Software Referral Partner Terms and Conditions

 

These Software Referral Partner Terms and Conditions (the “Terms and Conditions”) set out the terms by which Cyncly grants to Partner the non-exclusive right to provide customers a 3-month trial access to Cyncly’s software product as identified in the signed Order Form (the “Software”). This right is limited to the territorial limits stated in the Order Form (the “Territory”) and is subject to compliance by Partner with all the Terms and Conditions throughout the Term. Partner and Cyncly together are referred to as the “Parties” and individually as a “Party”.

1. DEFINITIONS AND SCOPE

The Parties agree that:

1.1  Cyncly will provide a three-month trial, or another timeframe as stated in the Order Form, of the Software within the parameters stated in the Order Form.

1.2  “Agreement” means a contract made between the Cyncly and the Partner by signing an Order Form.

1.3  “Cyncly” means the member of the Cyncly group of companies specified as the ‘Supplier’ in the Order Form.

1.4  “End Customer” means the customer of the partner who has been given the software trial and then subsequently contacts Cyncly in order to obtain the said trial.

1.5  “Order Form” means the purchase order entered into between the Partner and Cyncly for the Products or services.

1.6  “Partner” means the individual or legal entity which is a Party to an Agreement with Cyncly, as identified in the Order Form.

2. TERM

The “Term” of this Agreement is 12 months, beginning on the Effective Date unless terminated at an earlier date in accordance with Section 3. Upon the expiration of the Term, this Agreement will automatically renew for further 12-month periods unless, at least 90 days prior to the renewal date, either party gives the other party written notice of its intention not to renew this Agreement.

3. TERMINATION

Cyncly may terminate this Agreement: (i) if, after 30 days of written notice from Cyncly, Partner has failed to cure its material breach of any of its obligations under this Agreement; and (ii) immediately upon Partner’s insolvency, assignment for the benefit of creditors, a proposal to creditors under any bankruptcy or creditor’s relief legislation, failure or threatened failure to carry on business in the normal course, or sale, assignment or transfer, voluntarily or involuntarily, of all or substantially all of its assets or voting capital stock to a direct or indirect competitor of Cyncly.

Partner may terminate this Agreement: (i) if, after 30 days of written notice from Partner, Cyncly has failed to reasonably cure Cyncly’s material breach of any of its obligations under this Agreement; and (ii) immediately upon Cyncly’s insolvency, assignment for the benefit of creditors, proposal to creditors under any bankruptcy or creditor’s relief legislation, failure or threatened failure to carry on business in the normal course.

Upon the expiration or termination of this Agreement for any reason Cyncly may at its sole option immediately suspend any outstanding license for the Software held by Partner, its clients or any third parties for which any amount due to Cyncly has not been paid in full, or which were not licensed in accordance with this Agreement. Cyncly shall not be liable to Partner for compensation, reimbursement or damages on account of the loss of prospective profits on anticipated sales under this Agreement or on account of expenditures, investments, leases or commitments made by the Partner in connection with this Agreement or otherwise in connection with its business.

Upon the termination of this Agreement for any reason: (i) Partner will return any documents or materials supplied by Cyncly, regardless of any dispute that may arise between the Parties; (ii) all rights and obligations of the Parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.

4. INDEPENDENT CONTRACTOR

This Agreement shall not in any way be considered to create any type of joint venture, partnership or any other form of association between Cyncly and Partner and in no way constitutes Partner as the agent or legal representative of Cyncly for any purpose whatsoever. Partner is not granted any right or authority to assume or create any obligation or responsibility, expressed or implied on behalf of or in the name of Cyncly or otherwise bind Cyncly in any manner whatsoever.

5. INSURANCE

Partner will obtain and maintain, at its own expense, sufficient insurance as is customarily expected from a Partner for its operations, including: (i) worker’s compensation and employer’s liability; (ii) commercial general liability, including blanket contractual liability, product/completed operations, broad form property damage, personal injury and independent consultant coverage; and (iii) business automobile liability. Partner will maintain in full force and effect any insurance required by this Section, seasonably renew all required coverage during the Term, and Partner or Partner’s insurance carrier will notify Cyncly in the event that Partner ceases to maintain, and does not replace, for whatever reasons, such required coverage.

6. INDEMNIFICATION

Cyncly represents that the Software will not infringe any applicable copyright or patent of a third party. Cyncly will defend any claim stating that the licensee’s use of the Software as originally provided to Partner under these Terms and Conditions infringes upon such applicable copyright or patent, where such infringement is not attributable to Partner’s or the licensees’ fault or their use of the Software, combined with any other software of any nature whatsoever, provided Partner: (i) gives prompt notice to Cyncly of any such third party claim; (ii) immediately upon request, grants Cyncly sole control and authority with respect to any such defense or settlement of such third party claim; and (iii) provides assistance in such defense as Cyncly may reasonably request. Partner will not, without Cyncly’s prior written consent, settle or compromise any claim, suit or action.

Partner will defend, indemnify and hold Cyncly harmless from and against any claim, liability, loss, cost or expense (including reasonable attorneys’ fees) arising out of or resulting from: (i) personal injury or death to persons, or damage to tangible property, caused by the Partner’s employees, agents or subcontractors in the performance of, or in connection with, the Software; (ii) the negligence or misconduct of the Partner’s employees, agents or subcontractors; and (iii) any breach by Partner of these Terms and Conditions, including without limitation, any representation, warranty or covenant contained in this Agreement.

7. WARRANTY; LIMITATION OF LIABILITIES

CYNCLY GUARANTEES THAT THE PRODUCT WILL SUBSTANTIALLY PERFORM AS DESCRIBED IN THE DOCUMENTATION. IF CYNCLY IS NOTIFIED, IT WILL MAKE REASONABLE EFFORTS TO RESPOND TO ERRORS AS PER THE SERVICE LEVELS. THIS WARRANTY DOES NOT COVER FAILURES CAUSED BY INCOMPATIBLE HARDWARE, OTHER SOFTWARE, FIRMWARE, OR DATA FROM THE CUSTOMER OR THIRD PARTIES.

CYNCLY WILL MAKE REASONABLE EFFORTS TO PROVIDE SUBSCRIPTIONS AND MAINTENANCE SERVICES THROUGHOUT THE TERM, EXCLUDING MAINTENANCE PERIODS.

EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THE PRECEDING PARAGRAPH, CYNCLY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. CYNCLY DOES NOT REPRESENT OR WARRANT THAT: (i) THE SOFTWARE WILL MEET PARTNER’S OR LICENSEES’ BUSINESS REQUIREMENTS; OR (ii) THE OPERATION OR USE OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, CYNCLY WILL NOT BE HELD LIABLE FOR ANY LOSS OF DATA OR RECORDS OF PARTNER OR LICENSEES, EXCEPT WHERE CAUSED BY THE WILFUL DEFAULT OF CYNCLY, ITS PERSONNEL OR SUB-CONTRACTORS.

IN ADDITION, SUBJECT TO CYNCLY’S OBLIGATION TO MITIGATE ITS DAMAGES AND EXCLUDING ANY VIOLATION OF A THIRD-PARTY INTELLECTUAL PROPERTY, THE TOTAL AGGREGATE LIABILITY OF CYNCLY, WHETHER IN CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE TOTAL AMOUNT OF MONEY THEN PAID BY THE END CUSTOMER TO CYNCLY IN THE PREVIOUS TWELVE MONTH FROM THE DATE OF THE CLAIM; OR £3,240.00 WHICHEVER IS GREATER OR, WHERE APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, CYNCLY’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTEND PERMITTED BY LAW. The disclaimer and limited liability above are fundamental to this Agreement between Cyncly and Partner.

Other than Partner to recover amounts due under this Agreement, neither Party may bring an action, regardless of form, arising out of or related to the non-performance, impossibility, default, or breach of this Agreement more than two years after the cause of action has arisen or the date of discovery of such cause, whichever is later. Neither Party may bring an action, regardless of form, arising in tort, more than two years after the cause of action has arisen or the date of discovery of such cause, whichever is later.

8. COMPLIANCE WITH LAWS AND REGULATIONS

Partner will, at its sole cost and expense, comply with all applicable laws, ordinances, rules and regulations that may be applicable within the Territory (collectively, the “Laws”) now in existence or which may be enacted or promulgated from time to time in the future relating but not limited to any and all labor, social security or tax laws and shall operate its business at all times in full compliance with all Laws.

9. CONFIDENTIALITY

In the course of this Agreement, the parties may make available to the other party, or may otherwise have access to, certain trade secrets and other proprietary or confidential information of the Parties, which includes but is not limited to the terms of this agreement, the customers/prospects as well as the specific scope/parameters of the projects or proposals. The receiving party must not disclose any such information to any third party without the disclosing parties prior written consent, unless and until such information becomes generally available to the public through no fault of the receiving party. The Parties will not use such information for any purpose other than to perform its obligations under this Agreement. Each party agrees to be liable for any breach of this confidentiality or restriction of use obligation by its employees, agents or representatives and further agrees that the disclosing party shall be entitled to equitable relief, including injunction relief and specific performance, in addition to all other remedies then available to it. The rights and obligations of the Parties under this Paragraph 7 survive any expiration or termination of this Agreement and end when such confidential information becomes generally available to the public through no fault or negligence of the receiving party.

10. NON SOLICITATION

Partner agrees that it will not, during the Term and for a period of 12 months following the termination of this Agreement for any reason, be a party or make any solicitation of clients or suppliers of Cyncly or any of its subsidiaries, to transfer business from Cyncly or any of its subsidiaries to any other person or to itself, or seek in any way to persuade or entice any employee of Cyncly or any of its subsidiaries to leave that employment or to be a party to or abet any such action.

11. INTELLECTUAL PROPERTY AND COPYRIGHT

Cyncly shall retain ownership of all components, associated copyrights and intellectual property of the Software, including but not limited to programs, scripting tools, reference material, diagrams, graphics and other documents prepared by Cyncly or its associates (including partners, employees, subsidiaries, distributors, resellers including Partner, and contractors under this Agreement, regardless of whether such components exist in writing or in any other man or machine-readable form. Such components remain, at all times, the property of Cyncly, which will be owned from the instant they are created, and ownership will include all components delivered and created in their initial condition, in accordance with the terms and conditions of this Agreement. In order to promote and assist the selling of the Software, Cyncly however agrees to make available to Partner, if and as applicable, its price lists, samples and promotional advertising. Partner will have the right, during the Term of this Agreement, to use Cyncly’s trade-marks and trade-names in promoting the sales of the Software and for the purpose of describing itself as a Cyncly Partner (or other similar term), provided that Partner complies with all instructions issued by Cyncly relating to the form and manner in which Cyncly’s trade-marks and trade-names will be used. All files, forms, brochures, books, materials, written correspondence, memoranda, documents, manuals, computer disks, scripting tools, software products and lists (including a list of clients, suppliers, products and prices) and any confidential information whatsoever pertaining to the business of Cyncly or any of its subsidiaries and associates that may come into the possession or control of Partner will at all times remain the property of Cyncly or such subsidiary or associate, as the case may be.

12. NON-ASSIGNABILITY

Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party except in the case of a merger, consolidation, or acquisition of all or substantially all of the assets of the assigning party, provided that, (1) the assigning party shall provide written notice to the other party of its intent to assign this Agreement as a result of a merger, consolidation or acquisition, (2) the assignee expressly agrees in writing to assume and be bound by all the terms, conditions, and obligations of this Agreement, (3) any assignment not in compliance with the terms of this clause shall be null and void.

13. WAIVER OF RIGHTS

The waiver or neglect of a Party to enforce any of its rights under this Agreement, including, but not limited to, the right of termination, shall not be a waiver of any of such Party’s rights in the event of any subsequent breach or breaches of any of the obligations of the other Party hereunder. No waiver by any Party hereunder shall be effective unless in writing and signed by such Party.

14. SEVERABILITY OF PROVISIONS

If any covenant or other provision of this Agreement is invalid, illegal or incapable of being enforced, by reason of any rule or law or public policy, all other conditions of this Agreement shall nevertheless remain in full force and effect, and no covenant or provision shall be dependent upon any other covenant or provision unless so expressed herein.

15. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement of the Parties with respect to the subject matter herein and cancels and supersedes all prior and contemporaneous understandings between the Parties, whether expressed or implied, written or oral, with respect to the subject matter herein. There are no provisions, representations, undertakings, agreements, or collateral agreements between the Parties other than as set out in this Agreement. Partner also acknowledges that the terms and conditions of the Agreement are fair and reasonable. This Agreement may be amended only by a written instrument executed by both Parties which states that the Parties intend to amend this Agreement.

16. BINDING EFFECT

This Agreement shall ensure to and be binding upon the Parties hereto and their respective successors and permitted assigns. This Agreement is for the benefit of the Parties hereto and nothing herein contained is intended to confer any right in any third party, except for the Parties’ successors and permitted assigns.

17. GOVERNING LAW

All disputes arising out of or in connection with these Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales. The Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims.)