Attentive Technical Partner Terms
IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU (I) MUST NOT ACCEPT THIS AGREEMENT; AND (II) ARE NOT ELIGIBLE TO PARTICIPATE AS AN ATTENTIVE TECHNICAL PARTNER. PRIOR TO ENTERING INTO THIS AGREEMENT, YOU MUST COMPLETE AND SUBMIT A PARTNER PROGRAM APPLICATION, AND ATTENTIVE MUST REVIEW AND ACCEPT YOUR APPLICATION. ATTENTIVE WILL NOTIFY YOU AS TO WHETHER YOUR PARTNER PROGRAM APPLICATION HAS BEEN ACCEPTED. THE AGREEMENT BECOMES BINDING UPON OFFICIAL NOTICE TO YOU FROM ATTENTIVE THAT YOU HAVE BEEN ACCEPTED AS A PARTNER (THE “EFFECTIVE DATE”). PLEASE NOTE THAT IF YOU ARE AN EXISTING ATTENTIVE PARTNER, YOU DO NOT NEED TO BE RE-APPROVED; HOWEVER, YOU NEED TO ENTER INTO THIS AGREEMENT IN ORDER TO TAKE ADVANTAGE OF NEW PARTNER BENEFITS ATTENTIVE IS PROVIDING.
ATTENTIVE RESERVES THE RIGHT TO UPDATE AND/OR MODIFY THE AGREEMENT BY PROVIDING NOTICE TO YOU VIA EMAIL. YOUR CONTINUED PARTICIPATION AS A PARTNER WILL BE DEEMED YOUR ACCEPTANCE TO ANY UPDATE OR MODIFICATION OF THE AGREEMENT.
As of the Effective Date, Attentive appoints Partner to be a technical partner during the Term (as defined below) of the Agreement. Depending on the type(s) of partnership activities that the Parties decide to pursue together (e.g., event sponsorship, technology integration, lead referrals, reselling, etc.), the Parties may also agree upon one or more contract addenda to further supplement or amend the Agreement (each an “Addendum” and collectively the “Addenda”). In the event of any conflict between the terms of the Agreement and any Addendum, the Addendum shall control but solely with respect to the content of such Addendum.
Except as may be expressly set forth in the API License Terms, no software is licensed and no services are offered for use by Attentive under the Agreement; and any such software products (including any updates and upgrades thereto, and any related technical support and documentation) and/or services provided by Attentive to Partner, if any, shall be subject to and governed by the terms and conditions of the applicable Attentive license or subscription agreement(s) separately entered into by the Parties. Nothing herein shall be deemed to amend, alter or otherwise effect the terms of any such license or subscription agreement(s).
At Attentive’s request, Partner will grant Attentive membership in Partner’s own partner program and provide similar benefits under terms mutually agreed upon by the Parties.
2. TERM AND TERMINATION
2.1 Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until it expires under Section 2.2 or is terminated in accordance with Section 2.3.
2.2 Automatic Renewal. Except to the extent otherwise mutually agreed in writing, this Agreement will begin on the Effective Date and continue in effect until December 31 of the subsequent calendar year (the “Initial Term”). This Agreement (including all mutually executed Addenda then in effect) will renew automatically on January 1 of each calendar year for a period of twelve (12) months unless and until either Party notifies the other Party in writing of non-renewal at least thirty (30) days prior to expiration of the then-current period (each a “Renewal Term,” together with the Initial Term, the “Term”).
2.3 Termination. Either Party may terminate this Agreement (including all associated Addenda) for cause upon written notice if the other Party fails to cure any material breach of the Agreement or any Addendum within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Attentive may terminate the Agreement for convenience upon thirty (30) days’ written notice to Partner.
2.4 Effect of Termination. In the event of any termination of this Agreement under Section 2.3, the terms of this Agreement (and of all Addenda) that reasonably should survive will survive, including, without limitation, all payment obligations under any Addenda.
3.1 Fees. The fees to be paid by Partner, if any, shall be as set forth in an applicable Addendum. Except to the extent expressly stated otherwise in an Addendum or otherwise mutually agreed to in writing by the Parties, all payments owed by Partner to Attentive: (a) are non-cancelable and non-refundable; and (b) must be paid via autopay (i.e., credit card) within thirty (30) days of receipt of the applicable invoice. Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities. Partner is responsible for paying all taxes associated with the rights and benefits it receives under the Agreement except that Attentive is solely responsible for all taxes assessable against Attentive based on its income, property and employees.
3.2 Billing & Contact Information. Each Party agrees to provide the other Party accurate billing and contact information at all times during the Term and to update such information promptly in writing (email is sufficient) after any material changes.
3.3 Expenses. Except as expressly set forth in the Agreement, each Party is responsible for its own expenses in connection with their performance hereunder and will not be entitled to reimbursement of any such expenses.
4. MARKETING RIGHTS
4.1 Marketing Communications. By entering into this Agreement, Partner has opted-in to receive Attentive’s marketing communications. Partner will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons or Partner personnel who are signed up on Partner’s behalf. Partner may elect to opt-out from receiving Attentive’s marketing materials by contacting Attentive directly.
4.2 Use of Marks. Partner grants Attentive a nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, for the purpose of identifying Partner as a technical partner of Attentive and in connection with Attentive’s rights, duties and obligations under this Agreement, Partner’s marks including Partner’s company name and logos (“Partner Marks”). Partner may withdraw its approval of any use of the Partner Marks at any time in its sole discretion upon not less than thirty (30) days’ prior written notice to Attentive.
4.3 Press Releases. Each Party will submit to the other Party, for its prior written approval, any press release or other public statement regarding the activities contemplated hereunder. The Parties agree that failure to obtain the prior approval of the other Party shall be deemed a material breach of the Agreement. Notwithstanding foregoing, Partner agrees that Attentive may issue a press release announcing the partnership not more than six (6) months following the Effective Date.
5. INTELLECTUAL PROPERTY; APPLICATIONS
5.1 Ownership of Technology. Subject to each Party’s respective rights and obligations under the Agreement and without limiting any restrictions set forth in the API License Terms, Attentive acknowledges that Partner and/or other parties may develop and publish applications that are similar to or otherwise compete with Attentive’s products or services, and Partner acknowledges that Attentive and/or other parties may develop and publish applications that are similar to or otherwise compete with Partner’s products or services. Except for those limited licenses and rights expressly set forth in the Agreement, nothing in the Agreement transfers or assigns to either Party any of the other Party’s intellectual property or other proprietary rights in the other Party’s technology, products or services. Attentive retains all right, title and interest, including but not limited to all intellectual property rights, in and to Attentive’s technology, products and services.
5.2 Evaluation Materials. Partner may provide its products or services (including APIs) (“Evaluation Materials”) for interoperability review, testing, and validation (“Permitted Purpose”) by Attentive. Unless otherwise agreed in writing, products provided to Attentive by Partner for evaluation will be considered Evaluation Materials. Partner grants Attentive a worldwide, perpetual, royalty-free, non-exclusive, non-sublicensable license to install, run and use a reasonable number of copies of the Evaluation Materials for the Permitted Purpose. Except for license rights granted in this paragraph, Partner retains all its right, title and interest in its Evaluation Materials. Nothing in this Agreement obligates Attentive to receive any Evaluation Materials or to conduct any testing or review of Evaluation Materials. For the avoidance of doubt, the Agreement supersedes any click-wrap or browse-wrap terms required to install or use the Evaluation Materials in connection with the Agreement.
5.3 Feedback. Partner grants Attentive a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Partner.
5.4 Application Development. During the Term of this Agreement and subject to Partner’s compliance with this Agreement, Partner is eligible to develop and distribute an application that integrates with or otherwise complements Attentive’s products or services (the “Application”). Any utilization of the Attentive API by and/or with an Application is subject to the API License Terms. In addition to the obligations set forth in this Agreement, Attentive may require that Partner complete certain requirements, questionnaires, assessments, or certification(s) before an Application is approved by Attentive for use or distribution. Attentive may update or change its products and/or services at any time and does not guarantee that any Application will be or will remain compatible. Attentive may make suggestions and/or recommendations to Partner to modify any Application(s) and Partner will either (i) implement such suggestions and/or recommendations in a timely fashion; or (ii) no longer make the Application(s) available for use. In addition to any license to the Evaluation Materials, Partner grants Attentive a non-exclusive, royalty-free, fully paid-up worldwide right and license to (i) market, promote, and/or distribute the Application(s) in any medium, stand-alone and/or bundled with other applications, and (ii) reproduce, distribute, display publicly, perform publicly, modify and otherwise use the Application(s). Partner is solely responsible for hosting the Application and for all associated network connectivity, maintenance, back-up, and all hardware, software, support and other services required to provide the Application(s) to end users, and Partner shall bear all costs and expenses associated therewith. In the event Partner is no longer able or willing to offer, maintain or support an Application, Partner must (i) provide no less than ninety (90) days prior written notice to Attentive, (ii) provide timely notice to all end users, and (iii) follow proper guidelines to sunset the Application.
5.5 Application Security and Support. Partner must establish, implement, and maintain security policies and a program of technical, administration, and organizational measures to prevent unauthorized access to the Application and meet applicable information security best practices, standards, and guidelines with respect to development and distribution of the Application. If Partner discovers any security issues with the Application, Partner shall promptly disclose and responsibly work with Attentive to remedy such security issue. Partner is responsible for providing support, if any, to end users related to the operation of the Application(s) pursuant to Partner’s own support terms and policies. Attentive may, from time to time, require Partner to provide training materials, documentation and support assistance via telephone or email regarding the Application(s). Partner is responsible for implementing and maintaining support for “Single Sign On” access to the Application(s) in accordance with Attentive’s then- current requirements. Partner is prohibited from using any robot, spider or other automated process to scrape, crawl or index Attentive products or services, other than by integrating the Application(s) with documented Attentive APIs made available by Attentive. For the avoidance of doubt, Attentive has no responsibility or liability for (i) any data hosted or otherwise processed by the Application(s); (ii) the performance or security of any third- party product or service; and/or (iii) the Application(s).
5.7 Termination or Suspension.
Attentive may in its sole discretion suspend or terminate access to any Attentive APIs, or take any other action that Attentive deems necessary for the violation of any clause in this Section 5. The foregoing termination right is in addition to any termination rights set forth elsewhere in the Agreement.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), that is marked in writing as “confidential” or by a similar designation or that otherwise should be considered confidential information based on the nature of the information and circumstances of disclosure. For clarity, Confidential Information also includes pricing, the non-public parts of Disclosing Party’s products and services, including but not limited to any user interface, design and layout, and any related non-public specifications, documentation or technical information that Disclosing Party provides to the Receiving Party. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party may only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under the Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates, employees, contractors or agents who need such access to perform obligations under this Agreement and who are bound to terms as least as restrictive as those in this Agreement. Neither Party will disclose the terms of the Agreement to any third party (other than its affiliates and their legal counsel and accountants) without the other Party’s prior written consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7. REPRESENTATIONS & WARRANTIES
Each Party represents, warrants and covenants that (a) it possesses the full right, power and authority to enter into and fully perform the Agreement and all Addenda; (b) the execution, delivery and performance of the Agreement and all Addenda have been duly authorized by all necessary corporate action; (c) it will not make any materially false or materially misleading representations, warranties or statements about the other Party, the other Party’s products or services, or the Parties’ relationship under the Agreement; (d) it will comply with all applicable laws, rules and regulations in connection with its performance under the Agreement; (e) it is not the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Asset Control or the U.S. State Department, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Sanctions”) and it is not located, organized or resident in a country or territory that is the subject of Sanctions.
In addition to the foregoing, Partner represents, warrants and covenants that (i) it will not solicit customers to leave Attentive or Attentive affiliates; (ii) it will not copy, resemble or mirror the look and feel of Attentive’s technology, services, products or sites; (iii) it will not engage in any other practices which may adversely affect the credibility or reputation of Attentive or its affiliates; (iv) it will not copy Attentive technology, products or services or any part, feature, function or user interface thereof; (v) it will not recruit or market using data, content or contact information obtained through any Attentive API; (vi) it will not access any Attentive API in order to build a competitive product or service or to benchmark with a non-Attentive product or service; (vii) it will not be out of compliance with applicable law; (viii) it will not disparage Attentive, Attentive’s products and services, or this partnership in any way or in any medium; (ix) it will not engage in any activity in violation of any Attentive policies; or (x) it will comply with the respective Partner requirements set forth in the Program Guide at all times during the Term of the Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES OR NONINFRINGEMENT.
Partner agrees to indemnify, defend and hold harmless Attentive, its affiliates, and their directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “Claims”), to the extent that such Claim is based upon or arises out of: (i) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (ii) Partner’s gross negligence or willful misconduct; (iii) Partner’s use of any Attentive API; (iv) any third party claim that Partner’s products or services, including without limitation any Application infringes the intellectual property or other rights of a third-party; (v) any end user data transmitted to or through Partner’s products and services, including without limitation, any Application; (vi) the performance, non-performance or improper performance of the Partner’s products or services, including without limitation, any Application; or (vii) Partner’s relationship with any end user.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
9.1 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY) OF THE TERMS OR ANY INDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE IN CONNECTION WITH THIS AGREEMENT OR ANY ADDENDA FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOST REVENUES, PROFITS, GOODWILL OR DATA), HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (E.G., BREACH OF CONTRACT, STRICT LIABILITY, STATUTORY, NEGLIGENCE OR OTHER TORT), REGARDLESS OF WHETHER SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE REMEDIES ALLOWED HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
9.2 LIMITATION OF LIABILITY. ATTENTIVE’S AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTIONS, CLAIMS AND DAMAGES IN CONNECTION WITH THIS AGREEMENT AND ANY ADDENDA WILL BE LIMITED TO THE LESSER OF (A) DIRECT DAMAGES ACTUALLY PROVEN, AND (B) THE AMOUNT OF FEES PAID AND/OR OWED UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD BEFORE THE DATE ON WHICH THE CLAIM AROSE.
10.1 Governing Law and Jurisdiction. The Agreement will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the Parties agree to waive all rights to challenge the foregoing.
10.2 Assignment. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) the Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer the Agreement to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control. Any purported assignment or other transfer in violation of this section is void.
Notwithstanding anything to the contrary in this section, in the event of any assignment or transfer by Partner under this section to any competitor of Attentive, Attentive will have the right to immediately terminate the Agreement (including all associated Addenda). Subject to this section, the Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
10.3 Independent Contractors and Non-Exclusivity. Partner acknowledges and agrees that the relationship with Attentive arising from the Agreement does not constitute or create a legal partnership, general agency, joint venture, employee relationship or franchise between them. The Parties' relationship is at all times that of non-exclusive independent contractors. Neither Party will be liable for the debts, obligations or responsibilities of the other Party, and neither Party will have the right or authority to assume or create any obligation or responsibility for the other, whether expressed or implied, on behalf of or in the name of the other Party or to bind the other Party in any manner. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any party who is not a party to this Agreement.
10.4 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement (including any Addenda) due to a cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform. The affected Party must, however, (a) give the other Party prompt written notice of the nature and expected duration of such force majeure, (b) use commercially reasonable efforts to mitigate the delay and other effects, (c) periodically notify the other Party of significant changes in the status of the force majeure, and (d) notify the other Party promptly when the Force Majeure ends.
10.5 Waiver, Severability & Interpretation. The failure of either Party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The Parties acknowledge and agree that each Party and its counsel have freely accepted and/or contributed to all terms of this Agreement, and that the normal rule of construction to the effect that ambiguities are resolved against the drafting Party will not apply to interpretation of this Agreement.
10.6 Notices. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested and with the appropriate postage affixed; or (ii) sent via facsimile or electronic mail to: Attentive Mobile Inc. 221 River Street, Suite 9047 Hoboken, New Jersey 07030 email@example.com in the case of Attentive and to the address provided by Partner upon sign-up to these Terms. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.
10.7 Entire Agreement. The Agreement, including any Addenda, comprises the entire agreement between Partner and Attentive regarding such subject matter, and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.