to publicise and promote the relationship between AvePoint and Reseller, as established under this Agreement. These reciprocal trademark licences shall be subject to the following limitations:
6.4.1 Each of the Parties shall use the other Party’s marks only in connection with the exercise of its rights or the performance of its obligations pursuant to this Agreement, and for no other purpose.
6.4.2 Each of the Parties agrees to follow any reasonable policies that the other Party may establish with respect to the use of its marks, including policies relating to use of trademark or service mark notices. Any such policies adopted by one of the Parties shall be communicated to the other Party in writing.
6.4.3 Any materials created by Reseller to promote the Solutions, which materials incorporate the AvePoint Marks, shall be submitted to AvePoint for its approval. AvePoint’s written approval of any such materials shall be obtained before such materials may be used, distributed, or displayed by Reseller. AvePoint shall have sole discretion whether to approve such materials.
6.4.4 Upon notice to the other Party, either Party, in its sole discretion relating to its marks, may terminate the right of the other Party to use any of its marks at any time and for any reason. Such termination shall have no effect on the remaining provisions of this Agreement.
7. PROPRIETARY RIGHTS.
7.1 Confidentiality.
While performing their obligations pursuant to this Agreement, a Party (the “Receiving Party”) may be furnished with, receive, and otherwise have access to Confidential Information of the other Party (the “Disclosing Party”). All Confidential Information shall remain the property of the Disclosing Party. The Receiving Party shall: (i) hold all Confidential Information in strict confidence and refrain from disclosing Confidential Information to third parties except to its own or its Affiliates’ directors, officers, employees or consultants and only then if these persons have a clear need to know such Confidential Information in connection with the performance of their professional responsibilities and are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement; (ii) use Confidential Information solely and exclusively for the purposes of fulfilling its obligations under this Agreement, and only as expressly authorised by this Agreement; and (iii) accord Confidential Information at least the same level of protection against unauthorised use or disclosure that the Receiving Party customarily accords to its own confidential, proprietary, or trade secret information of a like nature, but in no event less than a reasonable level of protection.
7.2 Reservation of Rights.
No right or licence in the Solutions, Promotional Materials, or AvePoint Marks shall be implied by estoppel or otherwise, other than the rights and licences expressly granted in this Agreement. AvePoint shall retain all ownership right, title, and interest in the Solutions, Promotional Materials, and AvePoint Marks, subject only to the rights and licences specifically granted herein.
7.3 Acknowledgement of Rights in Solutions and Promotional Materials.
Reseller acknowledges that the Solutions, and Promotional Materials are protected under copyright law and other laws protecting intellectual property rights and contain trade secrets of AvePoint. Reseller further acknowledges the exclusive rights of AvePoint in and to the Solutions, and Promotional Materials, and acknowledges that AvePoint retains sole title to and ownership of the Solutions, and Promotional Materials, and any copies thereof or Derivative Works of Promotional Materials made by Reseller. Nothing in this Agreement or the conduct of the Parties shall give Reseller any ownership interest in the Solutions or Promotional Materials, but with only a limited right to use and provide the same in accordance with this Agreement. Reseller shall not represent, in any manner, that it has an ownership interest in the Solutions or Promotional Materials. Reseller shall not attempt to assert any intellectual property rights in the Solutions or Promotional Materials under the laws of any jurisdiction. Moreover, Reseller shall not commit, or cause any third party to commit, any act challenging, contesting, or in any way impairing or attempting to impair AvePoint’s rights in the Solutions or Promotional Materials.
7.4 Acknowledgement of Rights in Marks.
Reseller acknowledges the exclusive rights of AvePoint in and to the AvePoint Marks, and any other marks applied by AvePoint to the Solutions and Promotional Materials. AvePoint acknowledges the exclusive rights of Reseller in and to the Reseller Marks. Nothing in this Agreement or the conduct of the Parties shall give either Party any ownership interest in the other Party’s marks. Accordingly, neither Party shall make any use of the other’s marks, nor any name or mark confusingly similar thereto, except as expressly authorised by this Agreement. Neither Party shall represent, in any manner, that such Party has an ownership interest in the other Party’s marks. Neither Party shall register or attempt to register the other Party’s marks under the laws of any jurisdiction. Moreover, neither Party shall commit, or cause any third party to commit, any act challenging, contesting, or in any way impairing or attempting to impair the other Party’s rights in its marks. Each Party’s use of the other Party’s marks, as authorised pursuant to this Agreement, shall inure to the benefit of the owner of the marks.
8. DATA SECURITY AND USE OF PERSONAL DATA
8.1 All Personal Data received or collected by AvePoint in connection with the performance of this Agreement will be processed by AvePoint in accordance with AvePoint’s privacy policy which can be accessed at http://www.avepoint.com/compan.... Reseller shall collect and process Personal Data in accordance with applicable laws. Reseller represents that Reseller’s data protection policies and practices are, and will be maintained, at a minimum, in accordance with standard industry practices applicable to data protection, information security, and privacy and that Reseller has taken all appropriate security measures required by applicable law, including ensuring that persons it has authorised to process Personal Data are under appropriate obligations of confidentiality. Reseller is not authorised to transfer Personal Data or Confidential Information to any other party or sub-processor without AvePoint’s pre-approval. Furthermore, Reseller shall assist AvePoint as necessary to respond to requests from individuals that are exercising their privacy rights. At the request of AvePoint, Reseller shall make available all information necessary to demonstrate compliance with the obligations set forth in this Section 8.1, including allowing for and cooperating with audits as set forth in Article 5 above.
8.2 Reseller shall provide written notice without undue delay of any unauthorised access, use or disclosure of Personal Data or any security breach that could affect AvePoint or End-Users or could impact the activities to be performed under this Agreement. In such event, Reseller shall immediately take remedial action as required by applicable data protection legislation and as requested by AvePoint. Reseller warrants that it has obtained all necessary consents to provide End-User Personal Data to AvePoint for the purpose of performing this Agreement. Upon reasonable request, Reseller shall provide appropriate evidence of Reseller’s compliance with this Section 8.1.