UNANET PARTNER PROGRAM TERMS & CONDITIONS
These Unanet Partner Program Terms & Conditions (the “Terms”) contain the terms and conditions that govern participation by a partner (each, a “Partner”) in the Unanet partner program (“Partner Program”). Unanet, Inc. (“Unanet”) and Partner are parties to an applicable Partner Agreement, which together with these Terms, is referred to as the “Agreement.” These Terms take effect when Partner and Unanet sign a Partner Agreement (the “Effective Date”). Partner represents to Unanet that it is lawfully able to enter into the Agreement and represents to Unanet that it has legal authority to bind the Partner to the Agreement. Partner and Unanet shall be referred to as “parties” and each a “party.”
1 Unanet Partner Program.
1.1 To join the Partner Program, Partner shall agree to and be bound by the appropriate partner agreement (“Partner Agreement”) for either (A) Reseller Partners, (B) Business Process Outsource (BPO) Partners, (C) Services Partner, (D) Technology Partners, or (E) Referral Partners, with Unanet, which shall be governed by and incorporate by reference these Terms.
1.2 The “Unanet Services” are defined as a suite of web-based professional service automation software applications (the “Software”), which permit the processing, retrieval, data encryption, access, storage, and transmission of data submitted by the Customer of the Unanet Services.
1.3 “Customer” shall refer to customers that subscribe to and purchase the Unanet Services pursuant to a validly executed Order Form with Unanet.
2 Partner Obligations and Restrictions.
2.1 Partner hereby agrees to the following obligations and restrictions:
2.1.1 Partner shall abide by these Terms at all times during the Term of the Agreement;
2.1.2 Partner shall be responsible for its own expenses and costs incurred in connection with its participation in the Partner Program and its performance under the Agreement;
2.1.3 Partner shall not engage in any marketing or advertising efforts that are misleading or disparaging of the Unanet name, trademarks, service marks, logos, or any variations thereof; and
2.1.4 Partner shall not make any representations, warranties, guarantees, indemnities, similar claims, or other commitments on behalf of Unanet to any Customer or engage in any unfair, competitive, misleading, or deceptive practices respecting Unanet or its Marks or the Unanet Services.
2.2 Partner shall, in good faith and at its own expense:
2.2.1 Market, advertise, promote, resell, and implement the Unanet Services to end users consistent with good business practice and using, in each case, its commercially reasonable efforts to maximize the sales of the Unanet Services;
2.2.2 Only resell or implement Unanet Services as currently provided by Unanet;
2.2.3 Develop and execute a marketing plan sufficient to fulfill its obligations under this Agreement:
2.2.4 Have sufficient knowledge of the industry and competitive products and services;
2.2.5 Observe all reasonable directions and instructions provided by Unanet in relation to the marketing and promotion of the Unanet Services to the extent such marketing and promotion uses the Unanet Marks.
2.3 Partner shall not use the Unanet Services for any purposes beyond the scope of the license granted in the applicable Partner Program Agreement. Partner further agrees not to: (a) disclose to third parties the results of any benchmarking or other tests performed in connection with the Unanet Services without Unanet’s prior written consent; (b) use or reference any Unanet Services or related information or materials to develop or promote a competing product, or (c) otherwise use, copy or distribute the Unanet Services except as expressly allowed hereunder.
2.4 All uses of the Unanet Marks and all goodwill associated therewith will inure solely to the benefit of Unanet.
2.5 At all times, Partner will comply with all laws, rules, ordinances, decrees, and regulations applicable to its activities under this Agreement. Partner will indemnify, defend, and hold Unanet and its officers, directors, and employees harmless for any costs, expenses, injury, and damage caused as a result of Partner’s failure to comply with applicable laws, rules, ordinances, decrees, and regulations.
3 No Franchise or Business Opportunity Agreement. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Unanet and Partner. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Partner has the sole discretion to determine Partner’s methods of operation, Partner’s accounting practices and personnel practices, and Partner’s service areas and methods.
4 Amendment of these Terms and the Partner Agreement. Unanet reserves the right to modify these Terms, or its policies relating to the Agreement at any time, effective upon posting of an updated version of these Terms and providing notice to the Partner either via email or electronically in the Partner portal. Continued use of the Unanet Partner portal and providing services under the Agreement or continued use of the Unanet Services after any such changes will constitute Partner’s consent to such changes and the modified Terms. No amendment to or modification of the Partner Agreement is effective unless it is in writing signed by authorized representatives of both parties.
5 Assignment. Partner will not assign this Agreement in whole or in part without Unanet’s prior written consent. Any change in control of Partner resulting from a merger, consolidation, stock transfer or asset sale will be deemed an assignment or transfer for purposes of this Agreement that requires Unanet’s prior written consent. Unanet may assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of Partner. This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
6 Intellectual Property Ownership. Unanet retains the ownership of all rights, title, and interest in and to the Unanet Services, Software, Marks, and confidential information of Unanet and all patents, copyrights, and other proprietary rights therein. Any rights not expressly granted are reserved by Unanet. Partner will acquire no rights except as expressly set forth in this Agreement. Unanet will own all rights, title and interest in and to enhancements, and modifications to the Unanet Services and information and any feedback or suggestions provided in connection therewith. Partner hereby assigns any rights it may have or acquire in or to enhancements, modifications, feedback or suggestions relating to the Unanet Services and information, and agrees to execute any documents necessary to give effect to this section. Partner will take no action which may adversely affect or impair Unanet’s ownership of such products, materials and rights. Partner may create derivative works to aid in marketing, sale or implementation of Partner’s client engagements, retaining original Unanet Marks, logos or other identification as acknowledgement of the source materials. These derivative works will remain in the possession of the Partner and may not be made available for resale to other Unanet Partners without Unanet’s express permission.
7 Independent Contractors. Each party will be deemed to be an independent contractor hereunder, and as such, will not be nor hold itself out to be an employee, agent, or other representative of the other party. Nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners, or joint ventures. The term “Partner” and agent is used throughout this Agreement for convenience and is not intended to denote a legal status other than that of an independent contractor with the rights and obligations expressly described in this Agreement. Each party will be free to manage and control its business as it sees fit. Neither party will have, nor represent itself to have, any authority to bind the other party or act on its behalf, and in no case will Partner have any authority to make or accept any offers, contracts, licenses, or representations on behalf of Unanet. Partner agrees to provide any documentation necessary for Unanet to make proper payment to Partner for referral or other fees, including completing a W-9 and/or similar documentation, and to be responsible for any tax consequence or obligation resulting from receipt of any such referral or other fee. Either party may enter into relationships or arrangements with various third parties on terms that may be similar to, or materially different from, those contained in this Agreement. The relationship between Partner and Unanet is non-exclusive.
8 Non-Disclosure and Confidentiality. Each party agrees to protect the Confidential Information of the other party that is disclosed or made available or accessed by the other party. Confidential Information includes any information or materials identified as such or reasonably understood to be confidential or proprietary to the other party, including software products, commissions, margins, Unanet pricing, services pricing, confidential Customer information and non-public information on Unanet, Unanet Services, and Customer information accessed through the sales, marketing, professional services, and support of Unanet Services. Once a Customer or potential Customer is registered with Unanet or becomes a Unanet Customer, that Customer’s information will not be considered Partner’s Confidential Information and may be used by Unanet during or after the term. The party receiving the Confidential Information (the “Receiving Party”) will (a) hold the Confidential Information in confidence using commercially reasonable efforts; (b) restrict the disclosure of the Confidential Information solely to those with need to know for purposes of fulfilling obligations under this Agreement and that have agreed to be bound by confidentiality restrictions substantially similar to those set forth herein; and (c) use the Confidential Information only in connection with its rights and obligations under this Agreement. Failure to comply with terms in this Agreement may result in termination of Partner Agreement. Upon request, the Receiving Party will return any Confidential Information of the other party that was received in tangible form to the disclosing party or destroy such Confidential Information, unless the Receiving Party has a right to such information under this Agreement.
For purposes of the Agreement, “Confidential Information” shall be defined as non-public information of a party to the Agreement, including without limitation non-public financial data, employee data, customer data, product information, sales reports, sales pipeline information, marketing data, statistical data, and analysis of any of the foregoing. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the recipient; (ii) the disclosing party regularly discloses to third parties without restriction on disclosure; (iii) the recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation, or (iv) is independently developed by the recipient without use of any Confidential Information of the disclosing party.
9 Non-solicitation. During the Term this Agreement is in effect and for a period of twelve (12) months thereafter, neither party will solicit, engage, or hire 1) any employee or contractor then currently employed or engaged by the other party, or 2) any former employee or contractor participating in the Agreement within the prior 12-month period. This section will not apply to any individual who responds to general job solicitations or postings that are not targeted at employees currently or previously employed by either party.
10 Customer Retention. During the Term of this Agreement and for a period of twelve (12) months thereafter, Partner covenants and agrees that it will not, directly or indirectly, on behalf of itself or any other person or entity, contact or solicit any Customer developed by or which Partner has a relationship with pursuant to this Agreement, for the purpose of providing any services that are currently provided by Unanet or contemplated by Unanet. The parties agree and acknowledge that the restrictive covenants set forth in section 9 and this section 10 are a material inducement for each party to enter into this Agreement and perform its obligations under the Agreement.
11 Complete Agreement; Survival. All previous agreements and arrangements (if any) made between Unanet and Partner relating to the subject matter hereof are hereby superseded and terminated and this Agreement embodies the entire understanding of the parties, there being no promises, terms, conditions or obligations, oral or written, express or implied, other than those contained herein. The representations and warranties of the parties contained herein shall survive termination or cancellation of this Agreement, as well as any other provision that, to give proper effect to its intent, should survive such termination or cancellation of this Agreement. The headings in this Agreement are for reference only and do not affect the interpretation of the Agreement.
12 Representations & Warranties; Disclaimer.
12.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that the Agreement is validly authorized and executed by the representative entering into the Agreement, and constitutes the valid, legal, and binding obligation of such party, enforceable against such party in accordance with its terms. Each party represents and warrants that it will perform its obligations under this Agreement in a manner consistent with general industry standards reasonably applicable to the provision thereof. Partner represents and warrants that it has not falsely identified itself nor provided any false information in connection with this Agreement.
12.2 Unanet shall make certain limited warranties regarding the Unanet Services solely to and for the Customer’s benefit, which are included in the services agreement with the end Customer. Such warranty does not extend to Partner under this Agreement. Such warranties do not apply where the Unanet Services have been used with any third-party products or systems not approved by Unanet.
12.3 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, INTEGRATION, PERFORMANCE AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN NO EVENT DOES UNANET WARRANT THAT UNANET SERVICES WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE FREE OF DEFECTS OR ERRORS, OR NOT RESULT IN A VULNERABILITY TO INTRUSION OR ATTACK. UNANET FURTHER DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE UNANET SERVICES ARE COMPATIBLE WITH ANY COMBINATION OF NON-UNANET SERVICES OR PRODUCTS. PARTNER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY UANNET OR ANY PERSON ON UNANET’S BEHALF.
13 Limitation of Liability
13.1 IN NO EVENT WILL UNANET BE LIABLE TO PARTNER, ANY CUSTOMER, OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, LOST SAVINGS, LOSS OF PRODUCTIVITY, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF UNANET HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL UNANET’S TOTAL LIABILITY TO PARTNER IN CONTRACT, TORT OR OTHERWISE ARISING OUT OF, IN CONNECTION WITH OR IN RELATION TO THE UNANET SERVICES OR SOFTWARE, PROFESSIONAL SERVICES, MAINTENANCE AND SUPPORT SERVICES OR OTHERWISE UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE UNDER THIS AGREEMENT TO UNANET IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
13.2 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS WILL NOT BE DEEMED TO LIMIT ANY LIABILITY TO AN EXTENT THAT WOULD NOT BE PERMITTED UNDER APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.
14.1 Partner Indemnification. Partner shall indemnify, hold harmless, and defend Unanet and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, the “Indemnified Parties”) against any and all losses, damages, liabilities, claims, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of any kind, including reasonable attorneys’ fees, and for the cost of enforcing any right to indemnification under this Agreement (collectively the “Losses”) arising out of or relating to any claim of a third party relating to (i) a breach or non-fulfillment of any representation or warranty of Partner in this Agreement; (ii) any negligent act or omission of Partner or its personnel in connection with its performance under this Agreement; (iii) alleging or relating to any bodily injury, death of any person or damage to property caused by the acts or omissions of Partner or its personnel; or (iv) relating to a purchase of Unanet Services through Partner and not directly relating to a claim of breach of Unanet’s warranties to its Customer.
14.2 Intellectual Property Indemnification. Unanet shall indemnify, defend, and hold harmless Partner and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and permitted assigns (the “Partner Indemnified Parties”) from and against all Losses awarded against Partner arising out of any claim of a third party alleging that the Unanet Services infringes any intellectual property right of a third party; provided that (x) Partner notifies Unanet promptly in writing of the third party claim; (y) Partner provides Unanet with all assistance, information, and cooperation reasonably requested to defend or settle such claim; and (z) Unanet has exclusive control of the defense and negotiations related to any such claim and its settlement. Notwithstanding anything to the contrary in this Agreement, Unanet is not obligated to indemnify or defend Partner or the Partner Indemnified Parties if the claim or corresponding Losses arise out of or result from, in whole or part: (i) Partner’s marketing, advertising, promotion, or sale of Unanet Services under this Agreement or in any way not authorized by this Agreement; (ii) use of the Unanet Services purchased in combination with any products, services, or equipment supplied to the end Customer by a person other than Unanet if the infringement would have been avoided by the use of the services not so combined; or (iii) any modifications or changes made to the Unanet Services by or on behalf of any person other than Unanet or its authorized representatives. THIS SECTION 17 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY FOR LOSSES COVERED UNDER THIS SECTION. Unanet will have the right at its sole expense to (i) modify Unanet Products to avoid infringement or substitute other non-infringing Unanet Products with the same or similar functionality; (ii) obtain a license for the continued use of the Unanet Products at no cost to Partner; or (iii) demand the return of the Unanet Products and terminate this Agreement. This infringement indemnity states Unanet’s entire and exclusive liability and Partner’s sole and exclusive remedy for any claim of infringement of third-party patent, copyright, trademark, trade secret or other intellectual property rights.
15 Notices. Unless otherwise set forth in the Agreement, any legal notice required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by email or facsimile, provided a confirmation of transmission is produced and a copy of the notice is promptly sent by another means specified in this section; or (iii) when delivered if delivered personally or sent by express courier service. All notices will be sent to the other party at the address provided in the Partner Agreement or at such other address as the party may specify in a notice given in accordance with this Section.
16 Force Majeure. Neither party will be liable for loss, damage, detention, or delay due to war, riots, civil insurrection or acts of the common enemy, fire, flood, strikes, acts of civil or military authority (including governmental laws, orders, priorities or regulations), embargos, the public internet, telecommunications or utility providers, or other causes beyond the reasonable control of such party. In case of delay in performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time as may be necessary to properly reflect the delay.
17 Dispute Resolution. At the written request of either party, the parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this section. Each party will appoint a senior management representative to manage dispute resolution. The representatives will furnish to each other all non-privileged information with respect to the dispute that the parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) the designated representatives conclude that resolution through continued negotiation does not appear likely; or (ii) thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.
18 Equitable Relief. Each party acknowledges and agrees that, at any time, Unanet may seek injunctive relief if Partner attempts to use, license, or convey any items supplied by Unanet hereunder, in a manner contrary to the terms of this Agreement or in derogation of Unanet’s proprietary rights, whether these rights are explicitly herein stated, determined by law, or otherwise, without any requirement to post a bond or prove actual damages. Partner agrees that it shall not oppose the seeking of such equitable or injunctive relief under this section.
19 Cause of Action. No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party more than two (2) years after the accrual of the cause of action, except that (i) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and (ii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due.
20 Governing Law and Consent to Jurisdiction. The Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to any provision of Virginia law that would require or permit the application of the substantive law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state courts located in Fairfax County, Virginia and federal court located in the Eastern District of Virginia, Alexandria Division. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISIGN OUT OF OR RELATING TO THE AGREEMENT.
21 Severability; No Waiver. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. No waiver under the Agreement is effective unless it is in writing and signed by an authorized representative of the party waiving its right. Any waiver is effective only in that instance and does not operate as a waiver on any future occasion.