Sommaire
Sommaire
This Solutions Partner Program Agreement, which includes any Program Plans that are incorporated into it and all Program Policies (collectively, “Agreement”), forms a legally binding agreement between you and RealtimeBoard, Inc. dba Miro (“Miro”), and is effective as of the date of Miro’s written acceptance of your application to join the Program (“Effective Date”). Please note that any application to join the Program is automatically denied if you do not receive written acceptance from Miro within 30 days of the application’s submission date. Definitions of capitalized terms are found in Section 11 (Definitions) or contextually below.
This Agreement governs your participation in Miro’s solutions partner program (“Program”). Your continued participation in the Program constitutes your assent to this Agreement, including your continued participation once 10 days have passed from Miro notifying you of any modifications made to this Agreement. You are prohibited from participating in the Program unless you have assented to this Agreement. If you do not agree with this Agreement, you may not participate in the Program.
If you are accepting this Agreement on behalf of your company, all references to “you”, “your”, and “yourself” in this Agreement mean your company and its Affiliates, and you represent that (a) you have full legal authority to accept this Agreement on behalf of your company and its Affiliates, (b) that you have read and understand this Agreement, and (c) that you assent, on behalf of your company and its Affiliates, to this Agreement.
You may not participate in the Program for purposes of monitoring Miro, its applications, or its services, including the functionality or performance thereof, or for any other benchmarking or competitive purposes.
Under the Program, you have the rights and responsibilities described in this Agreement, including any plans describing Program activities that are incorporated into this Agreement (“Program Plans”) and the Program Policies. Any Program Plans attached hereto as exhibits are agreed as of the Effective Date.
2.1 Miro SaaS Service. No right to use the SaaS Service is granted to you under this Agreement except to the extent otherwise stated in a Program Plan or the Program Policies. For a Customer to use the SaaS Service, the Customer must create its own account and accept the Customer Agreement directly with Miro. You may not do so on a Customer’s behalf. You may only access a Customer’s SaaS Service account as separately arranged between you and the Customer.
2.2 Miro Developer Platform. This Agreement does not grant any rights to Miro’s developer platform, which is subject to the Miro Developer Terms of Use located at https://m.turbidity.top/legal/developer-terms-of-use/. Neither party is developing intellectual property under this Agreement for or with the other party.
2.3 Subcontracting for Miro. This Agreement does not grant you any rights to act as a subcontractor of Miro for any purpose, including without limitation for the purpose of providing Miro professional services to any Customer on Miro’s behalf. To become an authorized Miro subcontractor, you must execute a separate agreement with Miro.
3.1 Use of Brand Elements.During the Term, subject to this Agreement, each party grants the other the right to use and display its Brand Elements solely to identify the parties’ relationship under this Agreement and for mutually agreed marketing activities.
3.2 Approvals and Usage Limits. Either party’s use of the other party’s Brand Elements is subject to the other party’s prior approval and any usage guidelines it provides in writing. After initial approval, substantially similar uses do not require subsequent approval. In addition, any press release or other public announcement relating to this Agreement must be approved by each party in advance. You hereby approve Miro’s use of your Brand Elements to promote your participation in the Program. Each party will promptly cease any problematic use of the other party’s Brand Elements upon request.
3.3 No Disparagement. You will not disparage Miro or its offerings.
4.1 Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Miro’s use rights in this Agreement, you retain all intellectual property and other rights in your Brand Elements (including all goodwill arising from their use). Except for your use rights in this Agreement, Miro and its licensors retain all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use), the SaaS Service, and any related Miro technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Miro.
4.2 Feedback. If either party provides the other party with feedback about the other party’s offerings, the recipient may use the feedback without restriction. This is not a license under the feedback provider’s patent rights.
4.3 No Fees or Expenses. Except as expressly set out in a Program Plan or the Program Policies, there are no fees, revenue share, or other amounts due from either party to the other under this Agreement. Each party is solely responsible for its expenses and costs of performing under this Agreement.
5.1 Term. This Agreement will have an initial term of 12 months and will renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current term ends (the “Term”).
5.2 Termination.
5.2.1 Either party may terminate this Agreement for any or no reason upon 30 days’ notice to the other party.
5.2.2 Either party may terminate this Agreement if the other party fails to cure a material breach within 10 days after notice of such breach.
5.2.3 Miro may terminate this Agreement effective immediately upon notice if it ceases to offer the Program or if it determines that termination is necessary to comply with laws or to avoid liability or harm to its services, reputation, or users.
5.2.4 If Miro modifies the terms of this Agreement, you may terminate this Agreement with immediate effect by sending Miro written notice of termination within 10 days after Miro sends notice of the modification.
5.3 Effect of Termination. Upon any expiration or termination of this Agreement, (a) all authorizations and licenses granted under this Agreement will terminate, (b) each party will cease using the other party’s Brand Elements under Section 3 (Marketing) (subject to a reasonable take-down period), and (c) the receiving party will delete, upon written request of disclosing party, the disclosing party’s Confidential Information and if requested certify deletion. Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions. Neither party will have any liability arising solely from a permitted termination of this Agreement.
5.4 Survival. These Sections survive termination or expiration of this Agreement: Sections 3.2 (Approvals and Usage Limits), 4 (Intellectual Property Rights), 5.3 (Effect of Termination), 5.4 (Survival), 6.3 (Disclaimer of Warranties), 7 (Indemnification), 8 (Confidential Information), 9 (Limitation of Remedies and Damages), 10 (General), 11 (Definitions), any restrictions provisions of a Program Plan or the Program Policies, or any other provisions which are designated to survive under a Program Plan or the Program Policies. Except where an exclusive remedy is expressly provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
6.1 Conduct. In performing this Agreement, you will not (a) hold yourself out as a reseller or distributor of Miro’s offerings unless authorized to do so under a separate agreement with Miro, (b) hold yourself out as a subcontractor of Miro unless authorized to do so under a separate agreement with Miro, (c) engage in any misleading or deceptive conduct detrimental to Miro, or (d) make any representations, warranties, or commitments on Miro’s behalf or regarding Miro’s offerings.
6.2 Warranties. Each party represents and warrants to the other that (a) it has the required power and authority to enter into and perform its obligations in this Agreement, (b) its execution and performance of this Agreement will not violate any other agreement to which it is a party, and (c) it will comply with all applicable laws in its performance of this Agreement, including Anti-Corruption Laws and Privacy Laws, and will not give, offer, or promise any item of value to any official, person, or entity in violation of Anti-Corruption Laws.
6.3 Disclaimer of Warranties. Except as expressly set out in this Agreement, neither party makes any warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or non-infringement. Miro provides the SaaS Service, its Brand Elements, and all other materials “AS IS” and “AS AVAILABLE.”
7.1 Obligations. Each party will defend, indemnify, and hold harmless the other party and its officers, directors, employees, representatives, and agents from and against any third-party claims, demands, losses, costs, expenses, damages, and liabilities (including reasonable attorneys’ fees) to the extent arising from or relating to (a) an allegation that the indemnifying party’s Brand Elements, when used as authorized in this Agreement, infringe third-party trademark or copyright rights or (b) the indemnifying party’s breach of Section 6 (Conduct and Warranties). You will defend, indemnify, and hold harmless Miro and its officers, directors, employees, representatives, and agents from and against any third-party claims, demands, losses, costs, expenses, damages, and liabilities (including reasonable attorneys’ fees) to the extent arising from or relating to (i) any Deliverable provided to a Customer or (ii) an allegation that any of your offerings provided to Customer, when used by Customer, infringe a third party’s intellectual property rights.
7.2 Procedures.The indemnifying party’s obligations in this Section 7 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim, and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than ceasing use of infringing materials). The indemnified party may participate in a claim with its own counsel at its own expense.
8.1 Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Miro’s Confidential Information includes any technical or performance information about the SaaS Service.
8.2 Obligations. As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 8 and they are bound to confidentiality obligations no less protective than this Section 8.
8.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations, or (d) it independently developed without using the disclosing party’s Confidential Information, as demonstrated by documentation. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
8.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 8.
9.1 Consequential Damages Waiver. Subject to Section 9.3, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
9.2 Liability Cap. Subject to Section 9.3, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in the aggregate the greater of (a) $10,000 USD or (b) the amounts paid or payable by either party during the 12 months prior to the date the liability was triggered under this Agreement.
9.3 Excluded Claims. Nothing in Section 9.1 or 9.2 will be taken to limit or exclude liability for (a) either party’s breach of Section 8 (Confidential Information), (b) amounts payable to third parties by the indemnifying party under Section 7 (Indemnification) (“Indemnity Liability), or (c) your breach of the restriction provisions of any Program Plan or the Program Policies. However, the indemnifying party’s aggregate Indemnity Liability is limited to $1,000,000 USD.
9.4 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10.1 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities. Either party may terminate this Agreement on written notice to the other party within 30 days of such assignment. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
10.2 Affiliates and Contractors. Each party may use its Affiliates and contractors to exercise its rights and fulfill its obligations under this Agreement but remains responsible for their compliance with this Agreement.
10.3 Governing Law, Jurisdiction and Venue. This Agreement is governed by (i) the laws of the State of California and the United States if you are located in North or South America or (b) the laws of the Netherlands if you are located outside of North or South America, in each case without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be (x) the state and United States federal courts located in San Francisco, California when the laws of California apply or (y) the courts of Amsterdam when the laws of the Netherlands apply, and in each case both parties submit to the personal jurisdiction of those courts.
10.4 Notices. Notices, approvals, and consents under this Agreement must be in writing to the addresses below, with email sufficient for operational matters. Either party may update its address with notice to the other party. All notices to Miro must include a copy emailed to legal@m.turbidity.top.
10.5 Entire Agreement. This Agreement (which, for clarity, includes the Program Policies and Program Plans) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements, verbal or written, regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation.
10.6 Modifications. Miro may modify this Agreement (which, for clarity, includes the Program Plans and Program Policies) from time to time, and Miro will provide 10 days’ notice to you of the modification through its website or via email. If you do not agree to the modification, you may terminate this Agreement pursuant to Section 5, above.
10.7 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
10.8 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
10.9 Relationship of the Parties. The parties are independent contractors, not agents, joint venturers, or partners, despite use of the term “partner”. Subject to any confidentiality obligations, any express restrictions, and each party’s intellectual property rights, as described in this Agreement, this Agreement does not limit either party from entering into any partner, customer, referral, resale, or other agreement with any party during or after the Term. Nothing limits Miro in managing its relationships with Customers. Rights granted in this Agreement are non-exclusive and (except as set out in this Agreement) non-sublicensable and non-transferable.
10.10 Export. You agree to comply with all relevant U.S. and foreign export and import laws in using the SaaS Service. You (a) represent and warrant that you are not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agree not to access or use the SaaS Service in violation of any U.S. export embargo, prohibition, or restriction, and (c) will not submit to the SaaS Service any information controlled under the U.S. International Traffic in Arms Regulations.
10.11 Government End-Users. The SaaS Service and related documentation were developed at private expense and are “commercial items”, “commercial computer software”, “commercial computer software documentation” and “technical data”, as defined in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. All use on behalf of the U.S. Government is limited as set out in this Agreement.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Anti-Corruption Laws” means all applicable anti-bribery and anti-corruption laws and regulations, including the United States Foreign Corrupt Practices Act, U.K. Bribery Act 2010, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
“Brand Elements” means the trademarks, service marks, names, logos, images, collateral, or similar materials provided by a party for use under this Agreement.
“Customer” means a prospective or actual customer of the SaaS Service.
“Customer Agreement” means the then-current version of Miro’s Master Cloud Agreement found at https://m.turbidity.top/legal/master-cloud-agreement/ or other applicable customer agreement with Miro.
“Deliverable” means any deliverable provided to a Customer by you (including by any of your Affiliates, contractors, or other agents) pursuant to a contract for services.
“Privacy Laws” means all worldwide data protection and privacy laws and regulations applicable to any personal data in question, including, where applicable, EU/UK Data Protection Law, the California Consumer Privacy Act, the California Consumer Privacy Rights Act, the Australian Privacy Act 1988, and the Japanese Act on the Protection of Personal Information.
“Program Policies” means the then-current version of Miro’s Program policies, located here.
“SaaS Service” has the meaning assigned to it in the Customer Agreement. For clarity, this definition includes any add-on paid features of the SaaS Service purchased by the Customer.