This Appfire Partner Agreement, and the Program Terms, (collectively, the “Agreement”) is made by and between Appfire Technologies, LLC., a Delaware limited liability company, with a principal place of business at 1500 District Avenue, Burlington, MA 01803 (“Appfire”) and the applicable partner accepting these terms (“Partner” or “you”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. By accessing the Partner Portal you indicate your assent to be bound by this Agreement. Individually, either Partner or Appfire may be referred to as a “Party” and, together, Appfire and Partner may be referred to as the “Parties”. Appfire may update these terms from time to time.
1. DEFINITIONS
“Appfire Products” means Appfire’s products available for sale via Appfire’s website, the Atlassian Marketplace, or other third party marketplaces, as updated from time to time.
“Customer” means a third party that purchases Appfire Products resulting from Partner’s efforts under this Agreement and that satisfies the requirements of the Program.
“Deal Registration Form” means the opportunity registration form that is available to Partners on the Appfire Partner Portal.
“Effective Date” means the date which Partner has accepted these terms via Appfire’s website.
“Lead” means a sales opportunity with a potential customer that Appfire provides to Partner for Partner to close.
“Marks” means all trademarks, service marks, trade names, logos and other similar proprietary rights, whether registered or unregistered, and all applications and registrations therefore.
“Partner” means the entity agreeing to this Agreement.
“Partner Benefits” means the benefits Partner is eligible to receive pursuant to this Agreement and the Program. Partner Benefits may include Leads, Co-Marketing Fees, promotional events, training, and collateral. Partner Benefits may vary depending on eligibility criteria set forth in the Program Terms.
“Program” means the Appfire Partner Program as further detailed in the Program Terms
“Program Terms” means the terms detailing the Program located at https://appfire.com/become-a-partner/ and as may be further detailed when logged in to partners.appfire.com, in each case as such program shall exist from time to time. Program Terms are subject to change and/or discontinuance by Appfire. In the event of a conflict between https://appfire.com/become-a-partner/ and https://partners.appfire.com , the terms available at https://partners.appfire.com shall prevail.
2. PROGRAM PARTICIPATION
Partner may participate in the Program accepting these Program Terms via Appfire’s website.
Partner hereby agrees that it shall abide by the Program Terms for the term of the Agreement. Partner agrees to achieve and maintain compliance with the minimum Program Terms and agrees to participate in periodic reviews by Appfire to ensure compliance. Appfire reserves the right to determine Program requirements, guidelines and criteria, and Partner’s compliance with the same.
3. MARKETING ACTIVITIES, PRODUCTS AND SERVICES
Appfire may provide Partner with information and materials intended to promote Appfire Products. Partner will use such information and materials solely for the purpose of promoting Appfire Products to potential Customers and/ or to Appfire’s existing customers, if instructed so by Appfire. Partner will not engage in any deceptive, misleading, illegal or unethical business practices and will not make any representations, warranties, guarantees or similar statements regarding Appfire Products which are inconsistent with those contained in Appfire's materials.
4. TRADEMARK LICENSE
Subject to this Agreement, each Party (“Mark Owner”) hereby grants the other Party (“Mark Licensee), a non-exclusive, nontransferable, royalty-free, worldwide license to use its Marks, solely during the term of this Agreement as necessary to perform the marketing and promotional obligations described herein. Any use of the Marks shall be in accordance with each Party’s usage guidelines available at the time. Any rights not expressly licensed herein are reserved by the Mark Owner, Nothing contained herein shall be deemed to grant either party any right, title or interest in or to the other’s Marks other than the license granted herein. As between the parties, Appfire acknowledges that Partner is the sole and exclusive owner of the Partner Marks, and Partner acknowledges that Appfire is the sole and exclusive owner of its Marks.
5. PARTNER BENEFITS
During the Term and provided Partner is not in default of any obligations hereunder, Partner may be eligible to receive Partner Benefits, as detailed in the Program Terms.
LEADS. In the event Partner qualifies for Leads as part of the Program, Appfire will provide leads to Partner via the Appfire partner portal. Unless otherwise set forth in the Program Terms, Partner has 24 hours to accept such lead. If a Lead is not accepted within 24 hours, Partner has forfeited the Lead. Partner .will provide Appfire with at least weekly updates for accepted Leads and will cooperate with Appfire’s reasonable requests for information.
DEAL REGISTRATION. Appfire may offer Partners discounts for Appfire Products for specific deals pursuant to the Program Terms. To be eligible for such discounts, Partner must submit a Deal Registration Form. Appfire may accept or reject any Deal Registration Form in its sole discretion.
6. PAYMENT TERMS
In the event Partner is entitled to payment by Appfire, as part of the Program Benefits, and unless otherwise set forth in the Program Terms,, Appfire will pay Partner all applicable fees, in US Dollars, within thirty (30) days from the end of the Program as determined by Appfire. and provided Partner has fulfilled all requirements in the Program Terms. Partners located in the US will be paid by ACH; Partners located outside the US will be paid by wire.
In addition to meeting the Program Terms, in order to receive payment under this Agreement, Partner must have: (i) agreed to the terms of this Agreement; and (ii) submitted to Appfire the necessary account and tax documents (i.e., a completed Form W-9 for U.S.-based Partners).
7. TAXES
Partner is responsible for payment of all taxes applicable to the Partner Rebates. Partner will be assessed sales tax unless Partner provides Appfire with a valid reseller certificate that indicates tax should not be applied to the Partner Rebate amount. All amounts payable by Appfire to Partner are subject to offset by Appfire against any amounts owed by Partner to Appfire.
8. CONFIDENTIALITY
The Parties agree and acknowledge that, as a result of entering into and performing this Agreement, each Party will share with and have access to certain confidential information of the other Party’s business, including but not limited to a Party’s business and pricing programs and information, capabilities, software technology, product plans, customer and prospect information, specifications, techniques, processes, inventions, methodologies, and other information or material, owned, possessed or used by either Party which is at any time so designated confidential or any information that reasonably should be understood to be confidential and proprietary (the “Confidential Information”). Each Party agrees to take commercially reasonable security measures, at least equal to that which each Party uses to protect its own confidential information to prevent the unauthorized use, duplication, or distribution of the other Party’s Confidential Information. A Party may disclose the other Party’s confidential information if required by any judicial or government request, requirement, or order, provided, however, that such Party will promptly notify the other Party of any such request, requirement, or order, and will cooperate with the other Party to contest any such request, requirement, or order.
9. TERM; TERMINATION
This Agreement shall commence on the Effective Date and shall remain in effect until terminated by Appfire. This Agreement may be terminated by Appfire, with or without cause, upon notice to Partner at any time, which may be made by posting a notice on the Appfire website. Partner will not have any right to any indemnity or payment of compensation or damages resulting from Appfire's termination of this Agreement and expressly waives any and all rights to the same. Upon any expiration or termination of this Agreement, Partner agrees to immediately cease using the Appfire Marks and marketing materials provided hereunder. Termination of this Agreement shall not affect any existing rights for Customers to use the Appfire Products subject to the Appfire EULA.
10. WARRANTIES
Partner warrants that (a) except as specifically provided herein, Partner (or any of its employees, agents and representatives) has not paid a referral fee or any part thereof to any employee, agent or representative of a Customer or prospective customer in connection with such transaction; (b) Partner (or any of its employees, agents and representatives) has not engaged in any illegal activity related to such transaction, and (c) Partner (or any of its employees, agents and representatives) has not made any representation on behalf of Appfire to a Customer.
EXCEPT AS OTHERWISE SET FORTH HEREIN, APPFIRE MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, TO PARTNER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
11. INDEMNIFICATION
Partner agrees to indemnify, defend and hold Appfire, its affiliates and their respective directors, officers and agents (“Appfire Indemnified Parties”) harmless, from and against any and all liabilities, damages, losses, costs and expenses, including, but not limited to, reasonable attorneys’ fees and disbursements (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding brought by a third party against Appfire Indemnified Parties (each a “Claim”), arising from or relating to (a) the marketing, promotion or use by Partner of the Appfire Products in any manner which violates this Agreement, including any unauthorized representations, warranties or guarantees made by Partner concerning Appfire Products or any applicable law, rule, or regulation, (b) violation of applicable law, or (c) arising from Partner’s acts or omissions that are inconsistent with this Agreement.
12. LIMITATION OF LIABILITY
OTHER THAN CLAIMS RELATED TO BREACHES OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS REVENUE OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPFIRE’S TOTAL CUMULATIVE LIABILITY TO PARTNER FOR ANY AND ALL MATTERS ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE PARTNER REBATES PAID IN THE PRECEDING TWELVE (12) MONTH PERIOD.
13. OWNERSHIP
Nothing herein will be deemed to transfer to Partner title to any intellectual property rights (including, without limitation, any trademark or copyright) in or to any Appfire Products or any associated documentation or training materials. Notwithstanding anything to the contrary herein, Partner may share with Appfire information and data from Partner’s Customers and prospects. Based on such data, Appfire may (i) compile statistical and other information related to the performance, operation and use of the Appfire Products, and (ii) use, and share data from the Appfire Products, environment in aggregated form for marketing, promotional, security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as ‘Appfire Product Analyses”). Appfire Product Analyses will not incorporate any Customer data, in a form that could serve to identify Customer or an individual. Appfire retains all intellectual property rights in Appfire Product Analyses. Partner may share with suggestions, enhancement requests, recommendations or other feedback relating to the operation or functionality of the Appfire Products (“Feedback”). Appfire shall own all right title and interest in any Feedback.
14. COMPLIANCE AND DATA PRIVACY
Partner shall comply with all applicable federal, state and local laws, rules and regulations in connection with the performance of this Agreement, including without limitation all applicable U.S. federal and state export, laws and regulations and the Foreign Corrupt Practices Act of the United States (“FCPA”).
The performance of this Agreement may require “processing” of “personal data”, as both terms may be defined by applicable data protection laws and regulations, including, in particular: (i) the General Data Protection Regulation (“EU GDPR”), (EU) 2016/679; (ii) the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (“Swiss DPA”); (iii) the UK Data Protection Act of 2018 and any applicable national legislation that replaces or converts to domestic law of the UK, the GDPR, or any other law related to data privacy as a consequence of the UK leaving the EU (“UK GDPR”); (iv) any legislation and/or regulation implementing or made pursuant to the foregoing; and (v) the US State Privacy Laws, including but not limited to the California Privacy Laws (including California Consumer Privacy Act, “CCPA”), (vi) and any other laws and regulations in the EU, Switzerland, the UK or US, which relate to data privacy, the processing or protection of personal data or data security and which are applicable, in each case as may be amended, suspended or replaced from time to time.
The Partner may process personal data of data subjects being Partner’s customers, who are interested in receiving marketing information pertaining to products of 3rd party vendors whose products are distributed via the Atlassian Marketplace or similar third party marketplace (“Sale Contacts”). The Partner hereby confirms that it is a “data controller”, as this term may be defined by applicable data protection laws, in particular, the GDPR, of the Sale Contacts. The Partner declares that personal data of the Sale Contacts have been collected and are processed by the Partner in conformity with applicable data protection laws, as well as it confirms that: (i) each natural person, whose personal data is processed by the Partner as a Sale Contact, has consented to the processing of his/her personal data for marketing purposes, in particular for purposes related to direct marketing (emails, messages, etc.) pertaining to products and services of 3rd parties, i.e. entities other than the Partner – unless another legal basis applies for such processing of personal data; (ii) each natural person, whose personal data is processed by the Partner, has been informed, in a concise, transparent, intelligible and easily accessible form, of the purpose of data processing carried out by the Partner, including, in particular, of Partner’s possibility to disclose Sale Contact’s personal data to Appfire for Appfire’s own marketing purposes; (iii) each natural person, whose personal data is processed by the Partner as a Sale Contact, has consented to sharing of his/her personal data to Appfire, as well as to the further processing of his/her personal data by Appfire for Appfire’s own marketing purposes; the Partner confirms that the consent has not been canceled as for the day of data disclosure to Appfire; (iv) it shall notify Appfire of a cancellation of the consent mentioned above, without undue delay; (v) prior to sharing the data with Appfire, it has provided the Sale Contacts with Appfire’s Privacy Notice, available at: https://appfire.com/privacy-policy/; the Partner shall be able to demonstrate fulfillment of this obligation at Appfire’s request;
The Partner shall be fully responsible for its compliance with this Section 14 and for the accuracy of all statements set out herein.
14A. PROCESSING OF APPFIRE’S SALE CONTACTS. For purposes of the proper performance of this Agreement, Appfire may share with Partner data from Appfire’s Customers (“Appfire’s Sale Contacts”), in order for Partner to support Appfire, in particular, with further sales and/or onboarding processes with regards to Appfire’s existing and/or prospective customers.
For the avoidance of doubt, Partner’s role is to process Appfire’s Sale Contacts for the express purposes above, in each case on behalf of Appfire only, and not for Partner’s own purposes. For example, the Partner may not process Appfire’s Sale Contacts for Partner’s own marketing or sale activity relating to services and products of the Partner or 3rd party vendors. The processing of the Appfire’s Sale Contacts - as described in this clause 14A, shall be carried out under the Appfire Partner Data Processing Addendum available at appfire.com/partner-data-processing-addendum (“DPA”), which constitutes an integral part of this Agreement.
For purposes of the DPA, with regards to Appfire’s Sale Contacts, Appfire shall be a “Controller” (or a “Business” under the CCPA), and the Partner shall be a “Processor” (or a “Service Provider” under the CCPA).
15. MISCELLANEOUS
This Agreement does not govern the licensing or sale of Appfire Products, which are subject to the terms of Appfire’s EULA available at https://appfire.com/eula/. The parties will be deemed to be independent contractors. Nothing in this Agreement shall create any legal partnership, joint venture, agency, franchise, employment relationship or any other relationship between the parties beyond the relations set out in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law principles. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of record of the Commonwealth of Massachusetts in Suffolk County or the United States District Court, Eastern District of Massachusetts. Each Party consents to the exclusive jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. Partner may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Appfire. This Agreement constitutes the entire agreement between Appfire and Partner, superseding any prior or contemporaneous oral or written agreements between the Parties with respect to the Program and the Appfire Products available under the Program. Terms and conditions of this Agreement are severable. If any provision is deemed illegal or unenforceable, all other provisions will remain in effect. The provisions of Sections 8, 9, 10, 11, 12, 13, 14, 14A and 15 will survive termination of this Agreement.