Partner Terms & Conditions – BrickControl
The following Partner Terms and Conditions govern the guidelines and Services which can be promoted by the “Partner”.
By accepting this agreement, You agree to be bound by the terms and conditions of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement, in which case “You” shall mean such entity. If you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you must not use the service and therefore decline this agreement.
You may not access the services if you are our direct competitor, except with our prior written consent. In addition, you may not access the services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 20, 2011. It is effective between You and Us as of the date of you accepting this Agreement.
SERVICES means the services which you can promote to BrickControl Clients, as referred to in Annex 1 of this agreement.
COMMISSIONS means compensations paid to You by Desarrollos Informáticos SHM for Your promotional activities when they successfully turn into sales and clients purchase our Services. Commissions are detailed in Annex #2 of this agreement.
AFFILIATE means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. Therefore, the terms accepted by the main entity will also be accepted by its Affiliates.
PURCHASED SERVICES means Services that You or Your Affiliates purchase under an Order Form.
THIRD-PARTY APPLICATIONS means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
WIKI means the online user guide for the Services, accessible via http://en.wiki.brickcontrol.com/ as updated from time to time. You acknowledge that You have had the opportunity to review the Wiki during the 7-day Free Trial Period.
USERS means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
WE, US or OUR means Desarrollos Informáticos SHM, S.L. as described in Section 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
2. PARTNER LEVELS
BrickControl.com offers these levels of partnership:
- Bronze Partnership
- Silver Partnership
- Golden Partnership
Partnership differences will be detailed in Annex #3 of this agreement.
We will compensate you for your promotional activities, as stated in Annex #2.
4. COMMISSION PAYMENT
We will pay commissions on a monthly basis. We will send You a monthly report on Your commissions. If You approve the report, We will send you a payment receipt and You will receive Your payment within 15 days. If you have any concern about your payment please let us know upon written request. This section is subject to the conditions set in Annex #2.
5. PROPRIETARY RIGHTS
- a) Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
- b) Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
- c) Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
- d) Spain Government and International End Use Provisions. We provide the Services, including related software and technology, for public and private firms as well as end users solely in accordance with the Spanish Legislative Royal Decree 1/2002 (Real Decreto Legislativo 1/2007), of 16th November, which approves the consolidated drafting of the General Law on the Defense of Consumers and Users and other complementary laws, including all European and international regulations covering consumer and user protection rights.
- a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- b) Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- c) Protection of your Data. We agree to comply with our obligation with respect to personal data in accordance with the Spanish Organic Law 15/1999 (Ley Orgánica15/1999) of 13th December on the Protection of Personal Data (LOPD), and the Spanish Royal Decree 994/1999 (Real Decreto 994/1999) of 11th July as well as other regulations that might be applied in this agreement. However, the Client shall indemnify Us for any damages or indemnification to any third party entity incurred by not complying his obligations stated in this agreement with respect of Data Protection. The Client hereby authorizes Us to enter his personal data, included in the Order Form, into files used for internal use of which we are the main responsible, with the sole purpose of providing our Services; unless the Client indicates the opposite upon written request. The Client understands that in the Order Form, he has the possibility of exercising the rights of access, rectification, cancellation and/or opposition with respect to his personal information upon written request.
- d) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
- a) Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide, (ii) subject to Section 5.c (Google Services), the functionality of the Services will not be materially decreased during a subscription term. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 12.c (Termination for Cause) and Section 12.d (Refund or Payment upon Termination) below.
- b) Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
- c) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION
- a) Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (” Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder or any Deliverables provided under Professional Services infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
- b) Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
- c) Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
9. LIMITATION OF LIABILITY
- a) Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION CLAIMS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF 6,000€ OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
- b) Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
- a) Term of Agreement. This agreement starts from the date you accept it and shall last for a period of one year. This agreement shall renew for succesive years, unless one party notifies the other party of its intent not to renew within sixty (60) days prior to end of the Initial Term or any Renewal Term.
- b) Termination for Inactivity. If a Partner, during the course of a year, has not gotten new subscriptions or gotten Service extensions of His referred clients; we can terminate this agreement.
- c) Termination for Cause. A party may terminate this Agreement for cause: (i) upon 7 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
- a) General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.
- b) Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the second business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
- c) Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
- d) Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
|If you are domiciled in:||You are contracting with:||Notices should be addressed to:||The governing law is||The courts having exclusive jurisdiction are:|
|All domiciles||DESARROLLOS INFORMATICOS SHM, S.L.||
Puerta del Sol Nº 13 4º C
|Spanish Law||Courts of Madrid
(Tribunales de Madrid)
12. GENERAL PROVISIONS
- a) Export Compliance. Each party shall comply with the export laws and regulations that both parties agree and thereby by other applicable jurisdictions in providing and using the Services.
- b) Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- c) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- d) Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- e) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- f) Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- g) Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms and registration data, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or Annex hereto or any Order Form, the terms of such exhibit, Annex or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
We authorize You to promote the following services:
- 1) Traning on the use of Our product to BrickControl Clients.
- 2) Provide support on the use of BrickControl.
- 3) Create tools required to integrate BrickControl with other third applications used in accounting, payroll among others.
We will compensate our Partners for their promotional activities in accordance with the following terms:
- 1. The comission rate is 30% on new subscriptions to Our BrickControl Service.
- 2. Other services not related to new subscriptions of our BrickControl Service, such as training, customer support, storage capacity increase among others, will not generate commissions.
- 3. Commissions will be paid on a monthly basis. We will send You a monthly report on Your commissions. If You approve the reports, We will send you a payment receipt and You will receive Your payment via Paypal. A Paypal account is required in the process of receiving your payment and you take full responsibility of it.
- 4. If a Partner, during the course of a year, has not gotten new subscriptions or gotten Service extensions of His referred clients; we can terminate this agreement. After any termination of your Partner relationship with us, you understand and acknowledge that we shall have no obligations to you, including compensation for services. You shall lose the rights to receive payments, therefore we shall have no further obligation to pay you any commissions whatsoever.
We offer two categories of Partnership. Depending on which category you choose, the following terms will apply:
- 1. Bronze Partner. This category will have a free BrickControl user license in which data stored will be deleted every six months as well as not having Exporting options enabled.
- 2. Silver Partner. This category will have a BrickControl user license which will be paid by the Partner. The Partner complies to pay a monthly fee for a “BrickControl Standard Edition” user license at its public offering price. Data will remain in your account as long as the Partner keeps His Tier or upgrades to Gold Partner, in which We will also provide prospective clients residing in His country to promote Our Services depending on the current availability.