Partner Program Terms & Conditions - International Version
1. SCOPE. This Agreement is by and between Instructure Global Limited and its Affiliates (“Instructure”), and the entity or individual agreeing to these terms and conditions (“Partner”). By signing this Agreement, Partner agrees to participate in the Instructure partner program. Additional information on the partner program is located at https://partners.instructure.com (“Program Website”). Instructure may change its partner program from time to time. Instructure and the Partner may be referred to herein each as a “Party” and collectively, as the “Parties.” “Affiliate” with respect to Instructure means any entity that directly, or indirectly through one or more intermediaries controls, is controlled by or is under common control with such Party.
2. TERM AND TERMINATION. This initial term of this Agreement is stated on the Order Form (the “Term”). Thereafter, this Agreement shall automatically renew annually for a twelve (12) month term (each a “Renewal Term”) unless either party gives thirty (30) days written notice to the other party of its intent not to renew. At any time and for any reason, either party may terminate this Agreement upon providing the other party thirty (30) days written notice. Either party may terminate this Agreement for the material breach of any provision of this Agreement by the other party if such material breach remains uncured for fifteen (15) days after receipt of written notice of such breach from the non-breaching party. Such termination right shall be in addition to any other rights and remedies that may be available to the non-breaching party.
3. PAYMENT. There is no charge for participation in the Partner Program. If Partner would like to upgrade its membership however, Partner shall pay Instructure the amounts specified in the applicable Order Form within thirty (30) days of the invoice date (the “Upgrade Fee”). All amounts shall be stated (and payment made) in the applicable currency identified in the Order Form. For each Renewal Term, Partner shall pay Instructure the applicable Upgrade Fee, unless Partner notifies Instructure in writing thirty (30) days prior to renewal of its intent to cancel the upgraded item. The Upgrade Fee and any other fees owed by Partner are exclusive of, and Partner shall pay, all sales, use, VAT, excise and other taxes that may be levied in connection with this Agreement. All fees are non-refundable.
4. TRADEMARK USAGE RIGHTS. Each party agrees to allow the other party to use its name, logo and non-competitive use details in both text and pictures in its various marketing communications and materials, in accordance with each party’s trademark guidelines and policies and solely in connection with this Agreement. Instructure’s brand guidelines can be found at https://www.instructure.com/downloads/Instructure-Brand-Guidelines.pdf, which may be updated from time to time. Neither party may register any internet domain name using any tradename or trademark of the other party. The licenses granted in this Agreement set forth the full extent of each party’s rights to use, distribute, display, use, make available, and otherwise deal in the services, trademarks and Intellectual Property of the other party. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement will be deemed to license or transfer to anyone any of either party’s Intellectual Property or proprietary rights.
5. OWNERSHIP. As between Partner and Instructure, the Instructure Intellectual Property is, and shall at all times remain, the sole and exclusive property of Instructure. Partner shall have no right to use, copy, distribute or create derivative works of the Instructure Intellectual Property except as expressly provided herein. Instructure shall have the right, in its sole discretion, to modify the Instructure Intellectual Property. “Instructure Intellectual Property” means the Instructure products and Services under this Agreement, and all improvements, changes, enhancements and components thereof, and all other proprietary materials of Instructure and/or its licensors that are delivered, provided or used by Instructure in the course of performing its obligations under this Agreement, as well as all other intellectual property owned by Instructure and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how, as well as any underlying source code and object code related thereto. Notwithstanding the foregoing, the Partner Applications and all intellectual property rights therein shall remain the sole and exclusive property of Partner. “Service(s)” means the proprietary software as a service offering(s) provided by Instructure and made available through a URL in a hosted environment, together with any other related products and services to be provided by Instructure. “Partner Applications” means the applications, integrations and related content created by Partner that interface with Instructure products and Services.
6. MUTUAL CONFIDENTIALITY. Each party acknowledges that the other party may disclose its Confidential Information to the other in the performance of this Agreement. Accordingly, each party shall (a) keep the Confidential Information disclosed by the other party confidential, (b) use Confidential Information only for purposes of fulfilling its obligations and exercising its rights hereunder, and (c) disclose such Confidential Information only to the receiving party’s employees or affiliates who have a need to know and only for the purposes of fulfilling this Agreement. As used herein, “Confidential Information” means information in the possession or under the control of a party of a proprietary nature relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form. Confidential Information shall not include information that: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; (iii) is independently developed by the Receiving Party without use of or access to any Confidential Information of the Disclosing Party; or (iv) is identified by the Disclosing Party in writing as no longer confidential and proprietary. Further, any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the sandbox as well as to disclosures required by or under applicable law or related government agency actions. Instructure will also comply with all court orders or subpoenas involving requests for such information.
7. CONDUCT OF BUSINESS AND NON-SOLICIT. Each party must conduct its business in a manner favorably representing the other party and its technology. In no event may either party make any representations, warranties, or guarantees on behalf of the other party. Partner agrees to maintain the quality of the Partner Applications such that they remain current, in good taste, and compliant with all applicable laws, rules and regulations. Partner is solely responsible for providing all support and assistance to end users of the Partner Applications. During the term of this Agreement and for three (3) months after expiration or termination, neither party will or will attempt to recruit or solicit any employee or contractor of the other Party or any Affiliates. The posting of any general recruitment advertisement in the normal course of business shall not be deemed a violation of this Section.
8. DATA PRIVACY. You agree to comply with all laws, rules, regulations, governmental requirements and codes as well as international, federal, state, or provincial laws applicable to personal data.
9. LIMITATION OF LIABILITY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (C) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW. SUBJECT TO THE PRECEDING SENTENCE, NEITHER PARTY HAS ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE), EVEN IF EITHER PARTY IS AWARE OF THE LIKELIHOOD OF SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY’S TOTAL AND CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING UNDER OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF £50 OR THE AMOUNT PAID BY PARTNER UNDER THIS AGREEMENT WITHIN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY, WHICHEVER IS GREATER.
10. WARRANTY DISCLAIMER. SUBJECT TO THE FIRST SENTENCE OF SECTION 9 AND EXCEPT AS EXPRESSLEY PROVIDED IN THIS SECTION, INSTRUCTURE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. INSTRUCTURE DOES NOT WARRANT THAT INSTRUCTURE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.
11. INDEMNIFICATION. Instructure will indemnify and defend Partner from and against any and all losses, liabilities, and claims (including reasonable legal fees) arising out of any claim by a third party alleging that the Instructure Services infringe or misappropriate the intellectual property rights of that third party. Notwithstanding the foregoing, Instructure shall not be obligated to indemnify Partner if such infringement or misappropriation claim arises from: (a) the Partner’s content or Partner Application; (b) Partner's misuse of the Services; or (c) Partner's use of the Services in combination with any products, services, or technology provided by a party other than Instructure. If such a claim of infringement or misappropriation is made or threatened, Instructure may, in its sole discretion: (i) modify the Services so that they become non-infringing; (ii) obtain a license for Partner to continue its use of the Services; or (iii) notwithstanding Instructure's obligation to indemnify hereunder, terminate the Agreement with no liability to Partner. Partner will indemnify and defend Instructure from and against any and all losses, liabilities, and claims (including reasonable legal fees) arising from: (a) the Partner’s acts or omissions, or (b) out of any claim by a third party regarding the Partner Application or use of the Services by Partner (or any of its customers or users) in violation of this Agreement. The party seeking indemnification (the “Indemnified Party”) shall provide the other party (the “Indemnifying Party”) with prompt written notice upon becoming aware of any claim subject to indemnification hereunder and shall provide reasonable cooperation to the Indemnifying Party in the defense of or investigation of any claim, suit or proceeding. The Indemnifying Party, at its option, will have sole control of such defense, provided that the Indemnified Party is entitled to participate in its own defense at its sole expense. The Indemnifying Party shall not enter into any settlement or compromise of any such claim, suit or proceeding without the Indemnified Party's prior written consent, except that the Indemnifying Party may without such consent enter into any settlement of a claim that resolves the claim without liability to the Indemnified Party and without impairment to any of the Indemnified Party's rights or requiring the Indemnified Party to make any admission of liability.
12. GENERAL. Any notice by a party under this Agreement shall be in writing and either personally delivered or sent via email with acknowledgement of receipt or reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified below or such other address of which either party may from time to time notify the other in accordance with this Section 12. A copy of all notices to Instructure shall be sent to: Instructure, Inc., 6330 South 3000 East, Suite 700, Salt Lake City, UT 84121, Attention: General Counsel and, if by email, to [email protected] For purposes of service messages and notices about the Service, Instructure may place a banner notice or send an email to an email address associated with an account. All notices shall be in English and shall be deemed effective upon receipt. If Instructure is unable to perform its obligations under this Agreement due to circumstances beyond its reasonable control, including, but not limited to, acts of God, earthquakes, hacker attacks, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures, such obligations will be suspended so long as those circumstances persist. This Agreement shall be interpreted, governed and construed by the laws of England and Wales without regard to the actual state or country of incorporation or residence of Partner. Instructure is acting in performance of this Agreement as an independent contractor to Partner. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Amendments to this Agreement must be made in writing and signed by both parties unless otherwise specified in the Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and any prior representations, statements, and agreements relating thereto are superseded by the terms of this Agreement. Instructure rejects additional or conflicting terms of any Partner form-purchasing document. Partner shall not assign this Agreement, in whole or in part, to any entity without Instructure’s prior written consent. Any attempt to assign this Agreement, in whole or part, in contravention of this Section 12, shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. Any terms that by their nature survive termination or expiration of this Agreement, will survive (including Sections 3, 4, 5, 6, 7, 9, 10, 11, 12, and 13).
13. Anti-corruption and Bribery. Partner acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act and the UK Bribery Act ("the Acts") and agrees to comply with their terms as well as any provisions of local law. Partner further understands the provisions relating to the Acts’ prohibitions regarding the payment or giving of anything of value, either directly or indirectly, to any party, any official of a government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business. Partner agrees to not violate or knowingly let anyone violate the Acts with respect to the sale, licensing, and use of the services. Upon Instructure’s request, Partner agrees to provide Instructure with written certifications of Partner’s compliance with the Acts. Partner shall indemnify and defend Instructure and hold Instructure harmless from and against any and all claims, losses, liabilities, suits, actions, demands, damages, costs and other expenses caused by Partner’s failure to comply with the Acts or any such similar laws, regulations or rules.
14. Sandbox Accounts. To the extent Partner purchases access to a sandbox account, the following provisions shall apply:
- 14. 1. Partner Restrictions. Partner shall not (and shall not permit Users to): (a) sell, rent, lease, lend, resell, sublicense, distribute, assign, timeshare or otherwise transfer or provide access to the Service to any third party, except as expressly authorized under this Agreement, (b) access the Service for competitive purposes; (c) copy, modify, adapt, or create derivative works from or any feature, function, interface or graphic, in the Service; (d) remove Instructure’s policies or proprietary markings displayed within the Service; or (e) use the Service or any of Instructure’s data, systems, network, or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including, without limitation, accessing or using Instructure data, systems, or networks in an unauthorized manner, attempting to probe, scan, or test the vulnerability of a Instructure system or network, circumventing any Instructure security or authentication measures, monitoring Instructure data or traffic, interfering with any Instructure services, collecting or using from the Service email addresses, screen names, or other identifiers, collecting or using from the Service information without the consent of the owner or licensor, using any false, misleading, or deceptive information, using the Service to distribute software or tools that gather information, distribute advertisements, or engage in conduct that may result in retaliation against Instructure or its data, systems, or network. Use and access to the Application Program Interface (“API”) will be subject to the Instructure API Policy available at https://www.instructure.com/policies/api-policy.
- 14.2. Partner Responsibilities. Partner shall have sole responsibility for Partner Content. Use of the Service shall be in compliance with this Agreement and the Acceptable Use Policy provided by Instructure (within the Service) and available at https://www.instructure.com/policies/acceptable-use (the “AUP”), and Partner agrees to enforce such terms and conditions against its Users. Partner further agrees to: (a) maintain the confidentiality and security of passwords; (b) obtain from Users any consents necessary under this Agreement or to allow Instructure to provide the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service; (d) notify Instructure promptly of any such unauthorized access or use of which it learns; and (e) cooperate reasonably in all respects with respect to implementation and maintenance of the Service.