Gradient MSP Inc (“Gradient”) provides a software-as-a-service managed service
provider “MSP”) management platform to MSP providers (the “Gradient MSP Service”).
The Gradient MSP Service is provided on a subscription basis to MSPs. This Agreement
applies to anyone (“You”/”Integration Partner”) who wishes to integrate your technology
products and services with the Gradient MSP Services (“Integration Partner Services”)
to enable the transmission of certain data to MSPs to facilitate the Gradient MSP
Services.
THESE TERMS (WHICH TOGETHER WITH THE GRADIENT PRIVACY POLICY
AVAILABLE AT HTTPS://WWW.MEETGRADIENT.COM/PRIVACY-POLICY ARE
COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAIN IMPORTANT
LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES
AND LIABILITIES THAT ARE APPLICABLE TO THE INTEGRATION PARTNER
SERVICES SO YOU SHOULD READ THEM CAREFULLY BEFORE USING THE
SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE THAT
REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU
ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT
THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO
ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH
ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE,
TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS
HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE
WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
1. Definitions
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere
in this Agreement, the following terms shall have the meanings ascribed to them as
follows:
“Affiliate” means any corporation or company that directly or indirectly controls, or is
controlled by, or is under common control with the relevant party, where “control” means
to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the
relevant party through any lawful means (e.g., a contract that allows control).
“Applicable Laws” means all laws, rules, and regulations applicable to the Gradient MSP
Services, including but not limited to those relating to privacy, data protection, and data
security.
“Authorized User” means an individual employee or agent of Integration Partner who is
authorized by Integration Partner to use the Gradient Integration Partner Services under
Integration Partner’s account, and who has been supplied a user identification and
password.
“Confidential Information” means all confidential information and proprietary
information of a party (the “Disclosing Party”) disclosed to the other party (the
“Receiving Party”), whether orally or in writing, that is designated as confidential or that
reasonably should be understood to be confidential given the nature of the information
and/or the circumstances of disclosure, including non-public technical information about
the Services or the Integration Partner Offerings, business and marketing plans,
technology and technical information, product designs, and business processes,
including third-party information of the foregoing types that is disclosed by a Disclosing
Party to the Receiving Party.
“Documentation” means the written or electronic user manuals, reference materials
and/or application programming interface information that Gradient makes available in
connection with the Gradient Integration Partner Services.
“Gradient Data” means Aggregated Data (as defined in Section 3.6) and any data made
available by Gradient to Integration Partner pursuant to or in connection with this
Agreement.
“Gradient Software” means those application programming interfaces for the Gradient
Platform and any JavaScript snippets, APIs, SDKs or other technologies that Gradient
makes available to Integration Partner in connection with the Gradient Services.
“Gradient Platform” means the web platform owned and operated by Gradient and
through which the Gradient Services are provided.
“Gradient Integration Partner Services” comprise a suite of SaaS based tools that
enable Integration Partners to integrate with and push data into the Gradient Platform to
enable MSP use of the Gradient MSP Services. Gradient Integration Partner Services
include requested developer support as further set out in section 4 hereto.
“Gradient Services” means collectively the Gradient MSP Services and the Gradient
Integration Partner Services.
“Integration Partner Data” means data that Integration Partner provides to Gradient, or
which is sent, submitted, or uploaded by Integration Partner to the Gradient Platform
under this Agreement, including by way of example, Integration Partner product names
and packaging details, SKUs and part numbers, but excluding MSP Data.
“Integration Partner Properties” means Integration Partner’s digital applications or
properties (e.g., webpages, apps, endpoints, and APIs) that Integration Partner integrates with the Gradient Platform to enable the integration between Integration Partner Offerings
and the Gradient Platform.
“MSP Data” means raw data obtained by Gradient from Integration Partner Offering(s)
through an API Integration of Integration Partner Offerings that Integration Partner has
authority to share with Gradient and for which Gradient has received permission to
receive directly from an MSP.
“Order Confirmation” means an order for the Integration Partner Services placed by
you through the Website that specifies the Integration Partner Services, the Initial Term,
any renewal term, applicable fees and other commercial terms applicable while is
incorporated into this agreement.
“Term” has the meaning ascribed to that term in Section 11.1.
“Website” means Gradient’s website at usegradient.com
2. Service Terms.
2.1. Provision of Gradient Services. Gradient will make the Gradient Integration
Partner Services available to Integration Partner in accordance with the terms
of this Agreement.
2.2. Deployment of Gradient Software. Subject to Section 2.3 below, Gradient will
provide Integration Partner the Gradient Software, including any updates
thereto, on a limited and revocable, non-exclusive, non-transferable, royalty-free
licensed basis to enable Integration Partner to develop the applicable API
Integration so that Integration Partner Offering(s) can send the Gradient MSP
Services the MSP Data for customers that elect to use such integration, and to
access and receive any other agreed Gradient Integration Partner Services in
connection with the applicable API Integration. Through the API Integration,
Integration Partner will submit Integration Partner Data (e.g., SKU or part
number) and MSP Data. For the avoidance of doubt, the license rights set forth
herein include the right of Integration Partner to develop, test, support, maintain,
deliver, provide access to, and demo the integration between the Gradient MSP
Services and the Integration Partner Offerings.
2.3. License Restrictions. The license grant in Section 2.2 is subject to Integration
Partner’s use of theGradient Software solely for the purpose of integration in
order to facilitate the Gradient MSP Services (the “Purpose”) for MSPs who
elect the integration between the Integration Partner Offerings and Gradient
MSP Services. Integration Partner shall not: (a) make the Gradient Integration
Partner Services available to anyone other than Authorized Users; (b) transfer,
sublicense, resell, time share or similarly exploit the Gradient Services; (c)
access the Gradient Services, including the Gradient Software,Documentation
and Gradient Data, to build a competitive product or service; (d) reverse
engineer, modify, adapt, or otherwise attempt to gain unauthorized access to the Gradient Services or Gradient Platform, or knowingly or through gross
negligence or willful misconduct introduce any malicious code into the Gradient
Services or Gradient Platform; (e) provide to Gradient any Integration Partner
Data that contains sensitive personal information; or (f) use the Gradient
Services for any purposes not contemplated by this Agreement. For clarity, the
foregoing limitation applies to the Gradient Data and any other information
derived from use of the Gradient Services, as well as the Gradient Services
itself.
2.4. Trial Services. From time to time, Gradient may invite Integration Partner to try
features or pre-release versions of services that are not generally available for
production use (“Beta Services”). Beta Services will be clearly designated as
beta, pilot, limited release, developer preview, non-production, evaluation, or trial
usage. Integration Partner's use of Beta Services willbe for the term specified by
Gradient and if no term is specified, then for the earlier of one yearfrom the start
date of the Beta Services or when that version of the Beta Services becomes
generally available, and therefore part of the Gradient Services. Gradient may
discontinue Beta Services at any time in Gradient’s sole discretion and may
never make them generally available. NOTWITHSTANDING ANYTHING TO
THE CONTRARY, THE BETA SERVICES ARE PROVIDED “AS-IS”WITHOUT
ANY WARRANTY OF ANY KIND. GRADIENT HEREBY DISCLAIMS ALL
LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN
CONNECTION WITH ANY BETA SERVICE.
2.5. Costs. Each party shall be responsible for its own costs and expenses required
for the technical integration and neither party shall charge the other party for any
development support or technical support as contemplated under this
Agreement. Unless mutually agreed upon as evidenced in writing by an
authorized signatory, neither party shall be obligated to pay fees paid to the other
party in relation to any introductions to potential customers.
3. Proprietary Rights.
3.1. Ownership of and Limited License to Integration Partner Data. Except for
Gradient's use rights in this Agreement, Integration Partner owns and retains all
right, title, and interest in and to its Integration Partner Data, Integration Partner
Offerings and Integration Partner Properties. Integration Partner grants to
Gradient a limited and revocable, non-exclusive, non-transferable, royalty-free
worldwide license to access, collect, use, process, store, copy, and create
derivative works from the Integration Partner Data only to provide the Gradient
MSP Services to customers as set forth in this Agreement.
3.2. Use of MSP Data. Gradient shall ensure that it obtains all necessary rights
directly from MSPs, pursuant to contracts between Gradient and such MSPs, to
use the MSP Data pushed from the Integration Partner Offerings to the Gradient
MSP Service. Neither party is a subprocessor of the other party. Gradient shall
use all such MSP Data only in accordance with Applicable Laws (including
without limitation data protection laws) and only in accordance with instructions
provided by the applicable MSP related to providing, maintaining, and improving the Gradient MSP Services (the "Permitted Purpose"). Integration Partner
acknowledges that, in connection with the Permitted Purpose, the MSP Data will
be commingled with data received from other Integration Partners of the
Gradient Services; provided, that the MSP Data shall not itself be made
available to any other Integration Partner.
3.3. Use of Integration Partner Data. Gradient may use the Integration Partner Data
for as long as reasonably necessary for the Permitted Purpose. Integration
Partner acknowledges, in connection with the Permitted Purpose, the
Integration Partner Data transferred to Gradient MSP Services through the API
Integration will be commingled with data received from otherIntegration Partners
of the Gradient Services; provided, that the Integration Partner Data shall not
itself be made available to any other Integration Partners.
3.4. Ownership of and Limited License to Gradient Services and Gradient Data.
Gradient owns and retains all rights, title and interest in and to the Gradient
Services, including the Gradient Software, Documentation, and Gradient Data.
Gradient grants to Integration Partner a limited, royalty-free, non-exclusive,
worldwide right and license to access and use the Gradient Services,including
the Gradient Software, Documentation and Gradient Data, only as set forth in
this Agreement.
3.5. Audit Rights. Gradient shall have the right to use the capabilities of the Integration
Partner Service to confirm the Integration Partner’s compliance with this
Agreement.
3.6. Feedback. If Integration Partner (including any Authorized User) provides
Gradient any feedback in connection with the Gradient Services, Integration
Partner shall use reasonable efforts to ensure the accuracy of such feedback and grants Gradient an unlimited, irrevocable, perpetual, sublicensable, royalty-
free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Integration Partner or any Authorized User.
3.7. Aggregated Data. Integration Partner acknowledges and agrees that Gradient
may use category and subcategory data derived from Integration Partner Data
that is deidentified and/or aggregated with comparable data received from other
Integration Partners (“Aggregated Data”) for internal purposes such as
operating, maintaining, and improving the Gradient Services and distribution in
general benchmarking or industry-related reports. However, notwithstanding the
forgoing, Gradient shall provide Integration Partner with reasonable advance
notice (but not less than ten (10) business days) of any published report, blog
or other material that contains Aggregated Data derived from the relationship
contemplated by this Agreement. The publication of any such report, blog, or
other material shall be subject to Integration Partner’s prior written consent,
which shall not be unreasonably withheld. Reasonable grounds for Integration
Partner to withhold consent include, by way of example, Integration Partner
believes in good faith that (i) its identity can reasonably be determined despite
the aggregation and deidentification efforts of Gradient, (ii) data related to
Integration Partner and its customers is not accurately or fairly portrayed, or (iii) the use of the data is not authorized in accordance with this Agreement.
Aggregated Data shall not be reasonably capable of identifying any underlying
individual nor identify the Integration Partner as a source of any Aggregated
Data. Gradient will make no attempt to reidentify the Aggregated Data. For
absolute clarity, the Parties agree that should the license to the Integration
Partner Data be revoked by Integration Partner under section 3.1 above,
Gradient shall be able to continue to use the Integrated Partner Data where it
has been deidentified and aggregated into the Aggregated Data.
3.8. Reservation of Rights. Subject to the limited rights expressly granted in this
Agreement, each party and its licensors shall retain all right, title and interest
(including, without limitation, all patent rights, copyrights, trademark rights, trade
secret rights and all other intellectual property rights) in and to such party’s
products, services, technology, data, and documentation. No rightsare granted
to a party pursuant to this Agreement other than as expressly set forth in this
Agreement.
4. Gradient Obligations.
4.1. Security. Gradient will maintain a security program with reasonable and
appropriate administrative, technical, organizational, and physical security
measures designed to protect Integration Partner Data and MSP Data against
unauthorized access, disclosure, and loss.
4.2. Deletion of Data. Upon termination of this Agreement, Integration Partner may
request deletionof the Integration Partner Data. Subject to the provision of Section
3.3 (Use of Integration PartnerData), Gradient will perform such deletion within
ninety (90) days and where requested by Integration Partner, certify the same in
writing to the requesting party. Notwithstanding the foregoing, nothing in this
Agreement shall require Gradient to alter, modify, delete, or destroy back-up or
archival records made in the ordinary course of business by Gradient using
Gradient’s standard back-up systems, provided that Integration Partner Data
embodied in such back-up or archival records shall remain subject to the
obligations of this Agreement.
4.3. Support. Gradient shall provide support to Integration Partner during the
development and testing of the integration where applicable. Each party shall use
best efforts to maintain the integration after an upgrade or new release of such
party’s offering (i.e., as to Gradient, the Gradient MSP Services and as to
Integration Partner, the applicable Integration Partner Offering).
4.4. Implementation Phase Technical Support. Gradient will provide telephone,
dedicated e-mail and/or online support documentation. Any such support will be
provided through (Gradient’s Client Support Centre).The Client Support Centre is
open on Canadian and U.S. business days (“Business Days”) from 8:00 a.m. to
5:00 p.m. Mountain Time (“Business Hours”).
4.5. Ongoing Support Collaboration. The parties shall cooperate with each other to
identify the root cause of any integration issues and to appropriately route support
calls to the other party.
(a) Ongoing Technical Support, Gradient will provide telephone, e-mail and/or
online support documentation. Any such support will be provided through
Gradient’s Client Support Centre, which shall be open on Business Days
during Business Hours.
(b) API Change Communication. “Non-Breaking” changes are logged as
Release Notes in the API online documentation and can be publicly
subscribed to for change notifications. “Breaking” changes are
communicated to the Authorized User directly via email with at least 6 months
notice before deprecation.
(c) Training and Support Team Collaboration. Gradient and Integration Partner
will inform and train their respective support teams regarding the integrations
covered by this Agreement to facilitate identification of problems that may
relate to the integration. If a team identifies the root cause is with the other
party’s product, they will direct the customer to contact such other party’s
support organization. Each party will identify one or more support contacts
that can contact the other party’s support organization when reasonably
required to troubleshoot and identify root cause of a problem.
4.6. MSP API Keys. Gradient is responsible for revoking MSP API keys upon
termination of an MSP’s contract with Gradient and Integration Partner shall have
no liability for any continuation of Integration Partner Data or MSP Data to the
Gradient MSP Service if Gradient fails to do so.
5. Integration Partner Obligations.
5.1. Account Registration. In order to access the Gradient Integration Partner Services
console, Integration Partner shall register for a Gradient account. Account
information must be accurate, current, and complete, and will be treated by
Gradient in accordance with the Gradient Privacy Notice. Integration Partner
agrees that Gradient may send non-marketing, transactional notices, statements,
and other information relating to the Gradient Integration Partner Services by
email or through Integration Partner’s account. Integration Partner will be solely
responsible for all use of the Gradient Integration Partner Services under its
account, including the acts and omissions of its Authorized Users and any
decisions made based on the provision of the Gradient Integration Partner
Services to Integration Partner. In addition, Integration Partner will use
commercially reasonableefforts to prevent unauthorized access to the Gradient
Integration Partner Services and will notify Gradient immediately of such
unauthorized access.
5.2. Integration Partner Responsibilities. Integration Partner will use the Gradient
Integration Partner Services only: (a) in accordance with the terms of this
Agreement and the Documentation; and (b)in compliance with any contractual or
other obligation Integration Partner has to any third party.Integration Partner is
solely responsible for ensuring that its use of the Gradient Integration Partner
Services,including its provision of any Integration Partner Data, does not violate
any Applicable Laws. Without prejudice to the generality of the foregoing,
Integration Partner shall ensure it has the right to transfer or provide access to Integration Partner Data and MSP Data to Gradient for the purposes
contemplated in this Agreement (and has obtained any necessary consents or
authorizations to do so).
5.3. Marketing Obligations. Integration Partner during the Initial Term, defined below
in section 10.1, shall: (a) send out dedicated email blasts to the Integration
Partner’s applicable customer base to advise them of the integration partnership
with Gradient; (b) collaborate with Gradient to draft materials announcing and
promoting the integration partnership on social media to be used by Gradient on
the Gradient Platform, Gradient’s website and in other public or private
communications with existing or potential MSPs and other partners; (c)
collaborate with Gradient to draft materials to be used in in-app prompts for MSP’s
about the integration partnership on the Integration Partner’s product(s); and (d)
work with Gradient to create a joint webinar about Gradient Platform and
integration partnership, and Integration Partner shall recruit Integration Partner’s
customer base to attend the webinar.
6. Confidentiality.
6.1. Definitions. Confidential Information of Integration Partner shall include, without
limitation, Integration Partner Data, Integration Partner Offerings, and Integration
Partner Properties, and Confidential Information of Gradient shall include, without
limitation, the Gradient Software, the GradientData, all Documentation and the
Beta Services. Confidential Information of each party shall include the terms and
conditions of this Agreement, as well as business and marketing plans,
technology and technical information, product plans and designs, pricing, and
business processesdisclosed by such party. However, Confidential Information
shall not include any information thatthe Receiving Party can document (a) is or
becomes generally available to the public without breach of any obligation owed
to the Disclosing Party; (b) was known to the Receiving Party priorto its disclosure
by the Disclosing Party without breach of any obligation owed to the Disclosing
Party or any third party including an MSP; (c) is received from a third party without
breach of any obligation owed to the Disclosing Party; or (d) was independently
developed by the Receiving Party.
6.2. Confidentiality Obligations. Receiving Party shall use the same degree of care
that it uses to protect the confidentiality of its own confidential information of like
kind (but in no event less than reasonable care) (a) not to use or disclose any
Confidential Information of the Disclosing Party for any purpose outside the scope
of and as authorized by this Agreement; and (b) except as otherwise authorized
by the Disclosing Party in writing or as necessary to fulfill Receiving Party’s data
protection rights and obligations as described herein, to limit access to
Confidential Information of the Disclosing Party to those of its employees,
contractors and agents who need such access to carry out Receiving Party’s
rights and obligations under this Agreement and to deliver the integration to MSPs
as contemplated herein. Neither party shall disclose the terms of this Agreement
or any Order Form to any third party other than its legal counsel and accountants
or in confidence in connection withcorporate transactional due diligence activities.
6.3. Mandated Disclosures. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so; provided, the
Receiving Party gives the DisclosingParty prior written notice of such compelled
access or disclosure (to the extent legally permitted)and reasonable assistance,
at the Disclosing Party’s cost, if the Disclosing Party wishes to contestthe access
or disclosure. If the Receiving Party is compelled by law to access or 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
access or disclosure, the DisclosingParty will reimburse the Receiving Party for
its reasonable cost of compiling and providing secureaccess to such Confidential
Information.
7. Warranties; Disclaimer.
7.1. Warranties. Each party warrants that it has the authority to enter into this
Agreement and providethe rights granted herein and that it will comply with all
Applicable Laws applicable to their respective obligations under this Agreement.
7.2. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
THE GRADIENT SERVICES, GRADIENT SOFTWARE AND ANY RELATED
CONTENT OR MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”
AND ANY PROMISES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY
DISCLAIMED. GRADIENT DOES NOT REPRESENT THAT THE GRADIENT
SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET
INTEGRATION PARTNER’S REQUIREMENTS. SUBJECT TO THE GRADIENT
WARRANTIES ABOVE, INTEGRATION PARTNER ACKNOWLEDGES THAT,
AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF
THE GRADIENT SERVICES MAY CHANGE OVER TIME.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
INTEGRATION PARTNER DATA, INTEGRATION PARTNER MSP DATA,
INTEGRATION PARTNER OFFERINGS, INTEGRATION PARTNER
PROPERTIES, AND ANY RELATED CONTENT OR MATERIALS ARE
PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY PROMISES CONTAINED
IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES,
REPRESENTATIONS OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
8. Indemnification.
8.1. Gradient Indemnification.
(a) General. Gradient will defend Integration Partner and its Affiliates and their
respective officers, directors and employees against any third party claim, demand, suit, investigation or proceeding (each, a “Claim”) made or brought
against such party: (i) alleging that the use of the Gradient logo, Gradient
Software, Gradient Platform or Gradient Integration Partner Services or any
component thereof as permitted hereunder infringes or misappropriates the
intellectual property right of a third party; or (ii) arising out of Gradient’s
violation of Applicable Laws, breach of Section 3.2, or gross negligence or
willful misconduct, and shall indemnify Integration Partner for any damages,
attorneys fees, costs, fees or other expenses incurred by or awarded against
Integration Partner as a result of, or for any amounts paid by Integration
Partner under a court-approved settlement of, a Claim. If the use of the
Gradient Software by Integration Partner has become, or in Gradient’s opinion
is likely to become, the subject of any Claim, Gradient may at its option
terminate this Agreement on written notice to Integration Partner.
(b) Limitations. Gradient will have no liability or obligation with respect to any
Claim to the extent that such Claim is caused in whole or in part by: (i) use of
the Gradient Software by Integration Partner that is not in accordance with this
Agreement; or (ii) the combination, operation, or use of the Gradient Software
with other applications, portions of applications, productsor services where the
Gradient Software would not by itself be infringing. This Section states
Gradient’s entire and exclusive obligation, and Integration Partner’s exclusive
remedy, for any claim of any nature related to the subject matter described in
this Section.
8.2. Integration Partner Indemnification. Integration Partner will defend Gradient, its
officers, directors and employees against any Claim arising out of: (a) any
violation of Applicable Laws by Integration Partner; or (b) Integration Partner’s
gross negligence or willful misconduct, and shall indemnify Gradient for any
damages, attorneys’ fees, costs, fees or other expenses incurred by or awarded against Gradient as a result of, or for any amounts paid by Gradient under a court-
approved settlement of, a Claim.
8.3. Procedure. The indemnified party will provide the indemnifying party with prompt
written notice of any claim, suit or demand, the right to assume the exclusive
defense and control of any matter that is subject to indemnification, and
cooperation with any reasonable requests assisting the indemnifying party’s
defense and settlement of such matter.
9. Limitation of Liability.
9.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT,
CONTRACT, OR OTHERWISE, WILL GRADIENT BE LIABLE TO THE
INTEGRATION PARTNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER,
INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST
SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR
DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. EXCEPT AS DESCRIBED IN THIS PARAGRAPH UNDER NO
CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT,
CONTRACT, OR OTHERWISE, WILL GRADIENT BE LIABLE TO THE
INTEGRATION PARTNER FOR ANY DAMAGES, COSTS, ORLIABILITIES IN
AGGREGATE IN EXCESS OF $1,000.THE PROVISIONS OF THIS SECTION
9 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE
PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET
FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS
AGREEMENT.
10. Fees
10.1. Fees. Gradient may in its sole discretion change the fees for Gradient Services
during the Term. Any change in fees for the Gradient Services that varies from the
fees as stated in the applicable Order Confirmation will take effect after the end of
the then applicable Term and where Gradient has provided Integration Partner with
ninety (90) days written notice of the change in fees.
10.2. Invoicing and Payment. Any applicable fees will be invoiced on a monthly basis.
Integration Partner will provide Gradient with valid and updated credit card
information or alternative payment that Gradient may accept at its sole discretion.
If Integration Partner provides credit card information to Gradient, Integration
Partner authorizes Gradient to charge such credit card for all services listed in the
Order Confirmation for the initial subscription term and any renewal subscription
term(s). Such charges will be facilitated by Gradient’s third party payment
processors and will be made on the 1st day of every month. Integration Partner is
responsible for maintaining complete and accurate billing and contact information
with Gradient.
10.3. Overdue Payments. Any payment not received from Integration Partner by the due
date may accrue (except with respect to charges then under reasonable and good
faith dispute), at Gradient's discretion, late charges at the rate of 1.0% of the
outstanding balance per month (12.67% per annum), or the maximum rate
permitted by law, whichever is lower, from the date such payment was due until
the date paid.
10.4. Taxes. Unless otherwise stated, Gradient's fees do not include any direct or
indirect local, state, provincial, federal, or foreign taxes, levies, duties, or similar
governmental assessments of any nature, including value-added, goods and
services, harmonized, use or withholding taxes (collectively, "Taxes"). Where
applicable, Integration Partner is responsible for paying all Taxes associated with
its purchases hereunder, excluding taxes based on Gradient's net income or
property. If Gradient has the legal obligation to pay or collect Taxes for which
Integration Partner is responsible under this section, the appropriate amount shall
be invoiced to and paid by Integration Partner, unless Integration Partner provides
Gradient with a valid tax exemption certificate authorized by the appropriate taxing
authority.
10.5. Suspension of Service. If Integration Partner’s account is thirty (30) days or more
overdue (except with respect to charges then under reasonable and good faith
dispute), in addition to any of its other rights or remedies, Gradient reserves the
right to suspend the Integration Partner Services provided to Integration Partner,
without liability to Integration Partner, until such amounts are paid in full.
11. Term and Termination.
11.1. Term. The term of this Agreement will commence on the date of the Order
Confirmation (the “Effective Date”) and will continue for a period of twelve (12)
months (the “Initial Term”). Thereafter, the term of the Agreement shall be
automatically renewed for subsequent one (1) year terms (any such subsequent
renewal terms referred to in this Agreement as a “Renewal Term” and together with
the Initial Term, the “Term”), so longas Gradient is providing Gradient Integration
Partner Services to Integration Partner. Either partymay terminate this Agreement
on at least six (6) months written notice to the other party.
11.2. Termination for Cause; Insolvency. Either party may terminate this Agreement
immediately on giving notice in writing to the other party if the other party commits
any material breach of any term of this Agreement and has not cured such breach
(if capable of cure) within thirty (30) days of its receipt of written notice of the
breach. In addition, either party may terminate this Agreement immediately on
giving notice in writing to the other party if the other party files for bankruptcy;
becomes or is declared insolvent, or is the subject of any proceedings related to
its liquidation, insolvency or the appointment of a receiver or similar officer for it;
makes anassignment for the benefit of all or substantially all of its creditors; or
enters into an agreement for the cancellation, extension, or readjustment of
substantially all of its obligations.
11.3. Survival. The provisions of this Section 11.3 and the following Sections will
survive any termination of this Agreement: Section 2.3 (License Restrictions),
Section 3.2 (Use of MSP Data), Section 4.2 (Deletion of Data), Section 6
(Confidentiality), Section 7 (Warranties and Disclaimers), Section 8
(Indemnification), Section 9 (Limitation of Liability), Section 10 (Fees) and Section
12 (General Provisions) except for Section 12.1. The termination of this
Agreement shall not terminate the integration and MSPs may continue to leverage
the integration for so long as the integration continues to work.
12. General Provisions.
12.1. Marketing. Each party shall, only with the prior written consent of the other party,
have the right to issue a press release, blog or similar public announcement
regarding the integration partnership under this Agreement. Notwithstanding the
forgoing, Integration Partner grants Gradient the right to use Integration Partner’s
company name and logo as a reference for marketing or promotional purposes
on the Gradient Platform, Gradient’s website and in other public or private
communications with existing or potential MSPs and other partners. Gradient
grants Integration Partner a revocable license to use Gradient’s company name
and logo as a reference for marketing or promotional purposes on the Integration
Partner Offerings, Integration Partner’s website and in other public or private communications with existing or potential MSPs and other partners, subject to
Gradient’s standard trademark usage guidelines as provided to Integration
Partner from time-to-time Eachparty hereby agrees that all goodwill arising out of
the use of the other party's trade names and trademarks pertaining to such other
party's services shall inure solely to the benefit of such otherparty. Each party shall
promptly cease using the other party’s logo upon termination of this Agreement.
Neither party shall make any representations, warranties or commitments on
behalf of the other party regarding the integration.
12.2. Force Majeure. Neither party shall be liable hereunder by reason of any failure or
delay in the performance of its obligations due to events beyond the reasonable
control of such party, which may include denial-of-service attacks, strikes,
shortages, riots, fires, acts of God, war, terrorism, and governmental action
provided that the non-performing party notifies the other party of the force majeure
event promptly and uses commercially reasonable efforts to mitigate the effect of
the same on the other party.
12.3. No Agency. Nothing herein will be construed to create a partnership, joint venture
or any type ofagency relationship between Gradient and Integration Partner.
12.4. Notices. Marketing and business-related notices may be delivered by email. All
legal notices under this Agreement will be in writing addressed to the parties at
the address set forth in the Order Confirmation and will be deemed to have been
duly given (a) when received, if personally delivered; (b) the first business day
after sending by email; (c) the day after it is sent, if sent for next day delivery by
recognized overnight delivery service; and (d) upon receipt, if sent by certifiedor
registered mail, return receipt requested.
12.5. Governing Law; Venue. This Agreement and any disputes hereunder will be
governed by the lawsof the Province of Alberta and the Federal laws applicable
therein without regard to its conflict oflaw principles. The provincial courts located
in Calgary, Alberta shall have exclusive jurisdiction to adjudicate any dispute
arising out of or relating to this Agreement. Each party hereby consents to the
exclusive jurisdiction of such courts. No choice of laws rules of any jurisdiction
shall apply to this Agreement. Each party also hereby waives any right to jury trial
in connection with any action or litigation in any way arising out of or related to
this Agreement. The application of the United Nations Convention on Contracts
for the International Sale of Goods to this Agreement is expressly excluded. The
parties confirm that it is their wish that this Agreement as well as all other
documents relating to this Agreement, including notices, be drawn up in English
only.
12.6. No Assignment. Neither party may assign any of its rights or obligations
hereunder, whether by operation of law or otherwise, without the prior written
consent of the other party (not to be unreasonably withheld). Notwithstanding the
foregoing, either party may assign this Agreementin its entirety, without consent
of the other party, to its Affiliate or in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets. Subject to
theforegoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Severability; Waiver. If any provision of this Agreement is held to be
unenforceable, such provision will be reformed to the extent necessary to make
it enforceable, and such holding will not impair the enforceability of the remaining
provisions. The failure by a party to exercise any right hereunder or to enforce
strict performance of any provision of this Agreement will not waivesuch party's
right to exercise that or any other right in the future.
12.8. Entire Agreement. This Agreement constitutes the entire agreementbetween the
parties and supersedes all prior and contemporaneous agreements, proposals,
or representations, written or oral, concerning its subject matter. Without limiting
the foregoing, this Agreement supersedes the terms of any online agreement
electronically accepted by Integration Partner. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless in writing and
signed by the party against whom the modification, amendment or waiver is to be
asserted.
12.9. Export Rules. Integration Partner acknowledges and agrees that the Integration
Partner Services may be subject to export and import controls under the
regulations of Canada, the United States and other countries, and Integration
Partner shall comply with all export and import control regulations of such
countries. Integration Partner shall not use the Integration Partner Services for
any purposes prohibited by export laws, including, without limitation, nuclear,
chemical, or biological weapons proliferation. Integration Partner shall be
responsible for procuring all required permissions for any subsequent export,
import or use of the Integration Partner Services.
Last Updated: [04] January 2023