Untangle Partner Program Terms and Conditions
READ THIS AGREEMENT IN ITS ENTIRETY!
BY ACCEPTING THE TERMS AND CONDITIONS OF THE UNTANGLE PARTNER AGREEMENT (“Agreement”), YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, AND REPRESENT THAT YOU ARE LEGALLY ENTITLED TO ACT ON BEHALF OF THE COMPANY LISTED IN THIS UNTANGLE PARTNER APPLICATION.
Untangle Partner Program Agreement
This Agreement is made between the entity listed as Company in the accompanying Untangle Partner Application (“Partner”), and Untangle, Inc., a Delaware corporation with its principal place of business at: 25 Metro Drive, Suite 210, San Jose, CA, USA (“Untangle”). The Effective Date of this Agreement shall commence upon Partner’s acceptance of this Agreement, and subsequent registration process including the purchase of their Not for Resale package.
The parties do hereby agree as follows:
1. DEFINITIONS
1.1. “Product” means the Untangle computer software and hardware products and services;
1.2. “End-User” means the end-user customers, clients and/or prospects of the Partner;
2. License Rights
2.1. Partner License. Subject to the terms and conditions of this Agreement, Untangle grants to Partner the non-exclusive, non-transferable license to market and sell Products to End-Users. Partner shall not distribute, resell, promote, or market the Products to End-Users where such action would be a violation of United States export controls or embargoed nation regulations.
2.2. Trademarks and Trade Names. Untangle, NG Firewall, SD-WAN Router, and Command Center are trademarks of Untangle. Partner may use, for the term of this Agreement only, Untangle and other trade names and trademarks specified by Untangle in writing for the sole purpose of normal advertising and promotion of products. Partner will not alter, obscure, or modify any such trade names or trademarks originally placed on the Products by Untangle, and shall maintain a high quality standard in marketing Products in connection with such trade names or trademarks. If, in Untangle’s reasonable judgment, Partner’s use of the trade names or trademarks does not meet Untangle’s then-current trademark usage guidelines, or otherwise dilutes or tarnishes the quality associated with the trade names or trademarks, Untangle may terminate the license granted herein. Untangle will hold no responsibility for funding or subsidizing Partner marketing collateral or promotional materials, unless specifically agreed upon by both parties in writing.
3. Partner Obligations
3.1. During the term of this agreement, Partner’s obligations shall include:
3.1.1. Promotion and distribution of the Untangle Products, including informing End-Users about the Products, and providing support and consulting to its End-Users in the use of the Products.
3.1.2. Partner agrees to maintain a Demo Bundle Not For Resale (NFR) Annual Subscription for the duration of their partnership with Untangle. Failure to do so will result in termination from the program and removal of margin within the Partner account.
3.1.3. Providing First-Line Support to the Partner’s End-Users for the Products if acting as MSP within the partnership. If acting as VAR, End User’s are eligible for Untangle Live Support with purchase of Complete packaging or Live Support contract.
3.1.4. Compliance with Untangle standard usage guidelines for all Untangle logos and trademarks.
3.1.5. Partner agrees to notify Untangle in writing of any legal claim proceeding involving an Untangle Product that comes to its attention.
3.1.6. Partner agrees to maintain a customer facing website with Untangle representation.
3.1.7. Partner agrees to complete Untangle University Sales and Technical Training courses.
3.1.8. Partner agrees to Opt-in to Partner communications (product and sales information, newsletters, promotions and enablement).
3.1.9. Partner agrees to maintain an Annual Sales Requirement threshold to remain in the Partner Program Partner Levels (VAR, MSP, MSP Authorized, MSP Silver, MSP Gold, MSP Platinum).
3.1.10. In the event of Partner installing NG Firewall with no paid applications, Partner will represent to the End-User that they are utilizing a Free product with no paid subscriptions. Every effort will be made by Partner to convert End-User to the more secure paid applications.
4. Untangle Obligations
4.1. During the term of this agreement, Untangle’s obligations shall include:
4.1.1. Partner Portal access. Content within the portal shall include sales literature, case studies, white papers, product pricing, marketing campaign materials, release notes and other sales and technical resources.
4.1.2. Sales leads may be provided to Partner from time to time as generated through web hits, telesales and other marketing activities.
5. Prices, Billing, Payment, and Taxes
5.1. Purchase Price. Partner’s Purchase Price for any Untangle Product purchased hereunder shall be the List Price for such Untangle Product as of the date Untangle accepts the order, less the applicable Partner Discount. Untangle reserves the right to change prices at any time, but will provide Partner with a minimum of thirty (30) days written notice before any such changes shall take effect.
Partner’s Purchase Price does not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied against the sale, licensing, delivery or use of the Untangle Products. Reseller shall pay, or reimburse Untangle for, all such taxes imposed on Reseller or Untangle, provided, however, that Reseller shall not be liable for any taxes based on Untangle’s net income. When Untangle has the legal obligation to collect such taxes, the appropriate amount shall be added to Reseller’s invoice and paid by Reseller unless Reseller provides Untangle with a valid tax exemption certificate authorized by the appropriate taxing authority. Reseller shall promptly notify Untangle of any amendment or revocation of such certificate and will hold Untangle harmless from and against any taxes or other monies resulting from the failure to hold a certificate recognized as valid by the appropriate tax jurisdiction.
5.1.1 Demo Bundle Not For Resale (NFR) Annual Subscription. TThis subscription is for internal use only by the named partner purchasing the subscription. It is intended solely as a demonstration subscription to be used by the partner for the express purpose of demonstrating the features and functionality of the Untangle product. It is a non-transferable license that may not be sold, bartered or given away. It may not be installed at a client site, sold to a client nor given to a client for any term. Untangle reserves the right to terminate the Demo Bundle Not for Resale subscription at any time if the subscription is used in a manner inconsistent with the spirit of the license without compensation to the partner for any loss of use.
5.2. Partner Discount. Partner Discount will be established at the entry level tier. On a quarterly basis, each Partner’s total software sales will be reviewed and the Partner will be moved to the appropriate level at that time.
5.3. Billing and Collections. Partner shall be responsible for all billing to and collection from its End-Users. This includes Products as well as any applicable sales taxes.
5.4. Payment and Payment Terms. Where Partner has been approved for credit terms by Untangle, Partner agrees to submit payment to Untangle for outstanding invoices on a net thirty (30) day basis.
5.5. Currency and Payment Method. Partner agrees to pay all invoices via credit card, wire transfer or check drawn in US Dollars on a US bank account.
5.6. Failure to Pay. Untangle reserves the right to impose a monthly late payment charge equivalent to one and one-half percent (1.5%), or the highest rate allowed by law, on all payments provided for in this Agreement which are not paid within sixty (60) days of the due date. The imposition of late payment charges is not intended to be Untangle’s sole remedy and in no way precludes Untangle’s use of additional remedies. In the event of unpaid subscriptions, Untangle reserves the right to revoke the license attached to the unpaid subscription.
6. Ownership and Proprietary Rights
6.1. Ownership. Untangle represents that it has all rights to copyrights, patents, trade secrets, and trademarks associated with the Products as are necessary to market and license the Products under this Agreement.
6.2. Proprietary Rights. Partner shall not use or disclose the Products, documentation, or confidential information, except as expressly permitted by this Agreement. Partner shall not remove Untangle’s copyright notices, trademarks, restricted rights legends or any other notices from the Products and documentation. Partner shall not attempt to reverse compile or reverse engineer the Products.
7. Unauthorized Use or Copying
Except as expressly permitted under this Agreement, Partner shall not copy, modify, or reproduce the Products or documentation in any way, nor shall it permit third parties to do so. Partner shall fully cooperate with Untangle in any action relating to enforcement of Untangle’s proprietary rights and EULA.
8. No Representations or Warranties
Partner shall make no representations or warranties on behalf of Untangle. Partner shall make no representations to its customers or other third parties regarding the Products except as set forth in the applicable documentation and approved marketing materials as stated by Untangle.
9. Term
This Agreement shall commence on the Effective Date set forth above and shall continue for an initial term of one year unless terminated earlier pursuant to a provision herein. Thereafter, Untangle may extend this agreement, with the renewal of the NFR license, after review of Partner’s performance hereunder. Either party may terminate the Agreement any time upon thirty (30) days prior written notice to the other.
10. Limitation of Liability
UNTANGLE’S LIABILITY ARISING OUT OF THIS AGREEMENT, SALE OF THE UNTANGLE PRODUCTS, OR PROVISION OF SUPPORT SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY THE PARTNER FOR THE UNTANGLE PRODUCTS OR SUPPORT SERVICES. IN NO EVENT SHALL UNTANGLE BE LIABLE TO PARTNER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT UNTANGLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. General
11.1. Independent Contractors. It is expressly agreed that Untangle and Partner are acting hereunder as independent contractors; employees of one party shall not be deemed the employees of the other for any purpose.
11.2. Assignment. This Agreement is not assignable by Partner without the prior written consent of Untangle. This Agreement is assignable without consent of Partner by Untangle to any successor, affiliate, subsidiary, or parent company of Untangle.
11.3. Other Distribution. Nothing in this Agreement shall be deemed to preclude Untangle from selling, marketing, distributing, or licensing the Products, domestically or worldwide, as it deems appropriate, or from appointing or contracting with others to do so.
11.4. Export Compliance. The rights and obligations of Partner shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of product and technology abroad by persons subject to the jurisdiction of the United States. Partner (or any agent) agrees that Untangle shall not appear as an exporter on any document used for export control purposes. Partner shall certify that it shall not, directly or indirectly, export, re-export or transship the Untangle Products or any parts or copies thereof in such manner as to violate such laws and regulations in effect from time to time. Partner shall indemnify and hold harmless Untangle from and against any and all losses, claims and expenses incurred by Untangle as a result of the breach of Partner’s obligations under this Section.
11.5. Governing Law. This Agreement shall be governed and construed under the laws of the State of California, USA, without reference to conflicts of law principles.
11.6. Entire Agreement. This document constitutes the entire agreement of Untangle and Partner with regard to the subject matter hereof and supersedes all prior and contemporaneous negotiations, statements and agreements, whether written or oral. No prior or contemporaneous representation or warranty related to the subject matter hereof shall be deemed effective or part of this Agreement, except when made in writing and signed by a duly authorized representative of the respective party. Any preprinted terms and conditions, including modifications thereto, that appear on any other document, including, without limitation, any purchase orders or similar documents now or hereafter created, shall be deemed without effect and shall be superseded in their entirety by the terms and conditions of this Agreement.
