Solution Partner Agreement (UK and EMEA)
Last Updated: December 21, 2022
This Solution Partner Agreement (the “Agreement”) is made and entered into between Contentstack Inc., on behalf of itself and its Affiliates (as defined herein), a Delaware corporation having offices at 315 Montgomery St., Suite 909, San Francisco, CA 94104 (“Contentstack”), and the undersigned entity (“Partner”). This Agreement shall become effective upon the date of execution of the Party to sign last (“Effective Date”). Contentstack and Partner, as appropriate to the context, hereinafter are each referred to individually as a “Party” or collectively as the “Parties”. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. Contentstack offers to its customers various digital content management products and services (collectively, “Contentstack’s Services”) and has created a sales partnership program (the “Contentstack Partner Program”) to enable qualified entities the opportunity to:
1.1.1. become non-exclusive partners at one or more levels in order to enhance, market and/or communicate the interoperability of Contentstack’s Services and partner products;
1.1.2. deliver development, integration, deployment and/or similar project related professional services alongside Contentstack’s Services, as further described in Section 2.3; and
1.1.3. allow Contentstack to refer to Partner, on a non-exclusive basis, potential customer or marketing opportunities to sell Partner products and/or services (“Partner Products”).
1.2. Contentstack desires to make Partner a member of the Contentstack Partner Program pursuant to the terms and conditions of this Agreement, which may result in compensation for Partner. Partner also may desire to compensate Contentstack for resulting purchases of Partner Products arising from Contentstack’s referrals to Partners pursuant to the terms and conditions of this Agreement.
2. PROGRAMS AND SERVICES.
2.1. As part of a broader conversation with potential customers, which may include discussions about Partner Products, Partner may from time to time wish to introduce Contentstack and Contentstack’s Services to its existing customers and potential customers who may be interested in doing business with and entering into a commercial agreement for Contentstack’s Services with Contentstack. In such circumstances Contentstack shall engage with Partner to agree what, if any, sales cooperation from Contentstack is appropriate to support Partner’s sales process.
2.2. Similarly, Contentstack’s sales teams may identify opportunities to introduce Partner to its existing customers and potential customers who are interested in Partner Products in relation to Contentstack’s Services. In such circumstances, Partner shall engage with Contentstack to agree what, if any, sales cooperation from Partner is appropriate to support Contentstack’s sales process.
2.3. The Contentstack Partner Program, comprises the following terms and conditions:
2.3.1. Available on a non-exclusive basis only to entities approved by Contentstack (herein, the “Solution Partners”) who perform Design, UX/UI, Strategy, and/or Development services.
2.3.2. Solution Partners receive a Contentstack “Sandbox” account (and any services therein) (“Sandbox Account”) free of charge, to enable building Proof of Concepts for the Solution Partner’s customers (subject to Sections 4.5 and 5.2).
2.3.3. Contentstack and Solution Partner may each designate an Account Manager or Account Executive for performance of their respective obligations under this Agreement. Contentstack and Solution Partner shall refer potential customers to each other via a registration process (“Registered Deals”). Partner may require the use of a specified form or submittal on a portal to qualify and approve Registered Deals referred to them. For all potential customers referred to Contentstack by Solution Partner, Solution Partner must enter in and complete all information for such referral on Contentstack’s online Partner Hub system (“Partner Hub”) to qualify as a Registered Deal.
2.3.4. Contentstack and Solution Partner will each be responsible for coordinating sales efforts to pursue sales, as well as for closing related sales with Registered Deals referred to them from the other Party. Any Registered Deals with whom sales are properly closed shall be deemed “Converted Clients”.
2.3.5. No compensation shall be due to the Solution Partner for participating in this program or for securing Converted Clients unless and only if, the Parties have mutually executed a Referral Compensation Amendment or a mutually executed addendum.
3. PARTNER ENABLEMENT.
Contentstack will provide Partner with access to the Contentstack Partner Program content and/or other Contentstack-designated external knowledgebase(s) that will describe further the benefits and requirements of the Contentstack Partner Program, as well as provide additional information that will assist Partner’s marketing, product, professional services and sales activities (collectively, “Contentstack IP").
4. OBLIGATIONS OF PARTIES.
4.1. Nothing in this Agreement shall obligate either Party to enter into an agreement with a customer or limit either Party’s right to cease negotiations with or terminate any concluded agreements with its customers. Contentstack shall not be liable for any damages caused to Partner by the failure to enter into any agreements with any customers or by the expiration or termination, either preliminary or otherwise, of any agreement with any customers.
4.2. The Parties agree that nothing in this Agreement shall prevent or restrict Contentstack from introducing, commercializing, marketing, and/or distributing its services and/or products (including, without limitation, Contentstack’s Services) directly or indirectly by using distributors, agents or any other third parties, or from continuing to conduct its business activities or arrangements that existed on the Effective Date or that otherwise come into being outside the scope of this Agreement.
4.3. The Parties shall comply with all applicable laws, rules and regulations, including, without limitation, the US Foreign Corrupt Practices Act, the UK Bribery Act 2010 and rules of the Office of Foreign Asset Control and all similar laws of any applicable jurisdiction (collectively, the “Anti-Bribery Laws”) at all times in connection with this Agreement.
4.4. Each Party hereby warrants that:
4.4.1. neither it nor, to its knowledge, any of its officers, employees or agents, have been a party to or involved in any agreement, understanding, arrangement or conduct which violated any applicable Anti-Bribery Laws and it has not received and has no knowledge of any reason it would receive any complaint or written communication with respect to any conduct which might violate the Anti-Bribery Laws;
4.4.2. it shall not permit any of its Affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents, to promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any government official or other person in violation of the Anti-Bribery Laws; and
4.4.3. it shall, and shall cause each of its Affiliates to, maintain systems of internal controls (including accounting systems, purchasing systems and billing systems) to ensure compliance with Anti-Bribery Laws.
4.5. Except as expressly set forth in this Agreement, Partner shall not, directly or indirectly:
4.5.1. sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage in the Contentstack IP or Sandbox Account;
4.5.2. allow access or use of the Contentstack IP or Sandbox Account other than as permitted in this Agreement;
4.5.3. remove, suppress, alter, destroy or modify any copyright, trademark or proprietary notice or markings in the Contentstack IP or Sandbox Account;
4.5.4. incorporate or merge the Contentstack IP or Sandbox Account into another software product or otherwise access or use the Contentstack IP or Sandbox Account to create, modify or enhance any software or competing service;
4.5.5. disassemble, decompile, reverse engineer, make error corrections to the Contentstack IP or Sandbox Account or otherwise attempt to derive the structure, sequence or organization of source code, except as permitted by applicable law to achieve interoperability of the Contentstack IP or Sandbox Account with the operation of other software or systems used by Partner in relation to Contentstack Partner Program;
4.5.6. modify, alter, adapt, recast, transform or otherwise prepare a derivative work of the Contentstack IP or Sandbox Account;
4.5.7. use the Contentstack IP or Sandbox Account to store or transmit or authorize a third party to store or transmit malicious code, infringing, harassing, libelous or otherwise unlawful, illegal or tortious material, or to store or transmit material in violation of third party privacy, intellectual property or proprietary rights;
4.5.8. otherwise use or access the Contentstack IP or Sandbox Account in breach of this Agreement and/or any applicable laws, rules and/or regulations;
4.5.9. copy any features, functions or graphics of the Contentstack IP or Sandbox Account for any purpose;
4.5.10. use the Contentstack IP or Sandbox Account, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for external publication without Contentstack's prior written consent;
4.5.11. permit or allow access or use of the Contentstack IP or Sandbox Account by any third party or permit or allow any third party to use the Contentstack IP or Sandbox Account for its own purposes or for the purposes of any of its own customers;
4.5.12. intentionally interfere with or disrupt the integrity or performance of the Contentstack IP or Sandbox Account or any data contained therein;
4.5.13. disclose the results of any benchmark, performance tests or results of the Contentstack IP or Sandbox Account to any third party;
4.5.14. use the Contentstack IP or Sandbox Account for the purposes of developing, directly or indirectly, a product competitive to the Contentstack IP or Sandbox Account;
4.5.15. attempt to gain unauthorized access to Contentstack IP or Sandbox Account or its related systems or networks;
4.5.16. breach any security feature readily apparent in Contentstack IP or Sandbox Account;
4.5.17. combine or use the Contentstack IP or Sandbox Account with any third party hardware, networks, code, data, or services that infringes any third party right;
4.5.18. use the Contentstack IP or Sandbox Account to advocate, sell or promote any services, goods or activities that are illegal or otherwise creates liability for Contentstack;
4.5.19. use or access the Contentstack IP or Sandbox Account in any manner that interferes with, degrades, or disrupts the integrity, quality or performance of any of Contentstack’s technologies, services, systems or offerings (including the Contentstack IP or Sandbox Account); or
4.5.20. permit any third party to do any of the foregoing.
The restrictions in this Section 4.5 shall apply to the whole, and any part(s) of, the Contentstack IP or Sandbox Account.
5. WARRANTIES AND DISCLAIMER.
5.1. Mutual. Each Party hereby warrants to the other Party that it:
5.1.1. has all necessary power, authority, permits, licenses and other rights to enter into this Agreement and perform its obligations hereunder, without violation of any other agreement to which it is a party; and
5.1.2. as well as all of its personnel and representatives are not affiliated, and do not have any contractual, fiduciary, familial or other legal relationship, whether as an independent contractor, agent, representative, advisor, consultant or otherwise, with the other Party’s employees or potential customers submitted by a Party hereunder in a manner that would constitute a conflict of interest or create an appearance of impropriety and that any such potential conflict will be disclosed in advance to the other Party.
5.2. Partner Warranty. Party hereby warrants that Partner’s use of the Sandbox Account (or any services therein) shall:
5.2.1. be for demonstration and use-case or proof of concept building purposes only; and
5.2.2. comply with all applicable laws, rules and regulations.
5.3. Indemnification. Each Party shall indemnify and hold harmless the other Party from and against any claim, suit or proceeding brought against the other Party or any of its Affiliates by a third party alleging facts or circumstances that, if true, would constitute fraud, gross negligence or willful misconduct, which shall include but not be limited to the breach of Sections 6.1, 6.2 or 9 of this Agreement by Partner, any of its Affiliates or their or its Affiliates’ representatives.
5.4. EXCLUSIONS. EXCEPT AS STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR MATERIALS PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE EXTENT THAT IT IS LAWFUL TO DO SO.
6. TRADEMARKS & MARKETING.
6.1. Subject to the terms of this Agreement, each Party will have the limited license to use and display the other Party’s (or the other Party’s Affiliates’) trademarks, logos, trade names and other designations of source (“Marks”) as they may appear with respect to (as applicable) Contentstack’s Services or Partner Products, solely for the purposes set forth in this Agreement. All such use of the Marks shall be pre-approved by the Party owning the Marks (the “Mark Owner”) and shall be in accordance with the Mark Owner’s trademark usage guidelines provided from time to time. Neither Party will use, register or take other action with respect to any Mark of the other Party anywhere in the world, except to the extent authorized in advance by the Mark Owner in writing. A Party will cease or modify any use of the Marks promptly upon the Mark Owner’s request. All goodwill in the Marks will inure for the sole benefit of the Mark Owner.
6.2. All marketing materials (including, but in no way limited to, a press release and online content/copy) produced by a Party (if any) intended to market and promote the other Party and (as applicable) Contentstack’s Services or Partner Products shall be produced at the Party’s sole cost and expense, shall comport with reasonable standards of good taste, and shall comply with:
6.2.1. the other Party’s then-current advertising and marketing guidelines and rules, which may be updated from time to time and provided to the other Party;
6.2.2. this Agreement; and
6.2.3. all applicable laws.
6.3. A Party shall have the right to review the other Party’s marketing materials and to withhold approval for the use of the Party’s or Affiliates’ Marks. Partner shall have no right to make any representations or warranties not expressly authorized by Contentstack with respect to Contentstack or Contentstack’s Services. Both Parties are strictly prohibited from bidding on any terms or keywords or any other triggering mechanisms with any search engines or contextual or behavioral advertising services related to or that mentions or uses the other Party, or any Marks or other marks owned by the other Party or its respective Affiliates, whether registered or unregistered.
6.4. Partner agrees to list Contentstack, including Contentstack’s Marks with hypertext links to Contentstack’s website (i) on Partner’s webpages listing Partner’s partners and related partner applications; and (ii) within any of Partner’s services that list Partner’s partners and related partner applications. Contentstack shall provide Partner with the relevant Contentstack Mark for use in this context. The foregoing obligation shall apply only to the extent Partner develops and implements generally a partner program that is relevant to the relationship and activities contemplated by this Agreement. Partner hereby authorizes Contentstack to maintain hypertext links from the Contentstack website to Partner’s website from within the Contentstack partner webpages when made public by Contentstack.
6.5. Partner agrees that Contentstack may announce the formalization of a partnership in the form of a blog and/or press release and allow use of Partner’s Marks on the Contentstack website and promotional material solely for the purpose of referring to Partner’s participation in the Contentstack Partner Program.
6.6. Partner makes no claim to, and acknowledges that Contentstack owns all rights, title and interest (including all related IPRs and all derivative works) in Contentstack’s Services, the Sandbox Account and Contentstack IP, All rights not expressly granted to Partner in this Agreement with respect to Contentstack’s Services, the Sandbox Account and Contentstack IP are reserved by, and for, Contentstack. “IPRs” shall mean any and all intellectual property rights, including registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade secrets, trademarks, service marks, trade names, domain name rights, know-how, rights of confidence or other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world from time to time.
7. RELATIONSHIP OF THE PARTIES.
The Parties shall bear their own costs and expenses arising while performing their obligations under, or in connection with, this Agreement, unless otherwise agreed in writing between the Parties. The Parties are independent contractors and shall not act as an employee, worker, agent, subcontractor or partner of the other Party. Nothing in this Agreement is intended to create or imply a partnership, joint venture or other agency relationship between the Parties. Neither Party shall, in any manner, hold itself out as an agent of, or partner with, the other Party. Neither Party has authority, whether apparent, actual, ostensible or otherwise, to act on behalf of the other Party or to enter into any contract, incur any liability or impose any legal obligation or to make any representation on behalf of the other Party. Each Party is solely responsible for its respective taxes, withholdings, and other similar statutory obligations.
8. LIMITATIONS OF LIABILITY.
8.1. Disclaimer of Consequential Damages. SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TOWARDS THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY FOR ANY (A) ANY LOSS OF PROFITS OR CONTRACTS; (B) ANY LOSS OF REVENUE OR BUSINESS OPPORTUNITY; (C) ANY LOSS OF ANTICIPATED SAVINGS; (D) ANY LOSS OF GOODWILL; (E) ANY INTERRUPTION OF BUSINESS; (F) ANY LOSS OF DATA; OR (G) ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ITS TERMINATION, WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR STATUTORY LIABILITY, AND IN EACH CASE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN OR IN THE CONTEMPLATION OF THE PARTIES AT THE EFFECTIVE DATE.
8.2. Aggregate Liability. SUBJECT TO SECTION 8.3 AND EXCEPT FOR PARTNER’S LIABILITY ARISING UNDER OR IN CONNECTION WITH SECTIONS 4.5, 5.3 AND 9, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY, TOGETHER WITH ITS RESPECTIVE AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE OF TEN THOUSAND U.S. DOLLARS ($10,000).
8.3. Exclusions and Limits Prohibited by Law. Neither Party limits or excludes its liability in respect of: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability (including statutory liability) to the extent it is not lawfully permitted to limit or exclude it.
8.4. Invalidity. The Parties expressly agree that if any of the exclusions in Section 8.1 are found to be invalid, illegal or unenforceable by a court of competent jurisdiction, a Party’s aggregate liability shall (to the extent permitted by applicable law) be subject to the financial limit set out in Section 8.2.
9. CONFIDENTIALITY, PRIVACY & DATA PROTECTION.
9.1. Definition of Confidential Information. “Confidential Information” means all non-public information disclosed by either Party (herein, the “Disclosing Party”) to the other Party (herein, the “Receiving Party”), whether orally or in writing, that is designated as confidential or with a comparable legend if disclosed in written, graphic, machine readable or other tangible form, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential information shall include, without limitation, any (a) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, roadmaps, computer source and object code, patent applications, and other materials and concepts relating to Contentstack’s and Partner’s products, services, processes, technology or other IPRs including, without limitation, Contentstack IP and the Sandbox Account; (b) information, ideas or materials of a business nature, such as non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; and marketing and sales plans and forecasts; (c) all personal property, including, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints and other documents or materials, or copies thereof, received by Contentstack from Partner in the course of Contentstack’s rendering of Contentstack's Services to Partner or Partner customer, including, without limitation, records and any other materials pertaining to the Services; and (d) the terms and conditions of this Agreement. The Marks shall be considered Confidential Information. However, Confidential Information does 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.
9.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) including, without limitation, (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) 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 and contractors who need that 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. Neither Party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliates, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 9.2. “Affiliates” shall mean Contentstack or Partners applicable, and their subsidiaries, parents, and companies co-owned by parents as well as their employees, contractors, officers, directors, agents, attorneys and accountants.
9.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by applicable law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 applicable 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 that Confidential Information.
9.4. Injunctive Relief. The Parties agree that the Disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the Disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.
9.5. Definitions. For the purposes of Sections 9.6 to 9.13 (inclusive):
9.5.1. “Agreed Purposes” means, as applicable, in respect of Data Discloser’s (i) existing and potential customers, for the purposes set out in (as applicable) Section 2.1 or 2.2; and (ii) staff, to enable Data Receiver to perform its obligations and exercising its rights under, or in connection with, this Agreement;
9.5.2. “CCPA” means the California Consumer Privacy Act of 2018 and the California Consumer Privacy Act of 2020;
9.5.3. “Commissioner”, “Controller”, “Data Subjects”, “EEA”, “process(es)(ing)” and “Supervisory Authority(ies)” shall have the meanings given to them under Data Protection Laws;
9.5.4. “Data Discloser” means the Party disclosing Shared Personal Data to Data Receiver;
9.5.5. “Data Protection Laws” means, as applicable: (i) the EU GDPR; (ii) the UK GDPR; (iii) the CCPA; (iv) any other data protection and privacy laws which apply to the processing of Shared Personal Data by the Partiers, whether international, foreign, national, state, and/or local; (v) any amendments or successor legislation to (i) to (iv); and (vi) any guidance and codes of practice issued by relevant data protection, supervisory or other regulatory authority(ies) (including, without limitation, the Commissioner and Supervisory Authorities”;
9.5.6. “Data Receiver” means the Party receiving Shared Personal Data from Data Discloser;
9.5.7. “EU SCCs” means the European Commission’s standard contractual clauses for the transfer of Personal Data from the EU to third countries (Module 1), as set out in the annex to Commission Implementing Decision 2021/914 and which is incorporated herein by reference;
9.5.8. “Permitted Recipients” means the Parties to this Agreement, their Affiliates, the employees and contractors of each Party and its Affiliates, and any third parties engaged to perform obligations in connection with this Agreement;
9.5.9. “SCCs” means, as applicable, the executed EU SCCs and/or the executed UK SCCs;
9.5.10. “Shared Personal Data” means, as applicable, the following Personal Data disclosed by Data Discloser for the Agreed Purposes: name, job title and business contact details;
9.5.11. “UK GDPR” means: (i) the Data Protection Act 2018; and (ii) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act of 2018; and
9.5.12. “UK SCCs” means the Commissioner’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B1.0) (utilising only the EU SCCs) and which is incorporated herein by reference.
9.6. Shared Personal Data. Data Receiver acknowledges that Data Discloser may disclose Shared Personal Data with Data Receiver for the Agreed Purposes.
9.7. Independent Controllers. For the purposes of Data Protection Laws, each Party is an independent Controller of Shared Personal Data. Each Party shall:
9.7.1. comply with all obligations imposed on a Controller under Data Protection Laws; and
9.7.2. perform its obligations under Sections 9.7 to 9.13 (inclusive) and Data Protection Laws at its own cost.
9.8. Data Discloser Obligations. Data Discloser shall ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of Shared Personal Data to the Permitted Recipients for the Agreed Purposes.
9.9. Data Receiver Obligations. Data Receiver shall:
9.9.1. process Shared Personal Data only for the Agreed Purposes;
9.9.2. not sell, retain, use, or disclose the Shared Personal Data for any purpose other than for the Agreed Purpose, including retaining, using, or disclosing the Shared Personal Data for a commercial purpose other than as intended under this Agreement or outside the direct business relationship between the Parties to this Agreement;
9.9.3. not disclose, or allow access, to Shared Personal Data with anyone other than the Permitted Recipients;
9.9.4. ensure that all Permitted Recipients are subject to written contractual obligations concerning Shared Personal Data (including, without limitation, obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
9.9.5. ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Shared Personal Data and against accidental loss or destruction of, or damage to, Shared Personal Data; and
9.9.6. not transfer Shared Personal Data received from Data Discloser outside the UK, EEA or Switzerland unless Data Receiver ensures that: (i) the transfer is to a country approved under Data Protection Laws as providing adequate protection; (ii) there are appropriate safeguards or binding corporate rules in place pursuant to Data Protection Laws; (iii) Data Receiver otherwise complies with its obligations under Data Protection Laws by providing an adequate level of protection to any Shared Personal Data that is transferred; or (iv) one of the derogations for specific situations in Data Protection Laws applies to Data Receiver.
9.10. Mutual assistance. Data Receiver shall assist Data Discloser in complying with all applicable requirements of Data Protection Laws. In particular, Data Receiver shall:
9.10.1. promptly inform Data Discloser about the receipt of any Data Subject rights request and provide Data Discloser with reasonable assistance in complying with any Data Subject rights request;
9.10.2. not disclose, release, amend, delete or block any Shared Personal Data in response to a Data Subject rights request without first consulting Data Discloser wherever possible; and
9.10.3. assist Data Discloser in responding to any request from a Data Subject and in ensuring compliance with its obligations under Data Protection Laws with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Commissioner or Supervisory Authority.
9.11. International Transfers. If Data Receiver is based in a third country for which there is no valid adequacy decision pursuant to (as applicable) the UK GDPR and/or the EU GDPR, the Parties shall comply with the SCCs including the following:
9.11.1. SCCs Clause 7: This optional clause shall apply.
9.11.2. SCCs Clause 11(a) (Redress): The optional paragraph shall not apply.
9.11.3. EU SCCs Clause 13(a) (Supervision): The version of clause 13(a) that applies to Data Discloser shall be included.
9.11.4. EU SCCs Clause 17 (Governing law): The governing law shall be that of the Netherlands.
9.11.5. EU SCCs Clause 18(b) (Choice of forum and jurisdiction): The applicable forum shall be the Netherlands.
9.11.6. UK SCCs Clause 18(b) (Choice of forum and jurisdiction): The applicable forum shall be England.
9.11.7. UK SCCs Table 4: Neither Party.
9.11.8. SCCs Annex I: The data exporter shall be Data Discloser. The data importer shall be Data Receiver. The categories of Data Subjects shall be Data Discloser’s existing and potential customers, and staff. The categories of Personal Data shall be Shared Personal Data. There shall be no sensitive data transferred. The frequency of the transfer shall be on a continuous basis through the duration of this Agreement. The nature and purposes of processing shall be for the Agreed Purpose. Shared Personal Data shall be retained for the duration of this Agreement together with any additional time period(s) applicable to comply with obligations in this Agreement which survive termination or expiry of this Agreement. The Supervisory Authority under the EU SCCs shall be determined pursuant to Section 9.11.3 of this Agreement.
9.11.9. SCCs Annex II: The details for this annex are set out in Exhibit 1 of this Agreement.
9.12. Conflicts and Copy SCCs. Notwithstanding anything to the contrary in this Agreement, in the case of conflict or ambiguity between any provisions in this Agreement and any provisions in the SCCs, the SCCs shall prevail (but only to the extent of such conflict). As required under the SCCs, if Data Discloser receives a request from a Data Subject for a copy of the SCCs, Data Receiver hereby agrees that Data Discloser shall:
9.12.1. make any necessary redactions to 9.11 and the SCCs to protect business secrets or other Confidential Information (to the extent the SCCs permit such redaction); and
9.12.2. provide any required accompanying meaningful summary and reasons for any redactions to the Data Subject. If Data Receiver any such request, it shall promptly notify Data Discloser Data Discloser shall deal with the request accordingly.
9.13. Notices. If a Party is required under Sections 9.9 to 9.12 (inclusive) or the SCCs to provide notice, communication or certification to the other Party, or keep the other Party informed, such notice, communication, certification or informing shall be provided to the following:
9.13.1. Contentstack –(firstname.lastname@example.org)
10. TERM AND TERMINATION.
10.1. The Agreement shall become effective when signed by both Parties and shall remain in effect for a period of twelve (12) months thereafter, unless earlier terminated as set forth in this Agreement. Either Party may terminate the Agreement with thirty (30) days’ prior written notice for any or no reason without liability to the other. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches any provision of this Agreement and does not cure such breach within ten (10) days from its receipt of a written notice of the breach. The Agreement shall auto-renew for successive twelve (12) month terms until either Party terminates the Agreement.
10.2. Either Party may terminate this Agreement immediately upon:
10.2.1. the other Party (a) suspending, or threatening to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986; (b) applying to court for, or obtains, a moratorium under Part A1 of the IA 1986; (c) having an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, or an application for such is made to court or a notice of intention to appoint is given for such; (d) commencing negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction); (e) having a petition filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that party (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction); or (f) undergoing any similar or equivalent process in any jurisdiction; or
10.2.2. the filing of criminal charges or civil fines against the other Party for any violation of any law, rule, regulation or ordinance applicable to the selling of or use of Contentstack’s Services; or
10.2.3. in the discretion of Contentstack in the event of repeated violation of Section 6.2 of this Agreement.
10.3. Any and all other provisions of this Agreement that by their nature or context are such that they are intended to survive termination or expiry shall survive termination or expiry (including, but not limited to, Sections 5.3,8 and 9).
10.4. Upon termination or expiration of this Agreement for any reason whatsoever:
10.4.1. Partner shall (i) immediately discontinue use of all Marks and other sales and marketing materials relating to Contentstack or Contentstack’s Services; (ii) immediately discontinue all representations or statements from which it might be inferred that any relationship exists between Partner and Contentstack; (iii) cease to promote, solicit orders for or procure orders for Contentstack’s Services (but will not act in any way to damage the reputation of Contentstack or any Contentstack’s Services); and (iv) shall immediately return to Contentstack all catalogues, literature and Confidential Information of Contentstack then in possession of Partner; and
10.4.2. any rights and licenses granted to Partner and all obligations of Contentstack hereunder shall automatically terminate.
11. RELATIONSHIP MANAGER.
Each Party will assign a relationship manager who will be the focal point for interactions between the Parties pursuant to this Agreement. Contentstack’s initial relationship manager contact is identified below and Partner’s initial relationship manager shall be the contact set forth below the signatures of this Agreement. A Party may change its relationship manager by giving written notice to the other Party.
Contentstack Relationship Manager Contact: email@example.com
Whenever under this Agreement one Party is required or permitted to give notice to the other, such notice shall be deemed given when delivered electronically, in hand, one day after being sent by overnight delivery service, or three (3) business days after being sent by mail/post, registered or certified mail/post, return receipt requested, postage prepaid, and addressed to the receiving Party at the address set forth at the beginning of this Agreement, or as otherwise notified by the Parties.
Contentstack Address for Notice:
315 Montgomery St., Suite 909
San Francisco, CA 94104
For legal: firstname.lastname@example.org
For invoices: email@example.com
13. GENERAL TERMS AND CONDITIONS.
13.1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and overrides any prior contemporaneous, oral or written, arrangements, representations, understandings or agreements relating to the subject matter hereof. Each Party acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that its only liability in respect of those warranties that are set out Agreement (whether made innocently or negligently) shall be for breach of contract. Nothing in this Section 13.1 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
13.2. Amendments. This Agreement may only be amended by a writing signed by a duly authorized representative of each Party.
13.3. Governing Law; Venue. This Agreement and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of England without reference to its conflicts of law provisions. Neither the Uniform Computer Information Transactions Act nor the UN Convention on Contracts for the International Sale of Goods will apply to this Agreement. Both parties hereby irrevocably consent to the personal and exclusive jurisdiction of the courts of England to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or their subject matter or formation. Nothing in this Agreement shall prevent, restrict or hinder Contentstack from taking proceedings to protect its Marks or other proprietary rights in any jurisdiction. The substantially prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and expenses incurred.
13.4. No waiver. No delay or omission by either Party in exercising any right or power shall impair such right or power or be construed to be a waiver. A waiver by either Party of any breach of this Agreement shall not be construed to be a waiver of any succeeding breach of the same or any other provision..
13.5. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both Parties shall be relieved of all obligations arising under such provision, but if the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then each provision not so affected shall be enforced to the extent permitted by law.
13.6. Rights and remedies. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
13.7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same Agreement. All signed electronic or fax copies of the Agreement shall be deemed as valid as originals.
13.8. Third Party Rights. Unless expressly stated otherwise, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce or enjoy the benefit of any term of this Agreement. The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
14.1. Neither Party may, nor shall have the power to, assign or transfer this Agreement or any rights or obligations hereunder, without the prior written consent of the other Party; provided that, either may assign its rights and obligations hereunder, in whole or in part, to any Affiliate without the other Party’s prior written consent. For purposes of this Section 14.1. Any attempt to assign or transfer this Agreement in violation of this subsection shall be void and of no force and effect. Notwithstanding the foregoing, a Party may assign its interest herein, upon written notice to the other Party, to an Affiliate or to an entity that acquires all or substantially all of such notifying Party’s stock, assets or business or the successor party by way of a reorganization, merger or sale of substantially all the assets of that Party; provided, however, if such Affiliate or entity is a competitor of the notified Party, such Party may terminate this Agreement upon the earlier of sixty (60) days written notice or the effective date of such purported assignment.
14.2. This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto and their permitted successors and assigns, and nothing in this Agreement shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, save as expressly provided in Section 14.1.
Partner Technical and Organizational Measures: Partner and Contentstack shall each provide technical and organizational measures to secure Shared Personal Data. Such measures shall include as applicable:
- Measures of encryption of personal data
- Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
- Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident
- Processes for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures in order to ensure the security of the processing
- Measures for user identification and authorisation
- Measures for the protection of personal data during transmission
- Measures for the protection of personal data during storage
- Measures for ensuring physical security of locations at which personal data are processed
- Measures for ensuring events logging
- Measures for ensuring system configuration, including default configuration
- Measures for internal IT and IT security governance and management
- Measures for certification/assurance of processes and products
- Measures for ensuring data minimisation
- Measures for ensuring data quality
- Measures for ensuring limited data retention
- Measures for ensuring accountability
- Measures for allowing data portability and ensuring erasure
- Vetting Sub-Processors for similar appropriate technical and organizational measures as appropriate.