PLATFORM OS INCORPORATED PARTNER AGREEMENT
1. YOUR AGREEMENT WITH PLATFORM OS INCORPORATED
1.1 THIS AGREEMENT IS BETWEEN YOU AND PLATFORM OS INCORPORATED (“pOS” OR “We”), A U.S.-BASED COMPANY, AND YOU AGREE THAT YOUR RELATIONSHIP WITH pOS WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF DELAWARE, UNITED STATES, AS SET FORTH IN SECTION 18.3.
1.2 This Partner Agreement (this “Agreement”) sets forth the terms and conditions for partners who create, publish, and distribute software through or in connection with pOS platform-as-a-service (“Service”), as accessed via pOS Partner Portal (as defined below) and updated and enhanced from time to time. If you use the Service on behalf of a company, then “you” means both you (as an individual) and such company, and you represent and warrant that you have all necessary authority to bind that company to the terms and conditions of this Agreement.
1.3 pOS may alter or amend this Agreement at its sole discretion. If we change the Agreement, then we will make a new copy available at: platformos.com/partner-agreement. Your use of the Service is subject to the most current version of the Agreement at the time of such use.
1.4 To be eligible to enter into this Agreement and participate in the partner program, you must have your primary business listed as a Web Development Agency, Internet Consultant, Application/IoT Developer, Web-development professional or related Internet Practitioner who derives their primary income by providing other businesses with your specific Internet related skill-set.
2. DEFINITIONS As used in this Agreement
2.1 “pOS Payment Processor” means pOS’s third party payment processor, the use of which may require you to enter into a separate agreement with and provide certain additional information to such processor.
2.2 “Affiliate” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
2.3 “End User” means an individual who uses or interacts with the Services as a result of their relationship with the Partner.
2.4 “Intellectual Property Rights” means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
2.5 “Module Marketplace” or simply “Marketplace” (accessed via the Partner Portal) means a service mechanism for the sale and/or distribution of Products built for the purpose of being used with the Service.
2.6 “Partner” means the authorized reseller of the Services to End Users.
2.7 “Product” means your extensions, application software, code, material, text, data and other works of authorship made available to End Users, on either a trial or commercial basis, for use with the Service; and may include Product made available on the Marketplace (such Products also known as “Modules”).
2.8 “Partner Portal” means the mechanism by which pOS site instances or applications are created, managed and distributed, whether via the API layer or via UI Admin.
3. GRANT OF LICENSE
3.1 License. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all applicable fees, if any, pOS grants to you, as a partner, a limited, non-transferable, non-exclusive, license, without the right to grant sublicenses, to use the Service solely for the purpose of publishing and distributing compliant Products via the Partner Portal and/or Marketplace.
4. USE OF SERVICE
4.1 You agree that pOS retains the right to create reasonable limits on the use or design of your Product, such as limits on file size, storage space, processing capacity, and as otherwise determined by pOS in its sole discretion. You agree that you, not pOS, are entirely responsible for your Product(s). You assume all risks associated with the use of your Product, including any reliance on its accuracy, completeness, or usefulness will hold pOS at no-fault for any errors, omissions, bugs or deprecated functionality, including that provided by 3rd party APIs, related to your Product.
5. REVIEW AND APPROVAL
5.1 By pOS. pOS shall have the right to review your Product(s) for compliance with pOS’s current approval guidelines and standard policies, which will be made available to you upon request. In the event that your Product(s) do not meet pOS’s guidelines and standard policies, pOS shall have the right to cause your Product(s) to be removed from the Service and/or Marketplace and blocked from further distribution unless and until your Product(s) are brought in compliance with pOS’s guidelines, best-practice and standard policies. Furthermore, pOS shall also have the right and ability to disable your previously distributed and installed Product(s) unless and until your Product(s) are made compliant. You agree and acknowledge that pOS may remove Products from the Service at any time for any reason. You agree that pOS is not held liable for any of your Products removed from the Service or Marketplace due to action based on this section.
6. MARKETING REQUIREMENTS AND RESTRICTIONS
7.1 You will be solely responsible for performing, in a manner consistent with good industry practice, all installation, training, support, and other services requested or required by End Users who obtain the Product through the Service, though you are not obligated to offer any such installation, training, or support. You will not refer any End User to pOS for such support and pOS has no obligation under this Agreement to provide any services to, or respond to any requests from, End Users. However, pOS reserves the right to establish and maintain contact with End Users in order to facilitate the delivery of any Product support needed by such End User.
8. DISTRIBUTION BY pOS VIA MARKETPLACE
8.1 License. Except for private Modules that are for exclusive use only by the Partner who owns the Module,you hereby grant to pOS and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid up license, under all of your Intellectual Property Rights related to the Module Marketplace and those Modules which you have assigned for sale or for free, where such IP has been made available through the pOS Marketplace for distribution or for sale, or as otherwise mutually agreed, to (a) use, copy, publicly display, publicly perform and distribute the Product for any purpose related to this Agreement, including, but not limited to, promoting and marketing the Product, the Service and/or pOS, its products, and services, and (b) sublicense to third parties the rights licensed to pOS in subsection (a) of this Section 8.1.
8.2 Products being code developed by a Partner and shared with other Partners or pOS End Users, in general,
8.2.1 shall be distributed only on the Marketplace; and
8.2.2 shall use the integrated 3rd Party Payment Provider to handle credit card information, payments or any information related to payment of the Product.
8.3 Restrictions. Except as expressly permitted in Section 8.1, pOS agrees not to (a) modify, adapt, alter, or create derivative works from the Product, or (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Product, where the Product includes private folder code. pOS will reproduce, on all copies made by or for pOS, and will not remove, alter, or obscure in any way, all proprietary notices of yours on or within the copies of the Product.
8.4 pOS shall have the right, at its sole discretion, to set limits on the number of API requests that can be made against the Marketplace API’s. (Currently Unlimited or as defined in the billing plan overages associated with your Partner Portal account and or site instances you own). Partner must agree to such limitations, if and when imposed, and shall not attempt to circumvent such limitations. Partner should contact pOS for additional terms in case the limit on API calls will be exceeded.
8.5 All content (Product) made available by Partner via the Marketplace shall be original content that is (a) associated exclusively with your author name; (b) written by you personally from scratch, or; (c) ghost written exclusively for you and no one else, from scratch. Notwithstanding the foregoing, Partner may license third party assets for inclusion in the Product(s), provided that at least fifty percent (50%) of the code for the Product(s) meet the foregoing originality requirement.
8.6 The Product may not impersonate or spoof other users or applications.
8.7 Partner shall use the pOS APIs only for developing applications for the Marketplace and for no other purpose except as expressly permitted under this Agreement. Partner shall not reverse engineer the APIs or sublicense the APIs to third parties.
8.8 Partner shall have the right to decide if the Products will be sold at list price, for a subscription or given away for free.
8.9 Fees. pOS may charge a processing and or commission fee, relating to any Products sold through the Marketplace. The fees and or commissions will be clearly defined at the time of uploading of the Product to the Marketplace.
8.10 pOS reserves the right to disable Product made available through the Marketplace if in the view of pOS they do not confirm to a high level of what is considered best practice for web and software applications. Advice and guidance may, at its option, be offered by pOS to improve or set right such Product so that it meets best practice.
8.11 Maintenance due to deprecation or other reasons. Partners are obliged to maintain Product offered via the Marketplace in a timely manner. Where Partners do not maintain such Products, or are very slow to maintain such Products, to the detriment of End Users; if there is no response from a partner within 30 days of being notified in writing of such a concern, and no rectifying action taken within 60 days of the initial notice, pOS reserves the right to take ownership of such Product for the benefit of End Users and other Partners using that Product.
8.12 Partner - End User relationship irreconcilable. Where Partner is not contactable through normal channels and/or Products published by the Partner are not being maintained or made backward compatible in lieu of deprecated elements of the Service; if there is no response from a partner within 30 days of being notified in writing of such a concern, and no rectifying action taken within 60 days of the initial notice, pOS reserves the right to take ownership of such Products and incorporate them directly into the overarching pOS provided portfolio of Products that are offered via the Marketplace.
8.13 Notwithstanding the requirement in Section 8.1, above, for Products that are built and owned by a Partner, such Partner shall have the right to add such Product to End Users instances that are linked under their own Partner Portal, directly to Partner’s own sites and End User sites managed under that same Partner Portal - at no cost - no marketplace fee apply.
9. PARTNER’S ACKNOWLEDGEMENTS
9.1 Competitive Products. You understand and agree that the relationship between the parties hereunder is non-exclusive and that applications similar or competitive to Product may be developed and made available via the Service by other Partners. You also understand and agree that this Agreement shall not be construed as prohibiting Partners from acquiring, licensing, developing for itself (or having others develop for it), marketing, publishing and/or distributing products that are similar or competitive to the Product.
10. PARTNER’S OBLIGATIONS
10.1 The Product shall not transmit any malicious code (including but not limited to viruses, worms, defects, and Trojan horses) or any other items of a destructive nature, and shall ensure that no such malicious code is included with any of its Products to the best of its ability and in accordance with industry standards, including but not limited to making use of commercially available malware and virus scanning software.
10.2 Partner shall always use encrypted HTTPS connections and authentication tokens relevant to the secure installation and deployment of Products within the Marketplace or related API endpoints.
10.3 Partner shall not circumvent or attempt to circumvent pOS’s intended limitations on core pOS features and functionality.
10.4 Maintenance due to deprecation or other reasons. Partners should make best endeavors to maintain best practice execution of Product used by End Users, and should be provided in a timely manner. Where Partners do not maintain such Products, or are very slow to maintain such Products, to the detriment of End Users; pOS reserves the right to take ownership of such Product for the benefit of End Users, which may include appointing the End User to another Partner. Deprecation may relate to 3rd party front-end frameworks and pOS API’s and Function Calls.
10.5 Partner - End User relationship irreconcilable. Where Partner is not contactable through normal channels, or the relationship between Partner and End User is irreconcilable, pOS reserves the right to take ownership of the Product to ensure continuity of the Product and Service for the End User, which may include appointing the End User to another Partner.
11. TRADEMARKS; BRANDING
11.1 Partner Trademarks. Subject to the terms and conditions of this Agreement, you grant to pOS a limited, non-exclusive, non-sublicensable, royalty-free, worldwide license to reproduce and use your trademarks, service marks, trade names, logos or other commercial or product designations for the purposes of promoting and distributing the Products.
11.2 pOS Trademarks. You are not permitted to use any pOS trademarks except as and unless expressly permitted herein. Any use of pOS trademarks must comply with pOS's general trademark guidelines available on the company's website at platformos.com/legal/trademarks and updates of those guidelines as made available periodically.
12.1 pOS. pOS and its respective suppliers and licensors shall retain all right, title and interest in and to the Service, and all portions thereof, including, without limitation, all Intellectual Property Rights thereto. Other than the license expressly granted in Section 3, you receive no right, title or interest in or to the Service.
12.2 Partner. You retain all right, title and interest in and to the Product(s) (except for any portion of any pOS Intellectual Property Rights, or any third party software incorporated or embodied therein via the Marketplace which is not open sourced), including all Intellectual Property Rights related thereto.
13.2 Any use of 3rd party services, not defined, detailed or included in pOS Billing Plans or Overages, payment of such 3rd party services will be liable to the Partner or End User. Eg: the inclusion or use of 3rd party payment services will incur costs that must be attributed and paid for by the Partner or Partners End User or sub-Partner. Or where such free 3rd party services become billable, such as in the case of Google Map API’s which were free and then became charged by Google, pOS will not be held liable for any 3rd party price changes and all such 3rd party charges will be held liable by the Partner or End User.
14. WARRANTIES AND DISCLAIMERS
14.1 No Warranty. pOS PROVIDES THE pOS INTELLECTUAL PROPERTY AND THE SERVICE TO YOU “AS IS.” pOS AND ITS SUPPLIERS MAKE NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF ANY KIND WITH RESPECT TO THE pOS INTELLECTUAL PROPERTY AND THE SERVICE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, pOS MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) ANY ERRORS OR ANY DEFECTS IN THE SERVICE WILL BE CORRECTED.
IN NO EVENT WILL pOS OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, EVEN IF pOS OR ANY COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT AND YOUR USE OF THE SERVICE AND THE pOS PAYMENT PROCESSOR.
14.2 Partner Warranty. By choosing to upload a Product to the Service or make a Product available via the Marketplace, you represent and warrant that the Product will not (a) contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information, (b) violate any law, statute, regulation, or rights (including without limitation, any laws, regulations or rights respecting intellectual property, computer spyware, privacy, publicity, export control, unfair competition, anti discrimination, or advertising) when used in the manner in which it is intended, (c) infringe any intellectual property rights of another, including without limitation any rights of publicity and rights of privacy, and (d) interfere with the operability of pOS, or third-party software or systems.
15.1 You shall, at your own expense, indemnify, defend and hold pOS harmless from and against any and all claims, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses (collectively “Claims”) to the extent such Claims arise out of: (a) any breach of this Agreement by you, (b) any allegation that your Product or combination of your Product with any other application or Product infringes any third party Intellectual Property Rights, (c) any breach or alleged breach of any representations and warranties made by you concerning any aspect of the Product, (d) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Service, (e) any alleged or actual violation of your obligations of privacy to any third party, (f) any End User allegation related to the Product, including but not limited to any allegations based on a product liability claim, and (g) any allegation related to your agreement or relationship with the pOS Payment Processor, the Marketplace owner/operator, or any End User.
16. LIMITATION OF LIABILITY
16.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL pOS OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND pOS’S AND ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE LESSER OF $100 OR THE AMOUNTS RECEIVED BY pOS IN CONNECTION WITH THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Each party acknowledges that the fees and amounts payable set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that the other party would not enter into this Agreement without these limitations on its liability. Each party agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply.
17. TERM; TERMINATION
17.1 Initial Term. The term of this Agreement shall commence on the Effective Date of access to the Service and will continue for one (1) year (the “Initial Term”) unless earlier terminated as set forth herein. Provided that you pay all required fees, if any, when due, the Initial Term shall be automatically extended for successive one (1) year periods (each, an “Extension Term”), unless either party delivers to the other party written notice of its intention not to extend the Agreement at least thirty (30) days prior to the end of the Initial Term or the then-current Extension Term. The Initial Term, together with any Extension Term, may be collectively referenced as the “Term.”
17.2 Termination by pOS for Cause. pOS may terminate this Agreement immediately if you are in material breach of any term, condition, representation, or warranty of this Agreement.
17.3 Termination by pOS for Convenience. pOS may terminate this Agreement for any reason or no reason whatsoever upon fifteen (15) days’ prior written notice.
17.4 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) you shall immediately cease all use of the Service; (b) the Service may fulfill orders from End Users of the terminated Partner for Product for up to three (3) months after the effective date of expiration or termination (or if the End User is in good financial standing wishes to continue to use the Service, the pOS reserves the right to continue offering the Service directly to the End User at agreed fees), and (c) Products may be immediately removed from the Service. Termination of this Agreement shall not affect any payment obligations which arose prior to the effective date of termination.
17.5 Survival. Sections 1, 7, 9, 12, 14, 15, 16, 17.4 and 18 shall survive the expiration or termination of this Agreement for any reason.
18.1 Independent Contractors. Each party hereto is an independent contractor of the other and neither shall be deemed an employee, franchisee, agent, partner or joint venture of the other. Nothing contained herein shall be construed as creating any agency, employment relationship, franchise, partnership, principal-agent or other form of joint enterprise between the parties. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
18.2 Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are sent either by facsimile, overnight messenger delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested to such address as each party may designate pursuant to this notice provision. If notice is sent to pOS, it shall be sent to the attention of the General Counsel at 8924 Prairie Knoll Drive, Longmont, CO 80503, USA.
18.3 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Delaware, and the parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Wilmington, Delaware without regard to any conflicts of laws principles that would require the application of the laws of another jurisdiction. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including, without limitation, reasonable attorneys’ fees. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
18.4 Export. You acknowledge and agree that the Product will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively, “Export Laws”). You represent and warrant that the Product is eligible for export under the Export Laws, and that you have received all necessary permissions, including registrations, licenses, foreign exchange approval, import licenses and fair trade approvals from the United States government for the export of the Product. In addition, you represent and warrant that you are not a citizen of, or located in, an embargoed or otherwise restricted nation (including Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from using the Service.
18.5 Assignment. You shall not assign, delegate, convey or transfer, directly or indirectly, by operation of law or otherwise, this Agreement or its rights and obligations hereunder without the prior written consent of pOS, and any attempt to do so in contravention of this Section 18.5 shall be null and void. For the avoidance of doubt, a change of control shall be deemed an assignment for the purposes of this Section 18.5 and this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each party’s respective successors and permitted assigns.
18.6 Remedies. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by you may cause pOS irreparable damage for which recovery of money damages shall be inadequate, and that pOS shall therefore be entitled to seek timely injunctive relief to protect pOS’s rights under this Agreement in addition to seeking any and all remedies available at law. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
18.7 Waiver; Severability. All waivers must be made in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Section 16 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 14 (Warranties and Disclaimers).
18.8 Confidentiality of Agreement. Neither party will disclose any terms or the existence of this Agreement, except pursuant to a mutually agreeable press release or as otherwise required by law.
18.10 Release. You will not hold pOS responsible for any damages, costs or liabilities of any kind arising out of or in connection with participation in the Service, use of the pOS Payment Processor or your affiliation with any End User or third party's use of your Product, and you hereby release pOS, jointly and separately, from any and all such claims."
18.11 English Version. The English version of this agreement will be the version used when interpreting or construing this agreement.