LogicNow PARTNER LICENSE AGREEMENT
LogicNow PARTNER LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY
This License Agreement ("Agreement") is made between you ("Partner" or "You") and LogicNow, Inc., located at 11601 Wilshire Boulevard, Suite 1675, Los Angeles, California 90025 (“LogicNow”), which expression shall include its successors and assignees. LogicNow provides email-related services including but not limited to the MAX Mail services, MAX MailProtection™ and MAX MailArchive™ (the “LogicNow Service” or “LogicNow Service(s)” or “LogicNow Services”), and Partner desires to use these LogicNow Services for its own Domain(s) and/or for the Domains of one (1) or more of Partner’s customers (“Resale Accounts”). By this Agreement, LogicNow hereby authorizes Partner to represent the LogicNow Service(s) and to offer such LogicNow Services to Partner’s Resale Accounts. BY CLICKING “AGREE” TO ACCEPT THESE TERMS OR USING THE LogicNow SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE LogicNow SERVICE.
For the purpose of this Agreement:
These terms and conditions (as may be amended by a Service Order executed by Partner and LogicNow for the LogicNow Services) together with any documents referred to as may be amended from time to time in accordance with the terms.
A secondary domain that is an exact duplicate of a primary domain. An alias domain must have the exact same users, email addresses, aliases, distribution lists, mail server, etc., as the primary domain. The service will treat a message sent to firstname.lastname@example.org as if the message had been sent to email@example.com.
Refers to Internet SMTP-based electronic messaging or mail.
Email Virus or Virus
Means malicious or malevolent computer software code that is propagated via Internet email and that can cause unwanted or harmful computer system behavior.
Domain (or Internet Domain)
Refers to an Internet domain that receives email, such as yourdomain.com.
Refers to the hardware and software used by LogicNow to provide services to Customer by this Agreement.
Is defined as an email address at a Domain for a single user, including any associated alias addresses at the same Domain for that user that is receiving spam/virus filtering via the LogicNow Service; or a distribution list with a public Internet email address, that is receiving spam/virus filtering via the LogicNow Service.
A comprehensive inbound and outbound mail protection service which includes “zero-hour” anti-virus protection, attachment and malware scanning, multilayered spam detection, searchable individual hosted junk mail quarantines, daily spam digest messages for each end-user, configurable preferences for each user, and message logging and search capabilities.
An email archive service that captures inbound, outbound, and/or internal email messages, and stores those messages in an encrypted format in multiple geographic locations, for subsequent search and retrieval via LogicNow's web-based control panel; messages will be automatically retained in and removed from the archive in accordance with customer-specified retention policies.
Shall mean unsolicited bulk or commercial email, also referred to commonly as junk email.
2. PARTNER RESALE OR REFERRALS OF LogicNow SERVICE
Partner Resale of LogicNow Services. Partner may elect to resell the LogicNow Service to one or more of Partner’s customers (“Resale Accounts”). In such event, Partner shall contract directly with the Resale Account(s), and Partner shall be responsible for frontline customer service, technical support, and for billing Resale Accounts. LogicNow shall bill Partner based on the total number of Mailboxes encompassed by Partner’s own Domain(s) plus the Domain(s) of Partner’s Resale Accounts. Service fee calculations for the MAX MailArchive service may be subject to archive storage consumption by Partner's Resale Accounts. Partner shall compensate LogicNow for its Service to all such Domains. Partner may establish billing terms and pricing to its customers at its discretion. For each Resale Account, Partner’s monthly revenues from the LogicNow Service shall remain the property of the Partner for the duration of the LogicNow Service for that Resale Account, provided that Partner abides by the provisions of LogicNow’s terms and conditions, and remains current on its payments to LogicNow for such LogicNow Service(s).
Partner Referrals to LogicNow. Partner may elect to refer one or more customers to LogicNow for use of the LogicNow Service(s). LogicNow shall bill any such customers ("Referred Customers") directly, shall provide support directly to such Referred Customers, and may communicate directly with such Referred Customers for any purposes including for marketing, sales, and/or support activities. LogicNow may contract directly with such Referred Customers; otherwise, Partner shall be responsible for directing such Referred Customers to comply with all terms of the LogicNow Services. Subject to the availability of a MAX Mail Referral Program in Partner's geographic location, LogicNow shall pay commissions to Partner equal to 15% of the first two years of the LogicNow Services billings to such Referred Customers ("Referral Commissions") as compensation for such referrals,. The LogicNow MAX Mail Referral Program is not available in Europe, the Middle East, or Africa. LogicNow shall not be obligated to pay Referral Commissions for revenues that LogicNow is unable to collect from such Referred Customers. LogicNow shall compensate Partner for referrals on a quarterly basis, and shall provide Partners with documentation on fees billed and collected for Partner's Referred Customers. Partner understands that LogicNow reserves the right to provide, suspend, or not provide the LogicNow Services to any Referred Customers, for any reason, including but not limited to the credit-worthiness of said Referred Customers.
3. FEES FOR SERVICES
Services to Partner and Resale Accounts. LogicNow shall charge Partner for LogicNow Services provided directly to Partner and for LogicNow Services to Resale Accounts on a monthly basis, unless otherwise agreed by Partner and LogicNow. The service fees are calculated by reference to the number of Mailboxes utilizing the LogicNow Services at the start of each billing period at the applicable then current rates as published by LogicNow or in accordance with any Service Order executed between LogicNow and Partner. Service fee calculations for the MAX MailArchive service are subject to archive storage consumption by Partner's Resale Accounts, in accordance with pricing for the service as published by LogicNow.
LogicNow shall have the right to prorate charges for the first month of LogicNow Service for Partner and its Resale Accounts, in accordance with the number of days in that month for which LogicNow provides LogicNow Service. In the event that Partner pays by credit card, LogicNow shall process Partner’s credit card once per billing interval, without the need to provide documentation or notice to Partner, for the duration of the LogicNow Service provision to Partner and/or its Resale Accounts. With LogicNow's prior approval, Partner may pay on account. In the event that LogicNow agrees and Partner elects to pays by means other than a credit card, LogicNow may, as appropriate, submit electronic invoices to Partner once per billing interval, for the duration of the LogicNow Service provision to Partner and/or its Resale Accounts.
Fees remaining unpaid thirty days after their due date shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). LogicNow shall have the right to terminate this Agreement and/or to cease providing any or all LogicNow Services to Partner and/or Partner’s customers in the event that any fees due from Partner to LogicNow remain unpaid thirty days after their due date.
Partner shall pay LogicNow the fees free and clear of, and without any reduction for, any and all taxes. Partner shall pay any duties and taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions under the Agreement, including penalties and interest ("Transaction Related Taxes"), but specifically excluding taxes based upon LogicNow's assets or net income. When LogicNow has the legal obligation to pay or collect Transaction Related Taxes, the appropriate amount shall be invoiced to and paid by Partner unless Partner provides LogicNow with a valid tax exemption certificate authorized by the appropriate taxing authority. All fees and remittances will be in the currency indicated by LogicNow on its invoices to Partner.
Services to Referred Customers. LogicNow shall directly invoice customers referred to LogicNow by Partner, in accordance with LogicNow's service agreement with such customer. LogicNow shall compensate Partner for such Referred Customers in accordance with the terms of this Agreement and subject to the availability of a LogicNow MAX Mail Referral Program in Partner's geographic location. The LogicNow MAX Mail Referral Program is not available in Europe, the Middle East, or Africa.
4. ADJUSTMENT OF FEES
Changes to Number of Mailboxes. It is understood that the fees for the LogicNow Service(s) are based on the combined total number of Mailboxes at Partner’s Domain and at the Domains of Partner’s Resale Accounts. Partner shall be responsible for creating in the LogicNow Service control panel, or directing its customers to create, a Mailbox for each individual end user that will receive the LogicNow Services via this Agreement. It is understood that the number of such Mailboxes may change over the course of this Agreement. LogicNow Service fees for each billing interval shall be calculated based on the number of Mailboxes as of the beginning of that given billing period.
Service fees for MAX MailArchive are calculated based on the number of Mailboxes at the Domains of Partner’s Resale Accounts using the MAX MailArchive service, subject to allocated storage limits as published by LogicNow. Should such storage limits be exceeded by a given Domain, LogicNow shall have the right to adjust its fees for the MAX MailArchive service by increasing the Mailbox count for such Domain(s) by the minimum number of additional Mailboxes necessary to increase that Domain's allocated storage capacity to meet its actual archive usage.
In certain circumstances LogicNow may rely on Partner to provide an estimate of the number of actual or expected Mailboxes to receive the LogicNow Service from LogicNow under this Agreement. Partner warrants that the number of users it specifies for Partner’s Domain and for the Domains of Partner’s Resale Accounts shall be reasonably accurate, and agrees to inform LogicNow of changes in the total number of Mailboxes, in accordance with Partner’s billings to its customers. In the event that the Partner determines after the fact that the numbers were inaccurate, Partner will immediately report the correct number to LogicNow and pay LogicNow for the correct number of Mailboxes. LogicNow reserves the right to audit LogicNow Service usage, estimate the number of Mailboxes, and to adjust its fees to Partner if there is a significant (in LogicNow’s opinion) increase in the number of Mailboxes utilizing the LogicNow Services. In the event that LogicNow determines that the number of active mailboxes is in substantial excess of the number specified by Partner, LogicNow may invoice Partner for any underpayment of the service fees together with interest calculated in accordance with section 3, suspend any or all LogicNow Services, or terminate this Agreement immediately for breach of contract. LogicNow may report the behavior to any applicable regulatory authorities and pursue all available legal remedies
Partner Commitment Level. LogicNow’s pricing to Partner shall be in accordance with Partner’s commitment level, as per the then-current price list. Partner’s commitment level shall be defined as the total number of Mailboxes for a given Service for that particular billing cycle, including Partner’s own Domain(s) plus the Domain(s) of Partner’s Resale Accounts. Partner’s price per user may decrease or increase over time. To the extent that Partner’s commitment level increases or decreases, such decrease or increase in per-user pricing shall not be retroactive.
5. LogicNow’S RESPONSIBILITIES
LogicNow shall implement its LogicNow Services via hardware and software located outside of Partner’s network. LogicNow’s services may include the initial configuration of its systems for the Domains covered by this Agreement; training to Partner’s designated system administrator; and/or ongoing administration and maintenance of the LogicNow systems. LogicNow agrees to provide reasonable marketing collateral support, sales support as appropriate, and the provisioning of the LogicNow Service(s) on a timely basis. LogicNow shall provide Partner with reasonable technical support, via telephone or email, sufficient for Partner to perform its obligations and exercise its rights under this Agreement.
6. PARTNER’S RESPONSIBILITIES
Initial Setup: To initiate the Service, Partner will adjust the DNS (MX record) and/or mail server settings for Domains covered under this Agreement, to allow emails for such Domain(s) to pass through the LogicNow Systems. If Partner does not directly control DNS and/or the mail server, Partner will be responsible for directing the appropriate third-party to make such changes. Partner will provide LogicNow with all required information and technical data necessary for the provisioning of the LogicNow Service(s), and shall also provide LogicNow with relevant and current information for LogicNow’s billing purposes.
Point of Contact: Partner will designate a “system administrator” who will act as the main point of contact with/for LogicNow with regard to the LogicNow Service(s) and who will provide LogicNow all necessary information for the activation and continued provisioning of the LogicNow Service(s). Partner will also designate an alternate, secondary contact in the event the main point of contact is not available. The designated system administrator and alternate contact will act as the Partner’s sole contact with LogicNow for purposes of any applicable system training and/or technical support. While LogicNow will use reasonable efforts to provide relevant documentation and information, it is understood that certain features of LogicNow Service(s) may require minor configuration changes within Partner’s specific email servers or email clients, and the system administrator will be responsible for providing any necessary support to Partner’s email users.
Reconfiguration of DNS: In the event of the termination of the LogicNow Service, either by Partner or by LogicNow, Partner shall be responsible for adjusting the relevant DNS (MX record) and/or mail server settings such that emails for the terminated Domain(s) no longer pass through the LogicNow systems. It is understood that Partner’s failure to do so on or before the date of such termination may cause email for the Domain(s) to be lost, and LogicNow assumes no legal responsibility for any loss or damage following termination of the LogicNow Service (however caused) as a result of Partner or its agents not adjusting the DNS records and/or mail server settings prior to such termination.
Archive Data: It is understood that access by Partner's Resale Accounts to messages archived via the MAX MailArchive service is subject to renewal of the MAX MailArchive service by such Resale Accounts. Should Partner or its Resale Account(s) wish to retain archived messages subsequent to the termination of the MAX MailArchive service, Partner shall be responsible for exporting, or directing its Resale Account(s) to export, such archived data, at or prior to the termination of the MAX MailArchive service.
Interactions with Resale Accounts: Partner shall be responsible for sales, front line customer service and technical support, and all billing to its Resale Accounts (end user customers) for the LogicNow Services. Partner assumes full responsibility for collections from its Resale Accounts, and agrees to remit payment to LogicNow for LogicNow Services delivered to its Resale Accounts as defined in this Agreement. Partner shall be responsible for interacting with Resale Accounts for securing approval to change DNS (MX record) settings for Domains affected under this Agreement.
Promotion of Service: Partner will employ reasonable efforts to promote and demonstrate the LogicNow Services, and to communicate to Partner’s prospects and Resale Accounts the value proposition of the LogicNow Services.
Compliance with Laws: Partner is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its electronic messaging system. Partner acknowledges and agrees that LogicNow's responsibilities and liability do not extend to the internal management or administration of Partner's electronic messaging system or messages and that LogicNow is merely a data processor.
Acceptable Use Policy: Partner shall also be responsible for complying with, and for directing its Resale Accounts to comply with, the terms and conditions of the LogicNow Acceptable Use Policy ("AUP") as published or posted on LogicNow's website at logicwebdev.logicnow.com/hosted-hybrid-acceptable-use-policy and as may be periodically amended by LogicNow. Partner represents that he has carefully read and agrees to the terms of the AUP, which is hereby incorporated into this Agreement by reference.
No Derivative Products: Partner agrees that it shall not create or offer derivative versions of the Services either directly or through a third party, without LogicNow's prior express written permission.
7. MARKETING COLLATERAL
Logo Usage: Subject to the terms of this Agreement, LogicNow grants to Partner a worldwide, nonexclusive, nontransferable, royalty-free, personal right to use the MAXfocus Logo in conjunction with the LogicNow Service. All use of the Logo by Partner shall be in compliance with any Logo use guidelines as provided by LogicNow. Partner, at its option, may provide its logo to LogicNow for LogicNow’s use on its web site or in other marketing materials.
Promotional Materials: LogicNow may provide Partner with promotional materials to assist Partner in marketing and selling the LogicNow Service(s). Partner may add its name and logo to such materials, but shall not remove the LogicNow name nor Logo, nor make any other substantive changes to such materials, without LogicNow’s prior consent. LogicNow may, at its discretion, reference Partner in advertising and promotional materials in connection with the sale and promotion of the LogicNow Service or promotion of the LogicNow Reseller Partner Program.
Partner Status: Subject to LogicNow's approval, which shall not be unreasonably withheld, Partner may represent itself as a “LogicNow Service Provider,” “MAXfocus Authorized Service Reseller,” or “MAXfocus Service Partner”.
URL Links: Partner, at its option, may include a link on its web site to the LogicNow web site and/or to a designated URL provided by LogicNow. LogicNow may link from its web site to the Partner’s web site, and/or to a designated URL provided by Partner, subject to the mutual agreement of both parties.
8. EMAIL CONTENTS
It is understood that LogicNow is merely providing Partner with the technical means required to, on a best effort basis, use the LogicNow Service(s) as defined in this Agreement. LogicNow has no control over the contents or use of the email, internal or third-party email system(s), web site or other Internet applications of Partner or Partner’s customers. Partner agrees to comply with LogicNow’s policies for use of its LogicNow Services, including a zero-tolerance restriction against the intentional sending of unsolicited commercial email. LogicNow shall have the right to immediately suspend providing any or all LogicNow Service(s) to Partner, and/or to terminate this Agreement immediately without notice, in the event of a violation of these policies. Partner also agrees to comply with any and all applicable local, state, federal, or international regulations, including those in California and those in the local jurisdiction from which Customer is accessing the LogicNow Service. Such compliance may include, but is not limited to, laws regarding unsolicited commercial email, copyright, intellectual property, obscenity, libel, export, and data privacy. LogicNow shall not assume responsibility for any claims that may arise directly or indirectly from the content of email addressed from, addressed to, sent by, or received by Partner, and Partner agrees to indemnify and hold LogicNow harmless from any and all claims, losses or liabilities arising from such content, whether by Partner, its customers, any of its employees or agents, or any third parties. This provision is understood to apply to both Partner and to Partner’s Resale Accounts.
9. SERVICE LEVEL COMMITMENT
LogicNow will use reasonable efforts to maintain the LogicNow Systems to support the LogicNow Service. LogicNow agrees to make the LogicNow Services available in accordance with, and subject to any service credits specified in the Service Level Agreement available at maxwebdev.logicnow.com/mail/mail-protection/service-level-agreement as may be amended from time to time. LogicNow will make changes to the Service Level Agreement available to Partner on its website.
The Service Level Commitment shall be understood to pertain to Partner’s domain(s) and to those domains belonging to Partner’s Resale Accounts.
10. INDEMNITIES AND LIMITATION OF LIABILITY
Limitations of Service: Partner acknowledges that the techniques and technologies used for the creation and dissemination of Spam and Viruses are in constant evolution, and that LogicNow cannot and does not guarantee nor warrant that the LogicNow Services will detect all Spam or Viruses. It is further understood that the LogicNow Service(s) cannot and do not extend to any Spam or Viruses that reach Partner’s network(s) through means other than the LogicNow Systems, including but not limited to email that is sent directly to Partner’s mail server (thus bypassing the LogicNow Systems), or Spam or Viruses introduced within Partner’s network. Partner also acknowledges that some mail may be falsely identified as Spam by the LogicNow Systems, and Partner shall be responsible for determining the appropriate handling of messages identified as Spam.
Third-party Systems: Independent third parties may be used by the LogicNow Service to supply some of the information used in the LogicNow Services such as Spam detection heuristics rules, blacklists and virus definitions. While LogicNow will make reasonable efforts to ensure the accuracy of all such information, LogicNow cannot and does not make any warranty as to the accuracy of any such information.
Indemnification and Limitation of Liability: LogicNow provides its LogicNow Services under this Agreement “as is” and cannot make any affirmation of fact or warranty with respect to the LogicNow Systems used under this Agreement, and hereby expressly disclaims all express and implied warranties, including, without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary interests. While LogicNow shall make all reasonable efforts to ensure that Partner’s email is archived and/or delivered as per the LogicNow Services’ intended functionality and options selected, that Viruses and Spam are detected with reasonable accuracy, and that all legitimate email (not Spam nor Virus) is delivered unhindered, due to the nature of Internet email LogicNow cannot warrant that this will be the case at all times. LogicNow’s sole remedy and liability for non-performance of the LogicNow Services, shall be the application of service credits as specified in the Service Level Agreement. LogicNow SHALL NOT BE LIABLE FOR ANY CLAIMS OR LIABILITIES IN RESPECT OF ANY LOSS OF PROFIT, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, GOODWILL OR REPUTATION OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OPERATION OR PERFORMANCE OF THE LogicNow SERVICES, WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Partner hereby agrees to defend, indemnify and hold LogicNow, its successors and parents, subsidiaries and affiliates and its and their employees, officers and directors, harmless from and against any claim, loss, damage, costs or expenses (including reasonable attorney’s fees) arising out of or in any way connected with the performance of the services by this Agreement.
In absolutely no event will LogicNow or any of its affiliates be liable to Partner for (i) any sum greater than the total LogicNow Service fees received by LogicNow from Partner for the provision of LogicNow Services in the 12 months immediately preceding the event giving rise to a claim under this Agreement; or (ii) any claim arising from: (a) modification of the LogicNow Services; (b) use of the LogicNow Services in a manner not contemplated by this Agreement; (c) use of the LogicNow Services in combination with any product or data not provided by LogicNow, whether or not with LogicNow's consent; (d) use of any third-party software or materials; or (e) resale, distribution or other use of the LogicNow Services in the United States.
Partner’s Resale Accounts: In the context of this Section (Indemnities and Limitation of Liability), it is understood that all references to Partner shall also include any affected Resale Accounts of Partner.
11. FORCE MAJEURE
While LogicNow shall take commercially reasonable steps to ensure the availability of its LogicNow Services, LogicNow shall not be liable for delay or failure to perform any of its obligations under this Agreement in the event of circumstances beyond its reasonable control, including, without limitation, Domain Name Server issues outside its direct control, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, or other events outside of LogicNow’s reasonable control. Any such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented, provided that if such delay or failure persists for more than one (1) week either party may terminate this Agreement upon written notice to the other party.
12. CONFIDENTIAL INFORMATION
Email Traffic: The LogicNow Service uses several automated software systems that evaluate email messages electronically to determine whether they are Spam, Virus-infected, or legitimate messages. Partner’s email (including the email of Partner’s Resale Accounts) is not normally accessed, processed, or reviewed by LogicNow staff. However, to facilitate LogicNow’s ongoing efforts to improve the effectiveness of its technology and systems, LogicNow may review or use any email passing through its systems, for the express goals of (a) monitoring the effectiveness of its LogicNow Service, (b) using messages as sample data for the training of the LogicNow Service(s) artificial-intelligence engine and/or improvement of the Spam definition rules, or (c) providing technical support. IT IS UNDERSTOOD THAT IN ALL CASES, CLIENT’S EMAIL SHALL BE DEEMED AS CONFIDENTIAL INFORMATION.
LogicNow Trade Secrets: It is understood that Partner may have access to information pertaining to LogicNow’s marketing or sales strategies, pricing, intellectual property, systems configuration details, software, processes, and trade secrets that may be revealed or inferred through the provisioning of the Services. Such information shall also be deemed as LogicNow's Confidential Information.
Treatment of Confidential Information: Neither party will disclose any Confidential Information of the other party to any third parties, except to those employees, consultants and agents who are required to have the information in order to perform their responsibilities as outlined in this section. Each party shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party, with the same degree of care that such party uses to protect its own most highly Confidential Information.
Notwithstanding the foregoing, the restrictions on disclosure of Confidential Information do not extend to any item of information which (a) is or becomes publicly known without breach of this Agreement, (b) is lawfully received by the receiving party from a third party not bound in a confidential relationship to the disclosing party, (c) is published or otherwise made known to the public by the disclosing party, or (d) was generated independently by the receiving party or any of its affiliates. In the event that either party or its respective directors, officers, employees, consultants or agents is required pursuant to the order or requirement of a court, administrative agency, or other governmental body to disclose any Confidential Information of the other party, the party required to do so shall make all commercially reasonable efforts to disclose only that portion of the Confidential Information which such party’s legal counsel advises that it is legally required to disclose.
13. INTELLECTUAL PROPERTY
Partner acknowledges that intellectual property in the LogicNow Services is owned by, or licensed to LogicNow and its affiliates, and that Partner has no rights in or to the LogicNow Services or LogicNow Systems other than the right to use them in accordance with the terms of this Agreement. In this section intellectual property means any and all patents, copyrights, design rights, trademarks, trade secrets, know-how, database rights and other rights in the nature of intellectual property established or created anywhere in the world, whether registered or unregistered and all applications for the same anywhere in the world
14.TERMINATION OF AGREEMENT
Duration of Agreement: This Agreement shall remain in full force and effect for one (1) year, unless it is terminated in accordance with the provisions of this Agreement. At the conclusion of one (1) year, this Agreement will automatically renew for successive one (1) year terms unless either party gives formal written notice to the other party at least thirty (30) days prior to the expiration of the then-current term of its intent not to renew. LogicNow may terminate this Agreement on giving 30 days notice where Partner is in breach of this agreement, and fails to remedy a remediable breach within 30 days of written notice from LogicNow requiring Partner to remedy such breach.
Responsibilities Upon Termination: Within 7 days of notice to terminate this Agreement (howsoever served) Partner will provide LogicNow with such information as it reasonably requires to contact each customer to whom Partner resold the LogicNow Services to enable LogicNow to continue to provide the LogicNow Services to such customer following termination. Where a customer indicates that they no longer wish to receive the LogicNow Services, Partner acknowledges that the termination of the LogicNow Services requires that Partner adjust affected DNS (MX record) and/or mail server settings such that emails to and/or from Partner’s Domain(s) no longer pass through the LogicNow Systems. It is understood that Partner’s failure to do so on or before the date of such termination may cause email for the Domain(s) to be lost.
Termination of Archive: The termination of the LogicNow MAX MailArchive service for Partner's Domain(s) and/or for Partner's Resale Accounts shall terminate LogicNow's obligation to retain any archive data for the terminated Domain(s). Upon such termination, LogicNow shall provide a 30-day grace period in which Partner or Partner's Resale Accounts may continue to access the archive. After the 30-day grace period, LogicNow shall no longer provide access to the archive to Partner and/or Partner's Resale Accounts, as appropriate, and LogicNow shall remove any archived data of such terminated Domain(s). It is agreed and understood that it is solely Partner's responsibility to export, or to direct its Resale Account(s) to export, any archive data, at or prior to the termination of the LogicNow MAX MailArchive service and the subsequent 30-day grace period.
Termination Due to Court Order: In the event that LogicNow's right to provide the Services is enjoined or in LogicNow's reasonable opinion is likely to be enjoined by a court or government authority, LogicNow may, at its expense, obtain the right to continue providing the Services, replace or modify the Services as necessary, or if such remedies are not reasonably available, terminate this Agreement without liability to Partner.
Survival of Certain Provisions: The provisions of this Agreement governing Referral Commissions (Section 2), Indemnification and Limitation of Liability (Section 10), Confidentiality (Section 12), and Intellectual Property (Section 13), shall survive termination of this Agreement. The above notwithstanding, LogicNow shall not be obligated to pay Referral Commissions in the event Partner is in material breach of this Agreement.
15. RELATIONSHIP OF PARTIES
Nature of Relationship: Each party to this Agreement is an independent entity, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, or employment relationship between the parties. Neither party shall have the authority to make or accept any offers or representations on the other party’s behalf. Neither party shall have any right to obligate the other party in any manner whatsoever beyond the delivery and support of the GF Service and nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
Representations: Neither party may make any representations concerning the other party, except as correctly represented by the other party in its documentation, writings or other marketing or communications materials. Neither party shall engage in any illegal, deceptive, misleading, unethical or improper acts or practices in performing its duties under this Agreement.
Publicity and Press Releases: Neither party shall originate any publicity, news release, or other public announcement relating to this Agreement without the prior approval of the other party, which will not be unreasonably withheld, delayed, or conditioned.
Undertaking Not to Compete: Without the prior written authorization of LogicNow, Partner shall not manufacture or distribute any products or services that are in direct competition with the LogicNow Services, for the term of this Agreement.
Non-Solicitation of Customers: Provided that Partner is not in breach of this Agreement, LogicNow shall not solicit or attempt to solicit the business of Partner’s Resale Accounts, for any products or services, without Partner’s prior written consent, during the course of this Agreement and for a period of 12 months following termination, except as otherwise provided herein. Partner agrees that it shall not, during the term of this Agreement, directly or indirectly try to persuade any LogicNow customer to discontinue using the LogicNow Service(s), without providing LogicNow with thirty (30) days prior formal written notice of its intention to do so. Such notice should include an explanation of why Partner is choosing to influence customer to discontinue use of the LogicNow Service(s).
Non-Solicitation of Employees: Neither party shall solicit, employ, or otherwise engage an employee or contractor of the other party during that individual’s employment with the other party, and for a period of six (6) months following any termination of the particular employee’s employment with the other party. Should a party violate this provision, the violating party agrees to pay the other party, as damages for the violation, two hundred percent (200%) of the former employee’s total compensation in the past twelve months with the non-violating party.
All notices must be in writing and addressed to the attention of the other party's primary point of contact or legal department. Notice will be deemed given when verified by written receipt if sent by courier, or when verified by automated receipt or electronic logs if sent by email or facsimile.
LogicNow shall have the right to assign certain of its responsibilities and rights associated with this Agreement to another LogicNow group company or a third party. This may include, but shall not be limited to, LogicNow's billing of Partner and LogicNow's provision of technical support to Partner. LogicNow shall not be required to provide any advance notice of such assignment, and it is understood that such assignment shall constitute standard practice for partners located in certain geographic regions including Europe, the Middle East, and Africa. Partner shall comply with any local regulations, and with any terms and conditions required by the assignee, resulting from such assignment.
18. EUROPEAN ECONOMIC AREA
Where Partner or any of its customers are located in the European Economic Area, or utilizes the LogicNow Services from within the European Economic Area, the following provisions will apply:
The following terms will have the meanings given in Directive 95/46/EC on the protection of individuals and with regard to the process of personal data and on the free movement of such data: data controller, data processor, personal data, process and processing.
Partner acknowledges that it (or its customer) is the data controller of any personal data contained within, or associated with emails sent or received any by Mailbox in the course of the LogicNow Services, and that in providing the LogicNow Services, LogicNow is acting as a data processor on behalf of Partner.
Partner warrants that it has, and will continue to take appropriate technical and organizational measures to protect against unauthorized or unlawful processing of personal data, and against accidental loss or destruction or damage to such personal data, and will take reasonable steps to ensure that those of its personnel accessing personal data in the course of providing the LogicNow Services or as contemplated in this Agreement understand the confidential and sensitive nature of such personal data.
LogicNow will cooperate with any reasonable request by Partner for information relating to the processing of personal data to enable Partner (or its customer) to respond to a request for information from a data subject.
Settlement of Disputes: The parties shall try to settle any dispute arising out of or in connection with this Agreement by mutual accord. In the case of continuing disagreement, both parties agree to submit to binding arbitration according to the rules of the American Arbitration Association as the sole remedy for such dispute. In such instance, the prevailing party shall be entitled to reasonable attorney’s fees and the costs of that arbitration. The parties agree to venue in Los Angeles, California.
Provisions of Agreement: If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. Non-enforcement or waiver of any section of this Agreement does not constitute consent or continuing waiver.
Complete Agreement: This Agreement shall constitute the complete statement of the terms and conditions between LogicNow and Partner regarding the LogicNow Services, and shall supersede all prior arrangements, written or oral, between the parties regarding this matter.
Other Terms: The validity of this Agreement and the interpretation of all of its provisions shall be governed by the laws of the state of California, and may be amended only by written instrument signed by both parties.
By executing this Agreement you are agreeing that: (a) you are a representative of Partner with the authority to execute this Agreement; (b) you have read and accepted all the terms and conditions in this Agreement; (c) all the information provided by Partner to LogicNow is true and complete; (d) Partner accepts the responsibility to promptly inform LogicNow of any changes to the information provided; (e) LogicNow is authorized to obtain and use credit history information about Partner, unless the selected payment method is with credit card, in which case LogicNow is authorized to make charges, as stipulated in this Agreement, to the provided credit card account.