Reseller Terms and Conditions
Podium.com (https://vanbrunt.wpengine.com), including all of its related applications, dashboards or platforms (individually and collectively, the “Website”), is owned and operated by Podium Corporation, Inc. (“Podium”, “we” or “us”). By using or accessing the Website or Podium Products or Service(s) (as defined herein), by signing or clicking to accept any agreement referencing these Terms, or by clicking to accept these terms, you agree to all the terms and conditions of this Reseller Terms of Service Agreement (“Terms”, “Terms of Service” or “Agreement”).
By offering Podium Product(s) or Service(s) to End User(s), you represent and warrant that you have the legal power and authority to enter into this Agreement and/or bind End User(s) to this Agreement. If the Partner is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.
If you have entered into another agreement with Podium concerning specific Services, the terms of that agreement control in the event of any conflict with these Terms. Please note that we may modify this Agreement as described in Section 17.5 below.
- DEFINITIONS
- “Add-On” means integrations or applications that are sold by third-party provider, or made available by Podium for sale or distribution by a Partner, for authorized use with the Service by an End User.
- “Aggregate/Anonymous Data” means: (i) data generated by aggregating End User Data with other data so that results are non-personally identifiable with respect to End User or its Customers and (ii) anonymous learnings, logs and data regarding use or effectiveness of the Service.
- “Authorized Users” means Partner’s or End User’s employees and contractors who are acting for Partner’s or End User’s benefit and on its behalf, and whom Partner or End User has authorized to access the Service and the information contained therein.
- “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).
- “End User Data” means: (i) Content and any (ii) Submitted Data.
- “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
- “Content” means text, images or other content that Partner or End User selects or submits for use or incorporation with the Service (including without limitation, chat and message logs).
- “Customer(s)” means the End User’s clients, customers, patrons, shoppers, or other persons or organizations that buy goods or services from the End User.
- “Customer Data” means data related to the identity, characteristics and activities of Customers, collected or submitted to the Service(s) by End Users or captured by the Service. To the extent an End User is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, “End User Data” also includes PHI.
- “End User” means any person or entity that is a client or customer of the Partner, or that is a potential client or customer of Partner, and that accesses or uses a Podium Service or Product for its own use, but not for resale or further distribution.
- “Excused Downtime” means unavailability caused by (i) actions or omissions of End User; (ii) failures, errors or defects in the facilities, hardware, software or network of End User; or (iii) circumstances that constitute a force majeure event or that are beyond Podium’s reasonable control.
- “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security standards as contained in 45 C.F.R. Parts 160, 162 and, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and, all as may be amended from time to time.
- “Location” means any Partner or End User with a unique page, profile, or presence on an internet service or social media (such as Google, Facebook, Instagram, etc).
- “Partner” means any entity, individual or otherwise, participating in the Podium Certified Reseller Program as a reseller who is authorized under the Agreement to distribute, sell, and/or service the Podium Services or Products.
- “Planned Outages” means any scheduled maintenance.
- “Podium Certified Reseller Agreement” means the signed agreement, including all attachments and/or exhibits, between Podium and Partner, referencing these Terms and authorizing Partner to participate in the Podium Certified Reseller Program.
- “Podium Technology” means the Service(s), any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any feedback.
- “Product(s)” means the Podium products and/or Services specified herein or on any applicable Podium Certified Reseller Agreement, but in no event shall any “Podium Product” include any source code or object code.
- “Protected Health Information” (hereinafter “PHI”) has the same meaning as that term is defined in HIPAA.
- “Scope of Use” means the usage limits or other scope of use descriptions for the Service(s) included in any applicable Podium Certified Reseller Agreement. These include any numerical limits on Authorized Users, descriptions of product feature levels and names or numerical limits.
- “Service(s)” means the specific proprietary product of Podium provided to Partner and/or End User for End User’s use during the Subscription Term, as part of a subscription. The “Service(s)” also includes the Website, as defined herein. The “Service” does not include any Third-Party Product.
- “Submitted Data” means data uploaded, inputted or otherwise submitted by End User to the Service, including any Customer Data, PHI or any Third-Party Content.
- “Subscription Term” means the agreed upon duration of an End User’s contract term, as specified in the applicable Podium Certified Reseller Agreement.
- “Support Services” means the support and maintenance services related to the Podium Product.
- “Territory” means the geographic territory identified in Podium Certified Reseller Agreement.
- “Third-Party Content” means content, data or other materials that End User provides to the Podium Service(s) from its third-party data providers, including through Add-Ons used by End User.
- “Third-Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Podium.
- DISTRIBUTION OF PODIUM PRODUCT
- Authorization and Appointment. Podium hereby authorizes and appoints Partner as a non-exclusive distributor of the Podium Products, as more fully set forth in this Agreement or the applicable Podium Certified Reseller Agreement. Although the terms “distribute”, “sell”, and “sale” are used throughout this Agreement, the parties recognize and agree that the Podium Products are only licensed and/or sublicensed, not sold.
- License Grants and Restrictions
- License to Podium Products. Subject to the terms and conditions of this Agreement, Podium grants to Partner a limited, non‑exclusive, non‑transferable, non-sublicensable right to (i) resell the Podium Products to End Users in the Territory; (ii) make the Podium Products available to End Users (iii) internally use the Podium Products solely to support Partner’s rights and obligations under this Agreement.
- End User Sublicensing. Subject to the terms and conditions of this Agreement, Partner may allow End Users to access and use the Podium Products. Prior to accessing or using the Podium Products, Partner must require each End User to accept Podium’s Terms and Conditions and Privacy Policy (currently available at https://www.podium.com/terms-and-conditions/) (the “End User Agreement”), as set forth on Podium’s website.
- Enforcement of End User Agreements. Partner will notify Podium of any breach of a material obligation under an End User Agreement of which it becomes aware, and will cooperate with Podium in any legal action to prevent or stop unauthorized use, reproduction, or distribution of the Podium Products.
- Delivery and API. Podium shall use commercially reasonable efforts to make the Podium Products available to End Users following new signup. Upon Partner’s written request, Podium will deliver to Partner, at Podium’s option, either an application program interface (API) or defined user interface for transferring data to and from the Podium Products.
- General Restrictions. Except as explicitly provided in this Agreement or expressly permitted by applicable law, Partner will not, and will not permit or authorize End Users or other third parties to (a) decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Podium Products; (b) copy, modify, enhance, or otherwise create derivative works of the Podium Products; or (c) develop methods to enable unauthorized use of the Podium Products.
- Restrict Acquisition of Rights by Government. Partner will comply with all applicable laws, rules, and regulations to preclude the acquisition of rights to technical data, software, and documentation provided with the Podium Products to a governmental agency, and ensure the inclusion of the appropriate “Restricted Rights” or “Limited Rights” notices required by the U.S. Government agencies or other relevant governmental entities.
- Export Restrictions. Partner will not distribute the Podium Products in any foreign territory where any of the terms of the applicable End User Agreement would be unenforceable, where the terms would not provide the protections to Podium and the Podium Products intended under this Agreement, or where there is a significant risk that the Podium Products would fall into the public domain. Partner will not directly or indirectly import, export, or re‑export the Podium Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory. Partner represents and warrants that Partner is not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders.
- Direct Sales by Podium. Podium reserves the unrestricted right to market, distribute, sell, and upsell licenses to the Podium Products worldwide, including without limitation through original equipment manufacturers, value added resellers, and other third-party intermediaries and directly to End Users.
- PRODUCTS
- Products. Subject to Partner’s and End User’s performance of its duties and obligations under this Agreement, including but not limited to timely payment of all Fees (as defined in Podium Certified Reseller Agreement), Podium shall provide Partner with the Product(s) as specifically set forth in the Podium Certified Reseller Agreement. Podium shall have no obligation to provide any products or services or perform any tasks not specifically set forth in the Podium Certified Reseller Agreement.
- Alteration of Products. Podium may modify the Product(s) set forth in the Podium Certified Reseller Agreement to include or remove any Product(s), provided that Podium provides Partner with at least thirty (30) days advance written notice of any material change.
- PRODUCT SUPPORT SERVICES
- Tiered Support. Partner will provide primary support for the Podium Products and the components thereof. Podium will offer secondary support on technical issues, troubleshooting, and system integrations.
- Technical Contacts. The individuals listed as Partner in Podium Certified Reseller Agreement will be the primary contacts for each party with regard to the Support Services. Each party will provide the other party with written notice if its technical contact is changed. The parties will select technical contacts that have been trained in the operation of the Podium Products.
- Support Training. As reasonably requested by Partner, Podium will train Partner support personnel with respect to the Podium Products either at Podium’s Headquarters, or through a remote training session via conference call, webinar, or otherwise, delivered via digital format. Prices and terms of Training of Partner personnel shall be as set forth on Podium Certified Reseller Agreement hereto.
- END USER DATA.
- Rights in End User Data. As between the parties, End User retains all right, title and interest (including any intellectual property rights) in and to the End User Data. Partner and End User hereby grants Podium a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the End User Data solely to the extent necessary to provide the Service and related services to Partner or End User and as otherwise provided herein.
- Aggregate/Anonymous Data. Partner and End User agree that Podium will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Podium Product, which Podium may use for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve Podium’s products and services and to create and distribute reports and other materials). Podium will not distribute Aggregate/Anonymous Data in a manner that personally identifies Partners, End Users, or its Customers, or that would otherwise violate applicable laws, such as HIPAA. If End User and Podium have entered into a BAA, Podium will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.
- Monitoring. Partner understands and agrees that Podium, and any third-party platform(s) Partner or End User uses or accesses in connection with the Service(s), may monitor and analyze Content submitted by Partner or End User (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website, Products, Services or third-party platform; to improve Partner’s or End User’s experience using the Website, Products, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Partner or End User; and/or to make the Website, Products, Services, or third-party Platform more helpful or useful to Partner, End User and other users.
- Security. Podium agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. If End User is a Covered Entity or Business Associate, as defined in HIPAA, Podium and End User agree to the terms of Podium’s Standard Business Associate Agreement (currently available at https://www.podium.com/business-associate-agreement), which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. Podium takes no responsibility and assumes no liability for any End User Data other than its express security obligations in this Section.
- Storage. Podium does not provide an archiving service. During the Subscription Term, Partner acknowledges that Podium may delete Content or Customer Data no longer in active use. Except for requirements that are included in any BAA entered into between Podium and End User, Podium expressly disclaims all other obligations with respect to storage.
- SALES AND MARKETING
- Partner Manager. Each party will designate a single point of contact within its organization to manage the relationship established by this Agreement (“Partner Manager”). Either party may change its Partner Manager by providing written notice to the other party. The Partner Managers will meet as necessary to discuss the business relationship and manage the activities contemplated by this Agreement. Disputes that cannot be resolved by the Partner Managers will be escalated to more senior executives for resolution.
- Sales and Marketing Practices. In selling, marketing, and promoting the Podium Products and otherwise performing under this Agreement, Partner will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations, warranties, or guarantees concerning the Podium Products that are inconsistent with or in addition to those made by Podium in this Agreement; (c) comply with all applicable international, national, state, and local laws and regulations; and (d) not advertise the Podium Product(s) at retail prices less than those set forth in Podium Certified Reseller Agreement.
- PRICING, PAYMENTS, AND REPORTING
- Pricing. Partner will pay Podium the fees specified in any applicable Podium Certified Reseller Agreement, including any exhibits attached thereto.
- Payment. Except as otherwise agreed to by the parties in writing, Partner will pay for each license beginning on the day the account is created in Podium and on a prorated basis for the remainder of the first month of service, combined with a renewing license fee at the beginning of each subsequent month. The Partner will be billed the wholesale price of Podium licenses at the beginning of month for that month of service. Partner is responsible to keep an active credit card on file with Podium for payment of all active licenses. Credit card information may be updated through Accounts Receivable ([email protected]), if needed.
- Currency and Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Partner will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Podium to collect any amount that is not paid when due. Amounts due from Partner under this Agreement may not be withheld or offset by Partner against amounts due to Partner for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Partner will pay all such amounts in United States dollars.
- Taxes. Other than net income taxes imposed on Podium, Partner will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Partner will pay any additional taxes as are necessary to ensure that the net amounts received by Podium after all such taxes are paid are equal to the amounts that Podium would have been entitled to in accordance with this Agreement as if the taxes did not exist.
- Obligation to Pay. Partner bears sole responsibility to pay for accepted Subscriptions of Podium Products regardless of any non-payments by any of its End Users. Any and all active accounts as of the first (1) of the month will be billed to Partner for payment.
- Records. During the Term of this Agreement and for two years after, Partner will maintain at its primary place of business full, true, and accurate books of account (kept in accordance with generally accepted accounting principles) and records concerning all transactions and activities under this Agreement. Such books and records will include and record, without limitation, all data that Partner is required to provide with respect to Podium Product purchases (including End User contact information) executed by Partner.
- Audit of Records. Podium, or its authorized agent, shall have the right to examine and audit the books and records set forth in Section 7.4 at its own expense and upon reasonable prior notice during normal business hours. In the event of any dispute as to the sufficiency or accuracy of such records, Podium may have an independent auditor examine and certify such records at Podium’s expense, provided that Partner shall be required to pay for such expenses if it is determined that Podium was underpaid amounts due to it by more than 5% for any annual period. Partner shall make prompt adjustment to compensate for any errors or omissions disclosed by any such examination and certification of Partner’s records.
- Pricing. Partner will pay Podium the fees specified in any applicable Podium Certified Reseller Agreement, including any exhibits attached thereto.
- TERM AND TERMINATION
- Term. This Agreement will commence upon the Effective Date and continue for a period of one year (the “Initial Term”). This Agreement shall automatically, and without further action by the parties hereto, renew for additional terms of one year (each an “Extended Term” and together with the Initial Term, the “Term”), unless either party hereto provides written notice of non-renewal to the other party no later than 30 days prior to the end of the then-current Term.
- Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
- No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Podium or Partner. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
- Effects of Termination. If this Agreement is terminated for any reason, (a) Partner will pay to Podium any fees, reimbursable expenses, compensation, and other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Partner will immediately cease use of and cease providing access to the Podium Products. The following provisions will survive any expiration or termination of this Agreement: Sections 7, 8, 10, 13, 15, 16, and 17. End User Agreements will survive in accordance with their terms.
- PODIUM NAME AND TRADEMARK USAGE
- Use of Company Names. Podium may identify Partner in Podium advertising and marketing materials as a reseller of the Podium Products. Podium will not use any Partner trademarks to identify Partner without Partner’s prior written approval, which approval will not be unreasonably withheld. Partner may identify Podium as the supplier of the Podium Products in Partner’s advertising and marketing materials if such materials are approved in writing in advance by Podium, which approval will not be unreasonably withheld.
- Podium’s Trademarks. Subject to the provisions of this Section 9, during the Term of this Agreement, Partner will have the right to advertise the Podium Products with Podium’s trademarks, trade names, service marks, and logos of Podium (“Podium’s Trademarks”), subject to Podium’s prior inspection and written approval of all materials bearing Podium’s Trademarks. All representations of Podium’s Trademarks that Partner intends to use will first be submitted to Podium for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by Podium. Partner will fully comply with all guidelines, if any, communicated by Podium concerning the use of Podium’s Trademarks. Podium may modify any of Podium’s Trademarks, or substitute an alternative mark for any of Podium’s Trademarks, upon 30 days prior notice to Partner.
- Use of Podium’s Trademarks. Partner will not alter or remove any of Podium’s Trademarks contained on or within the Podium Products. Except as set forth in this Section 6, nothing contained in this Agreement will grant or will be deemed to grant to Partner any right, title, or interest in or to Podium’s Trademarks. All uses of Podium’s Trademarks and related goodwill will inure solely to Podium and Partner will obtain no rights or goodwill with respect to any of Podium’s Trademarks, other than as expressly set forth in this Agreement, and Partner irrevocably assigns to Podium all such right, title, interest, and goodwill, if any, in any of Podium’s Trademarks. At no time during or after the Term of this Agreement will Partner challenge or assist others to challenge Podium’s Trademarks (except to the extent expressly required by applicable law) or the registration thereof or attempt to register any of Podium’s Trademarks or marks or trade names that are confusingly similar to those of Podium. Upon termination of this Agreement, Partner will immediately cease to use all Podium’s Trademarks and any listing by Partner of Podium’s name in any website, directory, public record, or elsewhere, must be removed by Partner as soon as possible, but in any event not later than the subsequent issue of such publication.
- PROPRIETARY RIGHTS AND NOTICES
- Proprietary Rights. Podium will own all right, title, and interest in and to the Podium Product(s) and Podium Technology. Partner will not act to jeopardize, limit, or interfere in any manner with Podium’s ownership of and rights with respect to the Podium Products. Partner will have only those rights in or to the Podium Products and documentation granted to it pursuant to this Agreement.
- Proprietary Rights Notices. Partner and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Podium Products or related documentation delivered by Podium.
- LIMITED WARRANTY AND DISCLAIMER
- Limited Warranty. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
- WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY provided in section 9.1, ALL PODIUM PRODUCTS AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER PODIUM NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. PODIUM MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT PODIUM PRODUCT AND PODIUM TECHNOLOGY WILL MEET PARTNER OR END USER’S REQUIREMENTS OR EXPECTATIONS, THAT END USER DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT PODIUM TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. PODIUM WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY END USER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-PODIUM SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF END USER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY END USER BASED UPON PODIUM TECHNOLOGY OR PODIUM’S RELATED PRODUCTS (INCLUDING CHANGES TO END USER PROPERTIES). THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. PARTNER OR END USER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
- INFRINGEMENT INDEMNIFICATION
- Infringement Defense. Podium will defend Partner from any actual or threatened third party claim that the Podium Products infringe or misappropriate any U.S. patent issued as of the Effective Date if: (a) Partner gives Podium prompt written notice of the claim; (b) Podium has full and complete control over the defense and settlement of the claim; (c) Partner provides assistance in connection with the defense and settlement of the claim as Podium may reasonably request; and (d) Partner complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
- Infringement Indemnification. Podium will indemnify Partner against: (a) all damages, costs, and attorneys’ fees finally awarded against Partner in any proceeding under Section 12.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Partner in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Podium’s consent after Podium has accepted defense of such claim); and (c) if any proceeding arising under Section 12.1 is settled, all amounts paid to any third party as agreed to by Podium in settlement of any such claims.
- Mitigation of Infringement Action. If permitted use of the Podium Products are, or in Podium’s reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 12.1, then Podium will either: (a) procure the continuing right to use of the Podium Products; (b) replace or modify the Podium Products in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Podium is unable to do either (a) or (b), Podium will (c) terminate the licenses with respect to the Podium Products subject to the infringement claim and refund to Partner all unused fees pre-paid by Partner (if any).
- Exceptions. Podium will have no obligation under this Section 12 for any alleged infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Podium Products in combination with other products if such alleged infringement or misappropriation would not have arisen but for such combination; (b) Podium Products that are provided to comply with designs, requirements, or specifications required by or provided by Partner, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of Podium Products for purposes not intended; (d) failure to use Podium Products in accordance with instructions provided by Podium, if the alleged infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Podium Products not made or authorized in writing by Podium where such alleged infringement or misappropriation would not have occurred absent such modification. Partner is responsible for any costs or damages that result from these actions.
- Exclusive Remedy. This Section 12 states Podium’s sole and exclusive liability, and Partner’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Podium Products.
- PARTNER INDEMNIFICATION
- Defense of Claims. Partner will defend Podium from any actual or threatened third party claim arising out of or based upon (i) Partner’s negligence or willful misconduct or (ii) Partner’s breach of any of the provisions of this Agreement. Podium will: (a) give Partner prompt written notice of the claim; (b) grant Partner full and complete control over the defense and settlement of the claim; (c) assist Partner with the defense and settlement of the claim as Partner may reasonably request and at Partner’s expense; and (d) comply with any settlement or court order made in connection with the claim.
- Indemnification. Partner will indemnify Podium against: (a) all damages, costs, and attorneys’ fees finally awarded against Podium in any proceeding under Section 13.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Podium in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Partner’s consent after Partner has accepted defense of such claim); and (c) if any proceeding arising under Section 11.1 is settled, Partner will pay any amounts to any third party agreed to by Partner in settlement of any such claims.
- INSURANCE
- Required Coverage. During the Term of this Agreement, Partner, at its sole cost and expense, will carry and maintain insurance with a reputable company or companies insuring such party, its agents, employees, and associates from general liability, specifically covering personal and bodily injury and property damage. Partner must obtain insurance with limits reasonable for a company such as Partner.
- Proof of Insurance. Upon written request, Partner will provide Podium with a Certificate of Insurance stating that the foregoing insurance policies are in full force and effect. Partner will require each insurer to give Partner 30 days’ written notice before the policy or policies are canceled or materially altered.
- CONFIDENTIAL INFORMATION
- Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the Term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
- Restricted Use and Nondisclosure. During and after the Term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement, and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 15; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
- Required Disclosure. If either party is required by law to disclose the Confidential Information or the Terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
- Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other or destroy all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
- LIMITATION OF LIABILITY
- Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PODIUM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO PARTNER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF PODIUM IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL PODIUM’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY PARTNER TO PODIUM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PODIUM TO PARTNER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- GENERAL
- Independent Contractors. Although the term “partner” is used throughout the Agreement, the relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
- Assignability. Partner may not assign its right, duties, or obligations under this Agreement without Podium’s prior written consent, except in connection with a merger, acquisition or sale or exclusive license of all or substantially all of Partner’s assets to a party that could not reasonably be deemed a competitor of Podium. If consent is given, this Agreement will bind Partner’s successors and assigns. Any attempt by Partner to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
- Nonsolicitation; Noncompetition. During the Term of this Agreement and for a period of one year thereafter, Partner will not, directly or indirectly, employ or solicit the employment or services of an employee or independent contractor of Podium without the prior written consent of Podium. During the Term of this Agreement and for a period of six months thereafter, neither party hereto will solicit any Lead (as defined below) of the other party to cease doing business with such other party; provided, however, that this sentence shall not limit the ability of a party to continue servicing such Lead with respect to services performed by such party during the Term of this Agreement. An End User shall be a “Lead” of a party, where such party introduces the other party to such Lead for purposes of entering into an End User Agreement, and where such End User Agreement is consummated with such Lead.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing. Either party may change its address, including designated email address, for receipt of notice by notice to the other party in accordance with this Section.
- Amendments; Waivers. Podium may update or modify these Terms (including referenced policies and other documents) from time to time by posting a revised version on the Website or Service or by notification via the email associated with your account. You may also be required to click through the updated Terms to show acceptance. In any event, subject to the terms of your specific Agreement, the modified terms will become effective upon posting or notification and continued use of the Service or Website, following the update, shall constitute acceptance of the updated Agreement. If End User does not agree to the updated Agreement after it takes effect, End User will no longer have the right to use the Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
- Force Majeure. Podium will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Podium’s reasonable control, so long as Podium uses commercially reasonable efforts to avoid or remove such causes of non-performance.
- Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Podium’s corporate policies regarding foreign business practices, Partner and its employees and agents shall not directly or indirectly make and offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government, including the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Podium in obtaining, retaining, or directing any such business.
- Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Utah, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any claims arising out of or relating in any way to this Agreement must be resolved exclusively by a state or federal court located in the city of Salt Lake City, UT, and Partner agrees to submit to personal jurisdiction in any such court.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Partner under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
- Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits, if any. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
- Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile or other electronic transmission and such execution and delivery will have the same force and effect of an original document with original signatures.
- Entire Agreement. This Agreement, including all exhibits and the applicable Podium Certified Reseller Agreement, is the final and complete expression of the agreement between these parties regarding the licensing of the Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Podium has any authority to bind Podium with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
Other terms are defined in other Sections of this Agreement.
(Updated on January 14, 2019)