TENFOLD PARTNER AGREEMENT
Last Updated 2020-04-06
This Agreement, together with the applicable Tenfold Order Form (“Order”), applicable Statement of Work (“SOW”), and the documents that we incorporate by making reference to them here (collectively, this “Agreement“), whether by “clicking to accept” or signing applicable documents, is a legal and binding agreement. For the avoidance of doubt, this Agreement shall serve as the master agreement and governing document with respect to each Order and SOW. In the event of a conflict between this Agreement and an Order and/or SOW, this Agreement controls.
WHEREAS, Partner and Tenfold wish to create a relationship to facilitate collaboration in connection with Tenfold Services. The relationship could take various forms such as opportunity referrals, resale of Tenfold Services, use of Tenfold Services in Partners managed service offerings or embed Tenfold Services into Partners applications that are sold to End Users.
NOW, THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows:
The following terms have the meanings ascribed to them when used in this Agreement or in any Statement of Work (defined below) or Tenfold Order Form (defined below). Other terms, when capitalized, have the meanings defined elsewhere in this Agreement.
“Affiliate” means an entity that controls, is controlled by, or is under common control with, a Party to this Agreement. For purposes of this definition, “control” means the ownership of fifty percent (50%) or greater of the voting securities or assets of an entity.
“Authorized Area” means the geographical area in which the Partner is allowed to represent Tenfold to End Users.
“Authorized User” means End User(s) and anyone else given access to the Tenfold Services to use on behalf of the End User by Partner or End User. Partner shall be liable for any breach of the Agreement by any Authorized User.
“End User” means the Partner’s end-user customers and their respective end-users.
“End User Content” means any uploaded or inputted text, images, photos, videos, sounds, links, works of authorship, or other materials to the Tenfold Services.
“Partner End User Agreement” means an agreed upon and legally binding written agreement between Partner and End User that is no less restrictive and no less protective of Tenfold’s rights than the terms of this Agreement to be entered into before any Tenfold Services are provisioned.
“SaaS Offering” Tenfold’s software-as-a-service (SaaS).
“Software” means a set of managed services, which may include certain data integrations and customer experience tools via software products that are deployed on Partner’s premise.
“Statement of Work” (“SOW”) means a written instrument which sets forth the Deliverables in the performance of the Tenfold Services, and once executed by the authorized Representatives of both Parties, forms an integral part of this Agreement.
“Tenfold Order Form” (“Order”) means the document in which all the Tenfold Services that are contracted to be performed by Tenfold or its Affiliates under this Agreement.
“Tenfold Partner Program Guide” (“Program Guide”) means the officially published Tenfold document that contains the requirements and benefits of the Tenfold Partner Program.
“Tenfold Partner Portal” means the portal where the Partner will submit Tenfold opportunities.
“Tenfold Services” means collectively the Software and SaaS Offering.
“Tenfold Services Pricing” means the pricing specified for each of the Tenfold Services that Partner can resell to End User(s) as specified in the applicable Exhibit.
“Trademarks” means all names, marks, logos, designs, trade dress, and other brand designations used by a Party in connection with its products and services.
a. Generally. Tenfold and Partner will work together in good faith to find opportunities to collaborate on mutually beneficial terms. Such collaboration may take the form of the relationships described in the Tenfold Partner Program Guide (“Program Guide”) in effect from time to time. Except as expressly set forth herein in connection with Referral Fees, the relationships described in the Program Guide require the entering into of additional agreements in order to be effective. The Program Guide is subject to change without notice.
b. Training. To facilitate their collaboration, each Party may make available to the other training on its products and services, on such terms as the Parties may agree. As part of the training, a Party may provide documents, materials or information, either tangible or intangible (“Materials”). The providing Party shall retain all right, title and interest in and to any such Materials, and the receiving Party shall have no right to reproduce, copy or make derivative works of, any Materials provided by the other.
c. Evaluation Licenses. To facilitate their collaboration, each Party may make available to the other a product for demonstration and education purposes. Any such arrangement will require the entering into of an evaluation or demonstration license agreement. This Agreement does not grant any license or other right of any nature whatsoever.
d. Equipment. Each Party will be responsible for supplying all equipment, facilities and personnel necessary or desirable in connection with its activities hereunder.
e. Referral Fees. Tenfold may provide referral fees, as defined in the Referral Terms Exhibit, which are subject to change from time to time at Tenfold’s discretion. Partner will be notified of any subsequent changes.
f. Opportunity Registration. All opportunities must be registered by Partner in the Tenfold Partner Portal. The Tenfold team will review all opportunities within five (5) business days and will notify Partner via email whether the opportunity has been approved or denied. Denial of any opportunities will not be unreasonably withheld by Tenfold unless Tenfold is already in discussions with potential End User, Tenfold requires more information from Partner in order to qualify the opportunity, or Tenfold makes a business decision that the potential End User is not an End User Tenfold wishes to have access to the Tenfold Services. It is expected that the Partner will have made a significant pre-sales effort to qualify the opportunity, understand who the key decision makers are, and help the customer with any initial project scoping, all of which should, upon request by Tenfold, be readily available. Once approved, the Opportunity Registration will remain valid for one hundred eighty (180) days. Should the opportunity not be completed, at one hundred fifty (150) days Tenfold will review the opportunity to determine if it should be extended. An opportunity is considered completed once a signed Tenfold Order Form is submitted by Partner to Tenfold for Tenfold Services (“Opportunity Completion”).
g. Permits, Licenses, and Compliance with Laws. Each Party will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules, and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, each Party will comply with all applicable export laws.
h. Reservation of Rights.
i. Products. Each Party reserves all right, title and interest in and to, its own products; the right to promote, market, and distribute its own products; and the right to appoint third parties to advertise, promote, market, and distribute its own products worldwide.
ii. Website Listing. Subject to Section 10 below, each Party consents to the listing of its business name, logos, address, phone number, and website addresses in such advertising and promotional materials used by the other Party.
iii. Promotional Materials. Neither Party may distribute any promotional materials with respect to the other Party or the other Party’s products without such other Party’s prior, written approval of such materials. During the term of this Agreement, either Party may provide to the other Party promotional materials with respect to its products. Neither Party may use such promotional materials for any purpose other than advertising and promoting the Tenfold Services to End Users.
3. TERM OF AGREEMENT; TERMINATION.
a. Term. Unless earlier terminated, this Agreement is made as of the Effective Date and shall continue for so long as active exhibits are in force.
b. Termination. This Agreement may be terminated, upon the occurrence of any of the following events:
i. by either Party, if the other Party has breached any covenant, obligation or term under this Agreement and the breach remains uncured for a period of thirty (30) days after written notice of the breach is received by the other Party.
ii. by either Party, upon prior written notice to the other Party if (i) the other Party dissolves or becomes insolvent or bankrupt, (ii) the other Party makes an assignment for the benefit of creditors, (iii) the other Party suspends the transaction of its usual business (in the absence of a successor) or consents to the appointment of a trustee or receiver, (iv) a trustee or receiver of the other Party is appointed, or (v) any bankruptcy, reorganization, insolvency or similar proceeding is instituted by or against the other Party and not dismissed within thirty (30) days.
4. INTELLECTUAL PROPERTY RIGHTS.
a. Ownership of Products. Nothing in this Agreement is intended to change or alter Tenfold’s ownership rights to its intellectual property. Tenfold shall retain ownership and all right, title, and interest in and to the Tenfold Services, SaaS Offering, and the Software, hardware, computer coding, algorithms, Confidential Information and other Intellectual Property Rights comprising the Tenfold Services and any modifications, improvements, enhancements or derivative works thereof, whether created by Partner or Tenfold. Nothing in this Agreement is intended to change or alter Partner’s ownership rights to its intellectual property created prior to and not in connection with any agreement which may in the future be entered into by the Parties. Except as specifically set forth herein, Partner shall retain its existing ownership and right, title and interest in and to its products, software, hardware, computer coding, algorithms, Confidential Information and other existing Intellectual Property created prior to and not in connection with any such other agreement (“Partner IP”).
b. Restrictions. Except as expressly permitted herein, Partner and any End User(s) may not: (i) modify, disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code of the Tenfold Services or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Tenfold Services), (ii) use the Tenfold Services in any manner to provide service bureau, time-sharing or other computer services to third parties, (iii) use the Tenfold Services, or allow the transfer, transmission, export, or re-export of the Tenfold Services or portion thereof in violation of any export control laws or regulations administered by any government agency, (iv) resell, distribute or otherwise transfer the Tenfold Services, and code comprising the same, or any Tenfold trademark, logo or likeness, or (v) use the Tenfold Services to develop competing products or services. Any attempt to do so is a violation of the rights of Tenfold and its licensors and will be considered a material breach of this Agreement. If Tenfold, acting reasonably, determines that the use of the Tenfold Services by Partner or Partner’s End Users (a) fails to conform with the terms and conditions of this Agreement or the Partner End User Agreement (or any Tenfold policy), or (b) interferes with Tenfold’s ability to provide the Tenfold Services to Partner, End Users or any other customers of Tenfold, then Tenfold may, upon notice to Partner, immediately suspend the Tenfold Services until such non-conformity or interference is cured.
a. “Confidential Information” means all information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), excluding any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Receiving Party at the time of its receipt from the Disclosing Party, (iii) is received on a non-confidential basis from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of or reliance on any of the Confidential Information of the Disclosing Party. The Receiving Party hereby agrees to hold Confidential Information of the Disclosing Party in strict confidence, and to protect such Confidential Information using the same standard of care that it uses to protect its own confidential or proprietary information of a similar nature, but in no case less than a reasonable standard of care; provided, however, that Partner is solely responsible for the confidentiality and protection of End User account information. Upon the written request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information of the Disclosing Party in its control or possession. Notwithstanding the foregoing, the Receiving Party may retain, subject to the confidentiality obligations hereunder (y) Confidential Information of the Disclosing Party or electronic records containing such Confidential Information for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes; and (z) copies of the Confidential Information of the Disclosing Party which the Receiving Party may be required to maintain under applicable law or regulation or for internal auditing and compliance purposes.
b. Except as expressly permitted by this Section, the Receiving Party agrees not to use or disclose any Confidential Information of the Disclosing Party for any purpose. Notwithstanding the foregoing, Tenfold may (i) use Partner’s Confidential Information as necessary for the provision of the Tenfold Services or (ii) disclose Partner’s Confidential Information on a “need to know” basis to its affiliates and to its and their employees, officers, subcontractors, and other agents, provided that such Party’s are subject to written confidentiality agreements. In addition, if the Receiving Party is required by applicable law, regulation or legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party may disclose such Confidential Information only if the Receiving Party has, to the extent legally permissible, promptly provided the Disclosing Party with prior written notice in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section.
c. The Receiving Party acknowledges that any breach of the confidentiality obligations hereunder would cause irreparable harm to the Disclosing Party for which no adequate remedy at law exists, and the Receiving Party therefore agrees that, in addition to any other remedies available, the Disclosing Party shall be entitled to seek injunctive relief as a remedy for such breach without the necessity of posting a bond or proving actual damages.
a. Indemnification by Tenfold. Tenfold will indemnify, defend, and hold harmless Partner from and against any and all claims, damages, and expenses (including reasonable attorneys’ fees and costs of litigation) by any third party resulting from any claim of United States patent, trade secret or copyright infringement asserted against Partner by virtue of use of Tenfold Confidential Information in strict accordance with this Agreement, provided that: (i) Tenfold is given prompt written notice of any such claim; (ii) Tenfold has the right to control and direct the defense of such claim and (iii) Partner shall fully cooperate with Tenfold in any such defense. Tenfold shall have no liability for any claim of infringement that results from any modification not authorized in writing by Tenfold. In the event that any of Tenfold’s products, including but not limited to the Tenfold Services, or Confidential Information, in Tenfold’s opinion, is likely to or does become the subject of a claim of infringement, Tenfold shall advise Partner in writing to cease any further use of same, and Partner will immediately comply with such direction. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF TENFOLD WITH RESPECT TO ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS, OR CLAIMS OF INFRINGEMENT BY THE TENFOLD’S PRODUCTS, INCLUDING BUT NOT LIMITED TO, THE TENFOLD SERVICE’S, OR ANY PART THEREOF, OR CONFIDENTIAL INFORMATION.
b. Indemnification by Partner. Partner will indemnify, defend, and hold harmless Tenfold from and against any and all claims, damages, and expenses (including reasonable attorneys’ fees and costs of litigation) by any third party or End User resulting from any willful or negligent acts or omissions of Partner relating to its activities in connection with this Agreement or resulting from any claim of United States patent, trade secret or copyright infringement asserted against Tenfold by virtue of use of the Partner confidential information or any product or technology (including without limitation Partner IP) provided by Partner, regardless of the form of action.
Each Party represents and warrants to the other Party that it has the requisite power and authority to enter into this Agreement and to carry out all activities and transactions contemplated hereunder. Tenfold further represents and warrants that Tenfold shall provide the Tenfold Services in a professional and workmanlike manner and in accordance with applicable industry standards. Partner further represents and warrants that it shall obtain all consents required by applicable law or regulation for the recording of any voice or video calls prior to recording such calls. EXCEPT FOR THE FOREGOING WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TENFOLD SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TENFOLD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. TENFOLD DOES NOT WARRANT AGAINST INTERFERENCE WITH PARTNER’S ENJOYMENT OF THE TENFOLD SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE TENFOLD SERVICES WILL MEET PARTNER’S REQUIREMENTS, THAT THE OPERATION OF THE TENFOLD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE TENFOLD SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT TENFOLD GIVES SHALL CREATE A WARRANTY.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT THAT PAID BY PARTNER FOR THE TENFOLD SERVICES, IF ANY, IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. THE LIMITATION IN THE IMMEDIATELY PRECEDING SENTENCE WILL NOT APPLY TO VIOLATIONS OF SECTION 4 (CONFIDENTIAL INFORMATION) OR THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 5.
9. ANTI-CORRUPTION LAWS.
Partner warrants that it, and its employees, sub-partners, and representatives, have not and will not, directly or indirectly, offer, pay, give promise, or authorize the payment of any money, gift or anything of value to: (i) any Government Official, or (ii) any person while Partner knows or has reason to know that all or a portion of such money, gift or thing of value will be offered, paid or given, directly or indirectly, to any Government Official, for the purpose of (w) influencing an act or decision of the Government Official in his or her official capacity, (x) inducing the Government Official to do or omit to do any act in violation of the lawful duty of such official, (y) securing an improper advantage, or (z) inducing the Government Official to use his or her influence to affect or influence any act or decision of a government or instrumentality, in order to assist Company or any of its affiliates in obtaining or retaining business. Partner’s breach of any of the above provisions will allow Tenfold to immediately terminate the Agreement.
Tenfold has made no commitments or promises orally or in writing with respect to delivery or any future software features or functions. In relation to any future software features or functions, all presentations, request for proposal responses, and/or product roadmap documents, information or discussions, either prior to or following the Effective Date, are for informational purposes only, and Tenfold shall have no obligation to provide any future releases or upgrades or any features, enhancements, or functions unless specifically agreed to in writing by both Parties. Partner acknowledges that no decisions are based on any future software features or functionality.
In performing its obligations under this Agreement, each Party may refer to the other Party’s product by the associated Trademark, provided that such reference is not misleading and complies with any guidelines issued by the Trademark owner. Neither Party is granted any right, title or license to, or interest in, any of the other Party’s Trademarks, except for the limited license granted in this Section 9. Each Party acknowledges and agrees that any use of a first Party’s Trademarks by the second Party will inure to the sole benefit of the first Party.
All notices and communications under this Agreement shall be in writing and given by personal delivery, recognized national overnight courier service, or by United States registered or certified mail, return receipt requested, in each case, addressed to the Parties as follows (or to such other addresses as the Parties may request in writing by notice given pursuant to this Section): to Callinze at Tenfold, Attn: Legal Department, 2222 Rio Grande Street, Austin, TX 78705, USA; and to Partner at the Partner address first set forth above. Notice shall be deemed given upon receipt.
a. Independent Contractors. The Parties to this Agreement are independent contractors. This Agreement shall not be deemed to create a partnership, joint venture, agency, or similar relationship between the Parties. Neither Party will have the power to bind or obligate the other Party in any manner whatsoever. Each Party shall be responsible for its own personnel, payroll, taxes and other expenses.
b. Entire Agreement. This Agreement, together with all exhibits hereto, contains the entire agreement and understanding between the Parties relative to the subject matter hereof, and supersedes all other written or oral agreements. This Agreement has been jointly negotiated by the Parties shall not be strictly construed against either Party hereto.
c. Further Assurances. Each Party hereto agrees to execute, acknowledge, and deliver such further instruments, and to do so all such other acts, as may be reasonably necessary or appropriate in order to carry out the purposes and intent of this Agreement.
d. Severability. If any provision of this Agreement shall be declared invalid, illegal or unenforceable for any reason whatsoever, then the remaining terms and provisions of this Agreement shall continue in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein. If any provisions herein are found to be unenforceable on the grounds that they are overly broad or in conflict with applicable laws, then it is the intent of the Parties that such provisions be replaced, reformed or narrowed so that their original business purpose can be accomplished to the extent permitted by law, and that the remaining provisions shall not in any way be affected or impaired thereby.
e. Amendments. This Agreement represents the final understanding of the Parties, and shall not be deemed or construed to have been modified, amended, rescinded, canceled or waived in whole or in part, except by written instrument signed by the Parties hereto.
f. Waiver. No failure on the part of either Party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or a future exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.
g. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that no such consent shall be required for any assignment by a Party to an entity which succeeds to all or substantially all of such Party’s assets, stock, or business whether by merger, sale, or otherwise.
h. No Third Party Rights. Except as specifically provided herein, this Agreement is not intended to, and does not, create any rights in favor of any person not a party hereto.
i. Force Majeure. Except with respect to Partner’s payment obligations and notwithstanding any other provision of this Agreement, a Party shall be excused from any delay or failure in performance of this Agreement to the extent such delay or failure is caused by wildfire, flood, explosion, war, embargo, governmental requirement, civil or military authority, Act of God, or any other causes beyond is reasonable control. Any such delay or failure shall suspend this Agreement until the cause for the delay or failure is removed.
j. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without regard to any principles of conflict of laws.
k. Non-Solicitation. During the term of this Agreement and for one year thereafter, the management of each Party agrees not to actively solicit for employment any employee or representative of the other Party who are involved in the activities covered by this Agreement without the prior written consent of the other Party. This provision shall not restrict general advertisements of employment or the rights of any employee of one Party, on that employee’s own initiative, or in response to a general advertisement, to seek employment from the other Party and under such circumstances, for the other Party to hire such employee.
l. Counterparts. This Agreement may be executed in counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. If this Agreement is executed in counterpart, then no signatory hereto shall be bound until each of the Party’s named below shall have duly executed or caused to be executed a counterpart of this Agreement.
m. Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach.
14. PARTNER OBLIGATIONS.
a. Partner agrees to comply with the policies and requirements set forth in any Exhibits to this Agreement (as well as all other applicable Tenfold partner procedures and policies of which it has been made aware) that further define the resale and use of the Tenfold Services. Partner shall identify and register End Users in accordance with the terms hereof and Tenfold’s applicable policies. Partner shall ensure that (i) prior to access to the Tenfold Services, each End User and/or Authorized User agrees to, a Partner End User Agreement, as well as any other waivers and other agreements and documents reasonably required by Tenfold as a prerequisite to Tenfold’s provision of the Tenfold Services hereunder; (ii) Tenfold shall be a third-party beneficiary of the Partner End User Agreement; (iii) Tenfold Services will only be provided to such End Users and/or Authorized Users; and (iv) End Users comply with and do not breach the terms of the Partner End User Agreement. Partner shall be solely responsible for all terms and conditions in the Partner End User Agreement and shall enforce such agreement in the event of a breach by the End User. Should Tenfold wish to enforce the terms of the Partner End User Agreement in its own name, Partner shall provide Tenfold with all reasonable assistance at Partner’s expense. Partner acknowledges and agrees that the actions of any End Users with respect to the terms of this Agreement and the Tenfold Services will be deemed to be actions by Partner, and that any breach by any End Users of the terms of this Agreement will be deemed to be a breach by Partner.
b. Partner is permitted to obligate End Users to agree to additional terms and conditions, provided that such additional terms and conditions do not conflict with the Partner End User Agreement or this Agreement. Partner hereby represents and warrants that Partner (i) is a bona fide partner and has not entered into this Agreement for the purposes of receiving the Tenfold Services for itself; (ii) has sufficient personnel and resources to promote, support and resell the Tenfold Services; (iii) shall perform its duties and obligations hereunder in a diligent and businesslike manner and refrain from any activity or action that may damage Tenfold’s reputation or the reputation of the Tenfold Services; or (iv) shall use reasonable efforts to promote and sell the Tenfold Services.
c. In connection with its resale of the Tenfold Services, Partner understands and agrees that, in all other respects, it is solely responsible for all order provisioning, billing, collection, billing adjustments/credits, tax collection and payment, service installation, operation and termination, dispute resolution, other service-related requirements and creditworthiness of its End Users, including all legal obligations regarding the provision of Tenfold Services and data protection legal requirements in relation to End Users’ personal data. Tenfold shall have no liability to Partner’s End Users under this Agreement. Partner is responsible for payment for all charges for Tenfold Services ordered by Partner and/or its End Users by Tenfold pursuant to the payment terms set forth herein. This responsibility is not changed by virtue of any (i) use, misuse, fraud, or abuse by Partner, its employees, its End Users or other members of the public of the Tenfold Services or of any Partner-provided systems, equipment, facilities, or services interconnected to such Tenfold Services, (ii) inability to collect payments or charges from Partner’s End Users, Affiliates, agents, brokers or resellers, or (iii) termination of Tenfold Services by the End User.
d. Partner shall comply with all applicable international, national and local laws, regulations, court decisions or administrative rulings applicable to the resale of the Tenfold Services in the relevant jurisdiction, including applicable privacy, and similar laws. Partner assumes (i) sole and exclusive responsibility for enforcing all applicable laws and regulations and the provisions of this Agreement with respect to its End Users, and (ii) any liability arising from violations by it and its agents. In the event Tenfold terminates the provisioning of any resold Tenfold Services to Partner for any reason, including, without limitation, disconnection of Partner for failure to make payment as required herein, Partner shall be solely responsible for providing any and all necessary notice to its End Users of the termination.
e. Partner agrees to cooperate with Tenfold to accomplish Tenfold Service activation for End Users by providing or procuring reasonable access to Partner’s and its End Users’ premises. If applicable, Partner will be responsible for ensuring that its vendors and End Users cooperate with Tenfold or its vendors in connection with the performance by Tenfold of its obligations with respect to the Tenfold Services, including, without limitation, the installation, modification, testing, maintenance and operation of Equipment. Tenfold shall not be liable to any End Users for any damages whatsoever resulting from delays in meeting Tenfold Service delivery dates requested or specified by Partner, or inability to provide the Tenfold Services.
f. For each Tenfold Service ordered by an End User, Partner shall submit to Tenfold an Order within three (3) business days from when Partner receives an order for such Tenfold Service from the End User. Each Order is subject to acceptance by Partner, which shall not be unreasonably withheld or delayed.
g. Partner is solely responsible for any and all marketing, advertising and other costs and expenses of Partner’s office, employees and activities that Partner undertakes in connection with this Agreement.
h. Partner agrees that the End User and its Authorized Users must have valid and verifiable accounts for certain third-party systems or components provided by entities other than Tenfold, such as a CRM (e.g. Salesforce) or a phone system (e.g. Avaya) (“Third-Party System(s)”) in order for such Third-Party Systems to interoperate with the Tenfold Services. Partner is responsible for ensuring that End User (i) may need to license, modify, and/or install the Third-Party Systems and is solely responsible for such activities, (ii) use of the Tenfold Services, including without limitation any integration of Tenfold Services, will not be in violation of any applicable Third-Party Terms, (iii) acknowledges and agrees that Tenfold has no control over the provision of Third-Party Systems or provision of access to the Third-Party Systems by End User’s provider(s), and (iv) Tenfold does not guarantee that End User will be able to use the Tenfold Services with the Third-Party Systems. Tenfold will have no liability whatsoever for any actions or inactions on the part of the provider(s) resulting in End User’s inability to use the Tenfold Services to access End User’s accounts, obtain data, or otherwise use or access the Third-Party Systems.
15. ACCOUNT INFORMATION.
a. Partner agrees to maintain accurate account information by providing updates to Tenfold promptly, but no later than ten (10) days, when any of Partner’s account information requires change, including any relevant account contact information. Failure by Partner, for any reason, to respond within ten (10) days to any inquiries made by Tenfold to determine the validity of information provided by Partner will constitute a material breach of this Agreement. Partner acknowledges and agrees, and expressly consents, that in the event of any dispute regarding access to or legal ownership of any Tenfold account, including Partner’s account or an End User account, Tenfold will resolve such dispute in its sole discretion, acting reasonably. In addition, in the event of such a dispute, Tenfold may immediately suspend, alter or terminate any relevant account or portion thereof. Partner will reimburse Tenfold for any legal and other fees incurred with respect to any dispute regarding control or ownership of Partner’s account or Partner’s account data (which may include the account number, login names or passwords, security information, IP and similar addresses, or other account-related information or materials) (“Data”).
b. Partner acknowledges and agrees that Partner is solely responsible for (i) maintaining the confidentiality and security of Partner’s Data, and (ii) all activities that occur in connection with Partner’s account, whether initiated by Partner, by others on Partner’s behalf or by any other means. Partner will notify Tenfold immediately of any unauthorized use of Partner’s account, Data or any other actual or potential breach of security.
16. USE AND ACCESS RIGHT; RESTRICTIONS. Tenfold grants to Partner, for the duration of the term of the applicable Order(s), a limited, non-exclusive, and non-transferable right to access the Tenfold Services, solely for resale of such Tenfold Services to End Users, in accordance with and subject to the terms and conditions hereof. Neither Partner nor any End User may (nor permit others to) copy, translate, modify or adapt the Tenfold Services, incorporate the Tenfold Services, in whole or any part, into any other product or service, or create derivative works based on the Tenfold Services.
17. AUDIT. Partner agrees to maintain complete and accurate records of all orders, End Users and transactions completed with respect to this Exhibit B, including all order and payment information and all customer information, during the Term and for at least five (5) years following the expiration or termination of this Agreement. Upon ten (10) days advance written notice not more than once per year, Partner shall permit Tenfold or an independent third-party auditor retained by Tenfold to review and audit such records and any other books and records of Partner that relate to Partner’s performance under this Exhibit to ensure Partner’s compliance with its obligations to Tenfold, provided that any such third party auditor signs a non-disclosure agreement with obligations at least as restrictive as the confidentiality obligations contained herein. Any such audit will be conducted during normal business hours on site at Partner’s premises. In addition, Partner agrees that, if Tenfold is subjected to a third party audit relating to Partner’s traffic or use of facilities which is the subject of this Exhibit, Partner will cooperate and assist in any such audit. Partner further agrees that it will protect, defend, indemnify and hold harmless Tenfold, its subsidiaries, affiliates, officers, directors and employees from any and all costs resulting from or related to such third party action.