This Master Partner Agreement (the “Agreement”) between Nerdio, Inc., a Delaware corporation having its principal place of business at 7061 North Kedzie Avenue, Suite 515, Chicago, Illinois 60645 (“Nerdio”), and (“Partner”), is entered into and effective as of the date “Partner” installs Nerdio Manager for MSP (the “Effective Date”). Nerdio and Partner hereby agree to the terms and conditions set forth below.
1. Orders. This Agreement governs and is incorporated into each order entered into by Nerdio and Partner (in each case, an “Order”) for Nerdio software (“Software”) and/or software related services (“Services”), in each case as specified in the Order. Each Order issued by Partner and accepted by Nerdio will be deemed to be part of and will be governed by all of the terms and conditions of, this Agreement. In the case of a conflict between an Order and this Agreement, except as expressly provided in such Order, the terms of this Agreement will govern.
2. Partner Rights and Responsibilities
2.1 Subject to the terms and conditions of this Agreement, Nerdio grants to Partner a nonexclusive, nontransferable license to install, execute and use for Partner’s business purposes the number of copies of the object-code of the Software specified in the Order.
2.2 Nerdio will deliver or make the Software available to Partner in the manner set forth on the Order. Partner will be responsible for providing all hardware, software, connectivity and data storage necessary to use the Software.
2.3 Partner may use the Software only for the purpose of providing managed service provider (MSP) and IT management services to the customer specified in each Order (each a “Partner Customer”). Partner may permit a Partner Customer to access or use the Software under a white labeling scenario if partner chooses to do so.
2.4 Partner agrees and acknowledges that: (a) Nerdio does not host the Software or store or process personal information on Partner’s behalf; (b) use of the Software does not require the submission of personal information and the Software is not designed for the storage of personal information; and (c) Nerdio will have no responsibility for any personal information used by Partner with the Software.
2.5 Partner will abide by all applicable local, state, national and foreign laws and regulations in connection with the use of the Software and Services, including, without limitation, those related to data privacy and the transmission of technical or personal data
2.6 Partner will designate and notify Nerdio of the person at Partner with responsibility for the administration of the Software and delivery of Services, including such person’s name, position, phone, fax, email, and address.
2.7 Partner will be responsible for its users’ use of the Software and Services and compliance with this Agreement.
2.8 Partner will not, and will not permit its users to:
2.8.1 decompile, disassemble or reverse engineer the Software;
2.8.2 remove from the Software any copyright notices, disclaimers or other indicia of ownership or restrictions on use; or
2.8.3 use the Software for any purpose that is unlawful or prohibited by the terms and conditions of this Agreement.
3. Support and Maintenance
3.1 Nerdio will provide support and maintenance for the Software in accordance with Nerdio’s then current Service Level Agreement.
3.2 Nerdio will provide support and maintenance to Partner, and that Partner is responsible for all support to Partner Customers
3.3 If Customer acquired the Software through a third-party reseller, referral partner or solutions provider (a “Distribution Partner”), all invoicing & billing support will be provided by the Distribution Partner.
4. Collection of Data; Audit
4.1 Partner acknowledges and agrees that Nerdio will collect and use information about Partner’s use of the Software in order to facilitate billing; the provision of software updates, product support and other services to Partner (if any); and to verify Partner’s compliance with the terms of this Agreement.
4.2 If for any reason Nerdio is unable to collect information as set forth in Section 4.1, Nerdio will have the right to gain access to, examine and audit, during normal business hours upon reasonable prior written notice to Partner, all of Partner’s locations, servers, computers, records, accounts and other information for purposes of determining Partner’s compliance with this Agreement. Partner agrees to provide reasonable assistance and access to information in the course of any such audit. Any such audit will be at Nerdio’s expense provided that, if an audit reveals that Partner has exceeded the scope and number of licenses or have otherwise breached this Agreement, in addition to acquiring additional licenses or otherwise curing such breach, Partner will reimburse Nerdio for the reasonable cost of the audit.
5. Fees
5.1 Payment. Unless stated otherwise in the Order, billings will be made through the Microsoft Azure marketplace in arrears on a monthly basis on or about the first day of each month, and payment for such invoices will be due within thirty (30) days of receipt of invoice. All payments under this Agreement will be made in United States dollars. Partner will reimburse Nerdio for expenses and costs including, without limitation, reasonable attorneys’ fees, incurred by Nerdio to collect unpaid amounts hereunder.
5.2 Taxes. Nerdio’s fees do not include sales, use, excise, occupation, value-added and similar taxes. Any additional taxes applicable to the sale or furnishing of the Software or Services or to their use by Partner relating (excluding any tax on the net income of Nerdio) that are imposed after execution of this Agreement and are not already included with the fees will be separately itemized on Partner’s invoice, and Partner will pay, or reimburse Nerdio for, the gross amount of any such taxes.
5.3 Distribution Partners. If Partner acquired the Software through a Distribution Partner and agreed to make payments through the Distribution Partner, Partner’s payment terms with the Distribution Partner will govern.
6. Term and Termination
6.1 Term. The term of this Agreement shall commence on the Effective Date and continue, unless otherwise terminated in accordance with this Agreement (the “Initial Term”). Unless notice of intent not to renew is given by either party at least ninety (90) days before the end of the then-current term, the term of this Agreement shall automatically be extended for successive one-year terms upon the same terms and conditions as the Initial Term, unless otherwise amended upon mutual agreement by the parties.
6.2 Termination without Cause. Either party may terminate this Agreement at any time by not less than ninety (90) days prior written notice to the other party, provided that no such termination will terminate or otherwise affect any Order then in effect, and this Agreement will remain in effect with respect to such Order until its completion.
6.3 Termination with Cause. Either party will have the right to terminate this Agreement or any Order (i) upon thirty (30) days written notice if the other party is in material breach of any material term, condition, warranty or covenant of this Agreement or the Order, unless prior to expiration of such period the breaching party cures such breach or (ii) immediately upon written notice if it reasonably determines that the other party’s conduct, services or products violate applicable law, infringe the intellectual property rights of a third party or pose a material threat to the terminating party’s systems, equipment, processes, business or intellectual property. Partner’s non-payment of any invoice when due will constitute a material breach by Partner.
6.4 Post Termination Obligations. Partner may continue to use the Software and Nerdio will continue to provide the Services to the effective date of any such termination. Promptly after the date of any such termination Nerdio will render a final billing to Partner, and payment for such billing will be due upon receipt. In addition, if an Order terminates prior to the expiration of its then current term for any reason other than a breach by Nerdio, within thirty (30) days of termination Partner will pay, as liquidated damages for such termination and not as a penalty, (a) all fees through the expiration of the Order’s then current term and (b) any discounts or other concessions that were provided for Partner’s purchase of the Order.
7. Confidential Information
7.1 Confidential Information. Each party understands and acknowledges that any data or information, oral or written, that relates to the other’s research, development or business activities (including without limitation any unannounced products, software or services, other clients, suppliers, and service providers, business processes and plans, finances, internal operations) which is disclosed or otherwise made available to the other party (collectively, “Confidential Information”) represent valuable confidential information entitled to protection as trade secrets. Each party will keep confidential, will not disclose, and will protect from unauthorized disclosure by its employees and agents, Confidential Information and all copies or physical embodiments thereof in any media in its possession, and will limit access to Confidential Information to those who require such access in connection with this Agreement. Each party will secure and protect the Confidential Information and any and all copies and other physical embodiments thereof in any media in its possession in a manner consistent with the steps taken to protect its own trade secrets and Confidential Information, but not less than a reasonable degree of care. Each party will take appropriate action with its employees who are permitted access to the Confidential Information to satisfy its obligations hereunder.
7.2 Exceptions. The confidentiality obligations set forth above will not apply to (a) information previously known to the receiving party without reference to Confidential Information, (b) information which is or becomes publicly known through no wrongful act of the receiving party, (c) information received from a third party under no confidentiality obligation with respect to the Confidential Information or (d) information required to be disclosed under administrative or court order or in arbitration or litigation arising out of this Agreement.
8. Indemnification, Disclaimers and Limitations of Warranties and Liability
8.1 Indemnification Obligations
8.1.1 Each party (the “Indemnifying Party”) will indemnify, defend and hold the other party and its stockholders, directors, employees and agents (in each case, an “Indemnified Party”) harmless from and against all damages and expenses of any kind (including reasonable attorneys’ fees) (collectively, “Damages”), incurred for third party claims arising out of or in connection with (a) infringement by the Indemnifying Party of any United States copyright, patent, trademark, trade secret or other intellectual property rights of any third party, (b) breach of any representation, warranty or obligation by the Indemnifying Party under this Agreement, or (c) any negligent or unlawful act by the Indemnifying Party in its performance of this Agreement, except in each case to the extent that such Damages arise out of any action by the Indemnified Party. The remedy set forth in Section 8.1.1(a) will not apply to the extent any infringement arises out of or is caused by: (w) a modification to the Software or Services not performed or provided by Nerdio; (x) Partner’s failure to promptly install and utilize an update to the Software; (y) Partner’s failure to use the Software in accordance with its documentation or this Agreement; or (z) the combination of the Software with any items not provided by Nerdio or specified in the Software’s documentation.
8.1.2 In addition to Nerdio’s obligations under Section 8.1.1, if the Software or Services becomes or is likely to become subject to a claim for infringement, Nerdio will, at its sole option and expense (i) procure for Partner the right to continue to use the affected Software or Services, (ii) replace or modify the affected Software or Services so that it becomes non-infringing, which replacement or modification must be functionally equivalent or (iii) terminate the applicable Order and refund any fees pre-paid for the time remaining in the term of the Order.
8.1.3 SECTIONS 8.1.1 AND 8.1.2 SET FORTH PARTNER’S SOLE REMEDY AND NERDIO’S SOLE LIABILITY OR OBLIGATION WITH RESPECT TO ANY CLAIM THAT THE SOFTWARE OR SERVICES INFRINGES A COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY.
8.1.4 A party seeking indemnification will promptly notify the other party in writing of any claim, provided, that failure to give notice will only relieve the Indemnifying Party of liability if the Indemnifying Party has suffered actual material prejudice by such failure. The Indemnifying Party will (a) control the defense of any such claim; (b) reimburse the Indemnified Party for any reasonable legal expenses directly incurred in such defense, as such expenses are incurred; and (c) have the right to consent to judgment on, or otherwise settle, an indemnified claim with the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; provided, that the Indemnified Party may withhold its consent if the judgment or settlement imposes an unreimbursed or continuing obligation on the Indemnified Party or does not include an unconditional release of each Indemnified Party.
8.2 Warranties; Disclaimer of Warranties
8.2.1 Nerdio warrants that (a) the Software and Services will be provided in accordance with this Agreement and the applicable Order, (b) the Software will be provided in accordance with any Service Level Agreement then in effect with respect to the Software and (c) Services will be provided in a professional manner, in accordance with generally accepted industry standards. Nerdio does not warrant that the Software or Services will meet Partner’s requirements or that the operation of the Software will be uninterrupted or error free or that all defects will be corrected. This warranty is void if failure of the Software or Services has resulted from: (a) a modification to the Software or Services not performed or provided by Nerdio; (b) Partner’s failure to promptly install and utilize an update to the Software; (c) Partner’s failure to use the Software in accordance with its documentation or this Agreement; or (d) the combination of the Software with any items not provided by Nerdio or specified in the Software’s documentation.
8.2.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (I) THE SOFTWARE AND SERVICES ARE PROVIDED AS IS AND AS AVAILABLE AND (II) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NERDIO DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND SERVICES.
8.3 Exclusion of Liability
EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4 Limitation of Liability
EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, EACH PARTY’S LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING ACTIONS TO COLLECT FEES) WILL NOT EXCEED THE FEES ACTUALLY PAID TO NERDIO UNDER THIS AGREEMENT.
9. Intellectual Property; Use of Name and Logo
9.1 Partner acknowledges that, as between Partner and Nerdio, Nerdio owns all right, title and interest in all copyright, patent, trademark, trade secret and other intellectual property rights with respect to the Software and Services. Partner understands and agrees that its use of or access to any of the foregoing Nerdio property in connection with this Agreement will not create in it any right, title or interest, in or to such property, and that all such use or access and goodwill associated with any such use or access will inure to the benefit of and be on behalf of Nerdio.
9.2 Partner grants Nerdio the limited, non-exclusive, worldwide right and license to use Partner’s company name and logo as a reference for marketing and promotional purposes on Nerdio's website and in other public and private communications. If Partner does not wish to grant these limited rights, Partner may opt-out by emailing [email protected].
10. Miscellaneous
10.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all the necessary power and authority to enter into and perform its obligations under this Agreement and (b) this Agreement has been duly authorized, executed and delivered by it and its execution and delivery of this Agreement, and the performance of its obligations and duties hereunder, will not conflict with or result in any violation or breach of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, any terms, conditions or provisions of agreement or other instrument or obligation to which it is a party or by which any of its properties or assets may be bound, except for such violations, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on it and its ability to perform its obligations under this Agreement.
10.2 Independent Contractor. Nerdio and Partner are and will remain independent contractors. The Agreement does not constitute a partnership. Neither party is a franchisee, agent or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other.
10.3 No Assignment. Neither party may sell, transfer, assign, or subcontract its rights or obligations under this Agreement without the express written consent of the other party. Any attempt to do so without such consent will be null and void. Notwithstanding the foregoing, either party may, without the other party’s consent, assign this Agreement and its rights and obligations hereunder in connection with (a) a merger, combination, consolidation or similar business combination involving the assigning party, (b) a sale of all or substantially all of the assigning party’s assets or (c) a sale of a majority of the assigning party’s outstanding voting securities.
10.4 Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in a writing that refers to this Agreement and is executed by authorized representatives of each party. No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
10.5 Force Majeure. Nerdio will not be liable or deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Agreement or other interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, or other work stoppages or any other cause beyond the reasonable control of the party affected thereby.
10.6 Notices. Any notice to be given under this Agreement will be in writing, will be deemed given upon receipt, and will be delivered in person, by e-mail or by overnight delivery service with proof of delivery, to the address set forth in the applicable Order (or such other address previously designated by the receiving party by written notice) to the attention of the receiving party’s designated primary contact.
10.7 Governing Law; Dispute Forum. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are specifically excluded from application to this Agreement. The first party initiating any legal action under this Agreement will commence that action in the state or federal courts located in the State of Delaware, and each party agrees to the exclusive jurisdiction of such courts with respect to any dispute arising under this Agreement.
10.8 Entire Agreement; Severability. This Agreement and each Order, together with any schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the parties. If any provision of this Agreement conflicts with any schedule, amendment or attachment to this Agreement, this Agreement will control with respect to the subject matter of such schedule, amendment or attachment. This Agreement supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter. If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties’ intent can be lawfully enforced. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any Partner purchase order will be subject to the terms of this Agreement and that any acceptance of a purchase order by Nerdio will be for acknowledgment purposes only and none of the terms set forth in the purchase order will be binding upon Nerdio.
10.9 Headings. The headings to this Agreement and conditions have been included solely for references and are to have no force or effect in interpreting the provisions of the Agreement.
10.10 Survival. Sections 6.4, 7, 8, 9 and 1 of this Agreement will survive any termination of this Agreement.
10.11 Notice to U.S. Government End Users. The Software and documentation are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users and U.S. Government contractors (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
10.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes
10.13 Future Programs and Addenda. Partner acknowledges and agrees that from time to time Nerdio may offer additional programs, support packages, marketing development funds (MDF), discount tiers, or other benefits (“Programs”). Nerdio will notify Partner of any such Programs by e-mail to Partner’s designated contact. Partner may elect to participate in such Programs by providing written confirmation to Nerdio in the manner specified in the notification. Any such confirmation, whether provided by Partner’s employees, contractors, or representatives using Partner’s email domain, shall be deemed binding on Partner and shall constitute a valid addendum to and part of this Agreement. In the event of conflict between any addendum and this Agreement, the terms of the addendum shall control with respect to the applicable Program.
Nerdio may modify the terms of this Agreement from time to time by posting a modified version on the Service listing page on the Third-Party Marketplace or by notifying Partner. All modifications to this Agreement that are required by law, regulation, court order, or guidance from a government regulator will be effective immediately upon posting or notice to Partner, and by continuing to use the Service after the date of such posting or notice, Partner will be bound by the modified terms. All other modifications to the terms of this Agreement will be effective upon the earlier of (a) the renewal date of an existing Subscription, or (b) thirty (30) days after the date that Nerdio posts or provides notice of the modified terms.
Executed as of the date of install, as a document under seal, by the duly authorized representatives of the two parties (“Partner” and “Nerdio”).