This Master Partner Agreement (the “Agreement”) is between Domo, Inc., with offices located at 772 East Utah Valley Drive, American Fork UT, 84003, ("Domo"), and the entity or individual agreeing to this Agreement and approved by Domo to participate in the Domo’s Partner Program (“Partner").
This Agreement sets forth the terms and conditions under which Partner may participate in Domo’s Partner Program, subject to Domo written approval of Partner’s specific partner program type and tier. This Agreement is supplemented by Partner Program schedules entered between the parties (“Schedules”). The Schedule attached hereto is the Domo App Solution Partner Schedule. This Agreement, the attached Domo App Solution Partner Schedule and the Domo Partner Program Guide (“Program Guide”) set forth the terms and conditions under which Partner may participate in the Domo Partner Program as an App Solution Partner. The Program Guide is incorporated herein by reference and made a part of this Agreement.
Upon Domo’s acceptance of Partner into the Partner Program, Partner represents and warrants that it will continue to meet the participation qualifications for the duration of Partner’s participation. If at any time Domo determines that Partner does not meet the participation qualifications, Domo may, in its sole discretion, revoke its approval of Partner’s participation in the Partner Program. Partner agrees to notify Domo promptly in writing if App Solution Partner no longer meets the participation qualifications. The participation qualifications, policies and benefits as detailed in the Program Guide are subject to change in Domo’s sole discretion. Changes to the Program Guide will apply following 30 days from the date Domo first publishes a revised Program Guide. Partner is responsible for reviewing the Program Guide regularly to determine the policies and benefits then in effect.
Any individual accepting this Agreement on behalf of a company or other legal entity represents that he or she has the authority to bind such entity to this Agreement. By accepting these terms, Partner represents that it has read, understands and agrees to all of the provisions of this Agreement. An entity may not join or participate in the Domo Partner Program if the entity is Domo’s competitor, except with Domo’s express written consent.
Definitions. The capitalized terms will have the meanings set forth below.
“Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control a party to this Agreement (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
“Confidential Information” means: (a) the Platform, Domo Materials and any information related thereto, disclosed by Domo or its Affiliates; (b) any business or technical information of Domo, Partner or their respective Affiliates that is disclosed in writing and is marked “confidential” at the time of disclosure, or should, by the nature of the disclosure, be reasonably deemed confidential; (c) Subscriber Data; (d) any personal information disclosed hereunder; and (e) the specific terms and pricing set forth in this Agreement. Confidential Information does not include any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) is rightfully obtained by the receiving party from a third party without breach of any restriction on use or disclosure to which such third party is subject.
“Domo Materials” means materials provided or disclosed to Partner by Domo for use by Partner.
“Domo Marks” means Domo trademarks, trade names, service marks, and service names.
"Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audiovisual works and moral rights), trade secrets, trademarks, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Professional Services” means generally any consulting, training, support, implementation, and technical services provided by Partner to Resale Subscriber.
“Program Guide” means the Domo Keiretsu Program Guide, as may be updated by Domo from time to time in its sole discretion and as supplemented and modified as provided in the attached Exhibit A.
“Prospect” means any potential Subscriber or lead of Partner that is identified by Partner as such and for whom Partner has completed a Prospect Registration Form.
“Prospect Registration Form” means the online form provided by Domo for prospect registration, as modified by Domo from time to time in its discretion.
“Qualified Lead” means a Prospect that has been approved by Domo in accordance with this Agreement for potential engagement as a Subscriber and for disclosure of information in support of such potential engagement.
“Referral Fees” means fees paid to Partner by Domo for Referral Subscribers.
“Referral Subscriber” means a Qualified Lead who has entered into a service order with Domo for receipt of the Platform.
“Resale Fees” means fees paid to Domo by Partner for Resale Subscribers.
“Reseller Service Order” means the agreement entered into by and between Partner and Domo for the Resale Subscriber, as applicable.
“Resale Subscriber” means a Qualified Lead who has entered into a Reseller Service Order with Partner.
“Platform” means the Domo Business Cloud platform, delivered as a service, to Subscribers to support their business intelligence needs, as may be updated or modified by Domo from time to time.
“Subscriber” means both Referral Subscribers and Resale Subscribers (named on the applicable Service Order) who subscribe to use the Domo Platform.
“Subscriber Data” means any data uploaded into the Platform, or otherwise provided for processing by the Platform, by or on behalf of Subscriber.
“Taxes” mean (a) all taxes of any kind whatsoever (whether payable directly or by withholding), including without limitation income, franchise, gross receipts, personal property, intangible personal property, ad valorem, value added, goods and services, consumption, sales, use, excise, import or export, documentary and stamp taxes, (b) all government permit or licensees fees and any associated costs, (c) all customs, duty, tariff and similar fees and any associated costs, and (d) any interest and penalties, additions to tax or fees or other additional amounts with respect thereto imposed by any tax or other governmental authority.
“Training Service” means any training services provided to Partner.
1.1 License Grant. Subject to Partner’s participating program type and tier and the terms of this Agreement, Domo grants to Partner during the term of this Agreement a non-exclusive, limited right to: (a) access and use the Platform and any related documentation or materials solely to demonstrate the Platform to Prospects and Qualified Leads in a restricted environment, (b) access and use the Platform for Partner’s internal business purposes as described in the Program Guide and as must be further detailed in a corresponding Service Order entered between the parties, and (c) use the Domo Materials in reselling and referring the Platform. Partner’s use of the Domo Platform is subject to this Agreement and, to the extent not conflicting with this Agreement, the terms of the Domo Services Agreement located at www.domo.com/company/service-terms. Domo may terminate Partner’s use of the Platform at any time for any reason.
1.2 Restrictions. Except as set forth above, Partner may not distribute, sublicense, transfer, or otherwise make available or provide access to the Platform and Domo Materials. Partner acknowledges that the Platform and Domo Materials contain trade secrets of Domo and its licensors. Except as expressly set forth above, Partner will not: (a) use the Platform or Domo Materials, or allow them to be used, in any manner or for any purpose; (b) copy or reproduce the Platform, in whole or in part; (c) modify or create derivative works of the Platform or Domo Materials; (d) remove, obscure or alter any proprietary notices associated with the Platform or Domo Materials; (e) disassemble, decompile, or reverse engineer the Platform, Domo Materials, or any other technology supporting the Platform; or (f) use the Platform or Domo Materials in violation of applicable laws. Domo reserves all rights not expressly granted to Partner herein and Partner will not limit Domo in any way from developing, using, licensing, distributing, modifying, or otherwise freely exploiting the Platform, Domo Materials, or any modifications, enhancements, improvements or derivative works thereof, or permitting third parties from so doing.
2. Partner Obligations.
2.1 Competence. Partner will ensure that its representatives and agents are knowledgeable about the Domo Platform and other Domo offerings, and have completed the applicable Domo training and certification as described in Program Guide for Partner’s specific partner program type and tier, or as otherwise required by Domo from time to time. With respect to Partner’s payment for certification or training, Partner will pay to Domo the fees described in the Program Guide.
2.2 Business Practices. When performing under this Agreement, Partner will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations or warranties concerning the Domo Platform or other offerings, except as set forth in printed marketing collateral or documentation furnished by Domo; (c) conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of Domo; and (d) comply with all applicable federal, state, and local laws and regulations.
2.3 Expense of Doing Business. Except as expressly provided otherwise herein, Partner will bear the entire cost, taxes, and expense of conducting its business in accordance with the terms of this Agreement.
3. Records And Reporting.
3.1 Records; Audit. During the term of this Agreement and for a period of three years thereafter, Partner will maintain complete and accurate books and records regarding Partner’s performance under this Agreement. During such period, Domo will have the right to inspect and audit such books and records for the purpose of confirming Partner’s compliance with the Agreement, including its payment obligations. Any such inspection and audit will be conducted during regular business hours and in such a manner that minimizes any interference with Partner’s normal business activities. In the event such an inspection and audit discloses an underpayment of fees to Domo, Partner will promptly remit the amount of such underpayment to Domo, including reasonable interest. If the underpaid fees exceed five percent of the fees owed over the period covered by the audit, then Partner will also pay Domo’s reasonable costs of conducting the audit.
4. Taxes and Withholding.
4.1 Taxes. All stated prices and fees are exclusive of any Taxes. All such Taxes will be paid by the recipient of the applicable invoice, excluding only taxes based on the net income of the invoicing party. Applicable Taxes will be billed as a separate item on the invoice where possible. Each party will make the payments required hereunder without deduction of any Taxes; provided that the party may deduct only such Taxes imposed on the net income of the other party that are required to be withheld by the party under the laws of the applicable jurisdiction (a) to the extent that the party actually pays such Taxes to the applicable tax authorities, and (b) only to the extent the amount so withheld and paid does not exceed the minimum percentage required to be withheld under applicable law. Each party will provide the other party with official tax receipts documenting their payment of Taxes legally required to be withheld.
4.2 Withholding. No part of a party's compensation under this Agreement will be subject to withholding for any federal, state, social security, workers' compensation or other like taxes or payments, unless required pursuant to notification by a relevant taxing agency. Each party acknowledges and agrees that it will (a) report as income, and pay all taxes upon, all compensation received by it pursuant to this Agreement, and (b) pay for all taxes and other benefits arising from its employment of its employees or contractors participating hereunder.
5.1 Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing their obligations under this Agreement, provided that each such employee and subcontractor is subject to a written agreement or has agreed to be bound by the terms of this Agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein (the “Representatives”). Each party will use all reasonable efforts to maintain the confidentiality of all the other party’s Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In the event that either party or their respective Representatives are requested or required by legal process to disclose any of the Confidential Information of the other party, the party required to make such disclosure must give prompt notice to the other party so that the other party may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, the party required to make such disclosure must disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and must work with the owner of such Confidential Information to minimize the extent and effects of such disclosure. In addition, each party may disclose the terms and conditions of this Agreement as required under applicable securities regulations.
5.2 Data Security. If Partner accesses any Subscriber Data hereunder, Partner must protect Subscriber Data in Partner’s possession from unauthorized use, access, disclosure, alteration, or destruction, through access controls, encryption, regular audits, and other means based on the highest industry standards, as required by law, and as may be further required by Domo from time to time. Partner must immediately notify Domo of any known security breach that may result in the unauthorized use, access, disclosure, alteration, or destruction of Subscriber Data. Upon Domo request, Partner will provide Domo with all Subscriber Data in Partner’s possession. To the extent that any Subscriber Data originates in a country outside of the United States, Partner will comply with applicable privacy laws and Partner will certify that it is a participant in privacy shield, safe harbor, or other programs to the extent available.
5.3 Injunction. Both parties understand and agree that money damages may not be a sufficient remedy for any breach of this section by the receiving party and that the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach, without having to post any bond or any other form of security, without having to show any likelihood of irreparable harm, and without having to prove that money damages would be an inadequate remedy. Such remedies will not be deemed to be the exclusive remedies for a breach by a receiving party of this Agreement, but will be in addition to all other remedies available at law or in equity to the disclosing party.
5.4 Publicity. Notwithstanding the foregoing, Domo may identify Partner on Domo’s partner lists and in its marketing and advertising materials, and each party may announce that Partner is Domo certified using the appropriate program certification, and reproduce the other party’s name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith. Each party may disclose the other party’s name and the value of this Agreement in connection with any filings or disclosures required under applicable state or federal securities laws.
6. Proprietary Rights.
6.1 Ownership. The Platform, Domo Materials, and all Intellectual Property Rights therein, are and will remain the sole and exclusive property of Domo. Partner will not reproduce and not alter, remove or obscure, the Intellectual Property Rights notices of Domo and its licensors, as provided by Domo. Partner will promptly report to Domo any infringement or other violation of such Domo Intellectual Property Rights rights of which Partner becomes aware.
6.2 Trademark License. Subject to Partner’s compliance with the terms and conditions of this Agreement, Domo hereby grants to Partner a non-exclusive, non-transferable license to use the Domo Marks solely in connection with Partner's advertising, promotion, distribution, and sale of the Platform in accordance with this Agreement. Any specific use of the Domo Marks on collateral or in press releases must be pre-approved by Domo in writing and must correctly attribute ownership of the Domo Marks to Domo in accordance with applicable law and Domo’s then-current trademark usage guidelines. Partner will not remove or obscure any Domo Marks on the Platform, and will not attach any additional trademarks, logos or trade designations on the Platform. Partner will supply Domo with samples of its use of the Domo Marks upon request. Partner acknowledges and agrees that Domo owns the Domo Marks and that any and all goodwill derived from the use of the Domo Marks by Partner hereunder inures solely to the benefit of Domo. Partner will at no time contest or aid in contesting the validity or ownership of any Domo Mark or take any action in derogation of Domo’s rights therein. Nothing in this Agreement will be considered a grant of right or license to use the trademarks or logos of Domo Subscribers and Partner acknowledges that any such is prohibited. Domo may revoke this license at any time in its sole discretion.
7.1 Warranty. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered, and this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of this Agreement, or performance of this Agreement; and (c) the execution and delivery of this Agreement, and performance of this Agreement, does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SCHEDULE HERETO, ALL SERVICES, TOOLS, AND PROFESSIONAL SERVICES ARE PROVIDED AS-IS AND EACH PARTY HEREBY DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY ACKNOWLEDGES THAT NEITHER DOMO NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, INCLUDING SEARCH ENGINES. DOMO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.1 Partner Indemnity. Partner will defend, indemnify and hold harmless Domo, its Affiliates, subsidiaries, and their respective officers, directors, and employees, from any liability, damages and expenses (including court costs and reasonable attorneys' fees) arising out of or resulting from any third-party claim based on or otherwise attributable to: (a) Partner’s gross negligence or intentional misconduct; (b) any misrepresentations made by Partner with respect to Domo or the Platform (c) any claim against Domo alleging Partner’s actions under this Agreement result in a violation of any third party rights of privacy or confidentiality; (d) any claim against Domo that the Professional Services deliverables provided by Partner hereunder infringe any third party Intellectual Property Right, (e) Partner’s actions that result in a material breach of Subscriber Data, or (f) Partner’s violation of applicable law.
8.2 Domo Indemnity. Domo will defend, indemnify and hold harmless Partner, its Affiliates, subsidiaries, and their respective officers, directors, and employees, from any liability, damages and expenses (including court costs and reasonable attorneys' fees) arising out of or resulting from any third-party claim based on or otherwise attributable to: (a) Domo’s gross negligence or intentional misconduct; and (b) Domo’s violation of applicable law.
8.3 Indemnified Party Obligations. The indemnified party must: (a) promptly give written notice of the claims to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the claim; and (c) provide to the indemnifying party reasonable assistance in defending the claim, at the indemnifying party’s expense.
9. Limitation of Liability.
9.1 Cap on Liability. EACH PARTY'S TOTAL LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE GREATER OF THE PAYMENTS MADE BY THE LIABLE PARTY UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY, OR US$25,000. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL) OR COSTS OF PROCURING SUBSTITUTE SERVICE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF SERVICES PROVIDED HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DOMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.2 Liability Cap Exclusions. THE LIMITATIONS CONTAINED IN THIS SECTION WILL NOT LIMIT A PARTY’S (i) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (ii) LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY, (iii) LIABILITY FOR A PARTY’S BREACH OF ITS CONFIDENTILALITY AND DATA SECURITY OBLIGATIONS UNDER THIS AGREEMENT, OR (iv) LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. Term and Termination.
10.1 Term. The initial contract term of this Agreement will be 12 months from the Effective Date, and the Agreement will continue to be renewed automatically for subsequent 12-month terms unless either party gives written notice of non-renewal at least 30 days prior to the end of the then-current term.
10.2 Termination. Domo may terminate this Agreement at any time for its convenience by providing 30 days written notice to Partner. Either party may terminate this Agreement, at any time, in the event that the other party breaches any material term of this Agreement and fails to cure such breach within ten days following the date of receipt of written notice thereof from the non-breaching party.
10.3 Termination for Insolvency. In the event a Party receives notice that the other Party is insolvent or fails to pay its obligations as they arise or upon any proceeding being commenced by or against a Party under any law providing relief to the Party (an “Insolvency Event”), that Party that is not the subject of the Insolvency Event may terminate this Agreement immediately upon notice to the Party that is the subject of the Insolvency Event.
10.4 Termination for Financing Default. If Partner elects to finance all or any portion of the fees payable under this Agreement through a lender referred to Partner by Domo, Partner agrees that if Partner defaults under its financing agreement with its lender, then effective upon Domo’s written notice to Partner, with respect to the financed fees, Domo may terminate the Platform license and Professional Services to be provided hereunder.
10.5 Effect of Termination. Upon any termination or expiration of the Agreement: (a) all rights and licenses granted by Domo hereunder will automatically cease; (b) Partner will immediately cease all use of the Domo Marks and discontinue all representations that it is a Partner of Domo; (c) each party will promptly return to the other all of the other party’s Confidential Information within its possession or control, and will certify in writing that it has complied with its obligations to return all such Confidential Information (except that each party may retain archival copies of the Confidential Information in accordance with its data retention policies); and (d) the payment date of all amounts due Domo will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been otherwise provided.
10.6 Survival. The following sections will survive the expiration or termination of this Agreement: Definitions, Records and Reporting, Taxes, Confidentiality, Proprietary Rights, Warranty Disclaimers, Indemnity, Limitation of Liability, Term and Termination, General, and any payment obligation accrued at termination will survive the termination of this Agreement for any reason.
11.1 Geographic Limitation. Unless otherwise mutually agreed between the Parties, the geographic territory of this Agreement is limited to Resale Subscribers and Referral Subscribers located in the same country as Partner’s address provided above.
11.2 Assignment. Neither company will have any right to assign this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s express prior written consent, except that either party may assign all of its rights and obligations under this Agreement to a successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of it business or assets to which this Agreement relates.
11.3 Governing Law and Jurisdiction. This Agreement is governed by Delaware law, without reference to conflict of laws principles. Any dispute arising out of or relating to this Agreement, or the interpretation, making, performance, breach or termination thereof, must be settled by a court of competent jurisdiction in New Castle County, Delaware. In the event any action is brought by either party in connection with this Agreement, the substantially prevailing party will be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such party.
11.4 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
11.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
11.6 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
11.7 Notices. Except as otherwise specified in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth on in this Agreement and with the appropriate postage affixed. Either party may change its contact and address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.8 Affiliates. Domo and Partner shall be responsible for all acts and omissions, including financial obligations, of their respective Affiliates, agents, contractors or third parties who participate under this Agreement or any schedule. Any such Affiliate (a) covenants and agrees that it will be bound by all of the provisions of the Agreement and applicable Schedules as if all references to Partner in the Agreement were references to the Affiliate; and (b) will have all of the rights and obligations of Partner under the Agreement. Each party is responsible to the other party for ensuring that its representatives and Affiliates fully comply with the party’s obligations under this Agreement and applicable Schedules.
11.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, or acts of God.
11.10 Relationship of Parties. Nothing contained in this Agreement, including without limitation the title of this Agreement, shall be construed as creating any agency, partnership, franchise, fiduciary, employment, sales agreement, joint venture or other form of joint enterprise or other similar relationship between the parties, and neither party has the authority to bind or incur any obligation on behalf of the other. Notwithstanding any other provision to the contrary, the parties to this Agreement are independent contractors. Any use of the term “partner”, “partnership” or any similar term in this Agreement is for convenience only and refers only to the spirit of cooperation that exists between Partner and Domo and does not imply, describe or create any legal partnership or any responsibility by one for the obligations or liabilities of the other. There are no third-party beneficiaries to this Agreement.
11.11 Export Control. Each party agrees to comply fully with all relevant export laws and regulations of the United States and similar applicable laws in all countries in which the party conducts business (“Export Laws”). Each party’s duties in connection with the foregoing include but are not limited to ensuring that neither the Platform, nor any direct product thereof, output of services, nor technical data provided hereunder are: (a) exported or re-exported directly or indirectly in violation of Export Laws; (b) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation; or (c) distributed to persons on the Denied Parties list of the U.S. Bureau of Industry and Security.
11.12 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Domo’s corporate policies regarding foreign business practices, each party and its employees and agents must not directly or indirectly make and offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the geographic territory or the United States government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist the party in obtaining, retaining, or directing any such business.
11.13 Insurance. Each party must, at its own expense, provide the following insurance coverage during the term of this Agreement:
(a) Worker’s Compensation Insurance as required by the applicable law of the state or country in which the work is being performed, including employer’s liability with a minimum limit of US$1,000,000 for bodily injury by accident, and US$1,000,000 for bodily injury by disease.
(b) Commercial General Liability Insurance covering bodily injury and property damage liability, personal and advertising injury liability, products completed operations including broad form contractual liability with minimum coverage of US$2,000,000 per occurrence.
(c) Business Automobile Liability Insurance covering bodily injury and property damage liability, including coverage for all owned, non-owned, and hired vehicles with a minimum combined single limit of US$1,000,000 per occurrence.
(d) Professional Liability Insurance for errors and omissions with a minimum limit of US$2,000,000 per claim.
(e) Umbrella Liability insurance in excess of employer’s liability, commercial general liability, automobile liability and professional liability for errors and omissions coverage required above in an amount not less than US$5,000,000 per occurrence.
Each party will furnish the other party with applicable certificates of insurance from time to time upon reasonable request. All insurance coverage required hereunder must be procured from insurers with A.M. Best’s Performance Rating at a minimum of A- with a financial size category of at least Class VII. Policies cannot be cancelled or materially altered without 30 days’ prior written notice.
11.14 Entire Agreement. This Agreement, including the Program Guide and any exhibits and schedules hereto, constitute the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
Master Partner Agreement
Domo App Solution Partner Schedule
This App Solution Partner Schedule sets forth the terms and conditions under which Domo authorizes Partner to participate in Domo’s App Solution Partner Partner program, subject to Partner’s specific partner program type and tier. This App Solution Partner Schedule amends the Agreement. If there are any provisions inconsistent between this App Solution Partner Schedule and the Agreement or any other Schedule, this App Solution Partner Schedule will prevail as concerning its subject matter.
1. Additional Definitions. “App” means any application, including but not limited to data connectors, card builder applications, app builder applications, development kit applications, and related data and data procedures that Partner submits to Domo for review and either lists as an app on the Domo Appstore or builds using app builder tools provided by Domo to Partner and, upon Domo written approval, publishes directly to a Subscriber’s instance of the Domo Platform. “App Solution Partner Services” means the services provided to Partner under this App Solution Partner Schedule, including but not limited to, web-based tools, the Domo Partner community, the Domo Appstore, and Partner training made available by Domo from time to time. “Domo Appstore” means Domo’s online directory of Apps. Among other things, the Domo Appstore allows Partners to list, and allows Subscribers to use and review Apps. The Program Guide provides additional details regarding the Appstore.
2. Domo App Solution Partner Program.
2.1 Program Fees. Participation in the App Solution Partner Partner Program type may be subject to program fees as described in the Program Guide. Partner’s continued membership in the App Solution Partner Program is at all times subject to Partner’s timely payment of any applicable program fees. Unless stated otherwise in the Program Guide, program fees are payable within 30 days of the invoice date and are due annually in advance. Program fees are subject to change at Domo’s discretion, though any changes will not apply retroactively to increase the amount paid during the same App Solution Partner Program term for the same App Solution Partner Program benefits. Payment obligations are non-cancelable and fees paid are non-refundable.
2.2 App Pricing. Domo will provide the technology and services to enable the Domo Appstore, and to process the related App license for Partner. Partner acknowledges that Partner is the distributor of the App. When Partner submits an App, Partner will designate the price (if any) to be charged to Subscribers consistent with the Program Guide, and Domo will charge a Subscriber that price (or its reasonable equivalent in local currency) for the license to Partner’s App acquired through the Domo Appstore.
2.3 App Fees. The App fee owed to Domo by Partner for an App made available to Domo Subscribers is as provided in the Program Guide. Domo will pay Partner the applicable App proceeds (less applicable taxes, App fees owed to Domo, refunds paid to any Subscriber for the App, and other appropriate fees), if any, as full compensation for an App made available to a Subscriber. Payments will occur as detailed in the Program Guide, in accordance with Domo's then‐current payment policies. Partner must provide Domo with all financial, tax, and banking information requested so Domo can pay Partner under this App Solution Partner Schedule. A Subscriber will be deemed to have paid in full for Partner’s App when Domo receives payment from the Subscriber. Any issues with payment should be brought to Domo’s attention. Any failure by Domo to remit the amounts owing to Partner will not affect a Subscriber's rights to the App.
2.4 Taxes on Payment of App Proceeds. Partner is responsible for Partner’s own taxes, including taxes unique to where Partner resides, that are related to payments Partner may receive under this App Solution Partner Schedule. If taxes are required to be withheld on any amounts to be paid by Domo to Partner, Domo will deduct such taxes from the amount owed and pay them to the appropriate taxing authority, as required.
2.5 Refund and Reconciliation. Partner is responsible for all costs and expenses for authorized cancellations and chargebacks of Apps, including the full refund and chargeback amounts paid or credited to a Subscriber. Refunds or chargebacks processed after Partner receives the App proceeds will be debited against Partner’s account. Domo may offset any amounts owed to Domo (including the refund and chargeback costs described in this paragraph) against amounts Domo owes Partner. Partner grants Domo the right to refund fees paid by a Subscriber for a license to an App in accordance with Domo's prevailing Domo policies and applicable laws from time to time.
3. App Responsibility. Partner is responsible for evaluating and testing an App as to its technology, functionality, performance, security, and user interface before submitting the App to Domo for review and listing on the Domo Appstore or publishing directly to a Domo Subscriber’s instance of the Domo Platform. Domo reserves the right to conduct any type of review of Apps. Domo may adopt and change its App review standards and processes in its sole discretion. Apps must be submitted to Domo for review. Partner acknowledges that Partner is solely responsible for, and that Domo has no responsibility or liability of any kind for, the development, installation, operation, or maintenance of Apps. Partner further represents that Partner is solely responsible for the accuracy, legality, and appropriateness of any content or information Partner submits to, or makes available through, the Domo Appstore. Domo reserves the right, in Domo’s sole discretion and for any reason at any time, to refuse to list an App on, or to remove an App from, the Domo Appstore or Subscriber’s instance of the Domo Platform. Domo may conduct a security evaluation of all Apps. Such evaluation may include security testing of the App, and network-level security testing including a vulnerability threat assessment. Domo may conduct such testing itself or through a third party. Domo will cooperate reasonably with Partner to minimize the effects of any such testing on Partner’s business and operations. Partner will cooperate reasonably in any such testing.
4. App Solution Partner Program Rules. In addition to any rules and requirements provided in the Program Guide, the following Domo App Solution Partner Program terms apply to Partner under this Schedule:
4.2 Third-Party Names in Listings. Partner will not include the name of a third party or a third-party's App or other third-party product in its own App without express written authorization from the third party.
4.3 Domo Service Previews. Domo may provide Partner access to pre-release updates of the Domo Platform before making them generally available. Such pre-release updates are Domo Confidential Information. To help ensure a successful Subscriber experience, Partner should conduct regression tests of each App against any such upgraded Domo Platform during any such early access period and promptly notify Domo of any issue Partner encounters.
4.4 Reviews of Apps by Partner. The Domo Appstore may allow Partner to post reviews of or comments related to Apps. Any review or comment by Partner of a App must be made in good faith after reasonable evaluation of the full App. If Partner posts a review of its App, Partner must self-identify and disclose that it is reviewing its own App. If Partner posts a review of a competitor's App, Partner must self-identify and disclose that Partner publishes a competitive App. Partner will not attempt to manipulate rankings, ratings, or comments for any App, Partner, Domo or third-party application.
4.5 App Service Levels. Partner will make Apps available consistent with the standard Domo Service availability terms provided by Domo. Domo may modify its service availability terms from time to time in its sole discretion.
4.6 Providing an App to Subscribers. Partner will offer an App via the Domo Appstore under Partner’s own end user terms. Such terms must be consistent with this App Solution Partner Schedule, provide the Subscriber a non-exclusive, worldwide, license to perform, display, and use the App within the Domo Service, and are subject to Domo review and approval. App end user terms must not make any representation about Domo, the Domo Platform or other Domo products, nor purport to bind Domo.
5. Technical Support. The technical support Partner must provide to a Subscriber licensed to use an App is also described in the Program Guide.
6. App License.
6.1 Domo Appstore. Subject to the terms of this App Solution Partner Schedule, Partner hereby grants Domo the following licenses: (a) a nonexclusive, worldwide, fully paid-up, royalty-free license, for as long as an App is listed on the Domo Appstore, to market the App, the Domo Platform and the Domo Appstore using Partner’s name, logo, and the App name; and (b) a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free license under Partner’s Intellectual Property Rights, to access, use, sell, copy, host, reproduce, display, publicly perform, distribute, modify, and grant sublicenses to do all of the foregoing with respect to each App and any modifications thereto. Partner represents and warrants that Partner owns or possesses all intellectual property and other rights necessary to grant Domo this license.
6.2 Independent Development and Services Suggestions. Nothing in this App Solution Partner Schedule impairs Domo’s right to develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with, any Apps, products, software or technologies that Partner may develop, produce, market, or distribute. Partner hereby grants Domo a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Domo Platform or Partner Services any suggestions, enhancement requests, recommendations or other feedback provided by Partner relating to the operation of such services. Partner will not assert in any way any patent owned by Partner arising out of or in connection with this App Solution Partner Schedule against Domo, its subsidiaries Affiliates, agents, contractors, or Subscribers for the use, licensing, or sale of any Domo products or services
6.3 Free Apps. If an App is provided to a Subscriber at no charge (other than as a trial version), Partner hereby grants Domo a nonexclusive, worldwide, fully paid-up, perpetual, royalty-free license to freely reproduce, distribute, transmit, use, modify, build upon, or otherwise exploit the free App for any purpose, commercial or non-commercial.
7. App Intellectual Property Ownership.Subject to the licenses set forth in this App Solution Partner Schedule, nothing in this App Solution Partner Schedule transfers or assigns to Domo any of Partner’s Intellectual Property Rights in an App or Partner’s other technology, marks, products or services. Nothing in this App Solution Partner Schedule transfers or assigns to Partner any of Domo’s Intellectual Property Rights in the Domo Appstore, the Domo Platform, Domo App Solution Partner Services, Domo marketing materials, marks or other Domo technology, products or services or any modifications or derivative works thereof.
8. Third Party or Open Source Software. Partner represents and warrants that none of its Apps will include any software code that is subject to a license requiring, as a condition of use, modification, or distribution of the software code, that the software code or other software code combined or distributed with it be (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge. Partner represents and warrants that its Apps will comply with all license terms, and that the inclusion of such Apps in the Domo Appstore does not cause any Domo software or element of the Domo Platform to become subject to any other terms. If either party receives any third‐party claim that an App violates any third-party license term, in addition to Domo’s other available remedies, Partner will promptly remedy the basis for the claim (e.g., provide missing notices or attributions, deliver underlying source code, etc.) or update the applicable App to remove the third-party code that is the basis for the claim.
9. Domo Subscriber and Usage Data. To the extent an App seeks to transmit or utilize Subscriber Data or information stored in Domo’s systems about a Subscriber’s configuration and usage of an App (collectively “Subscriber and Usage Data”) outside the Domo Platform, Partner must first explicitly notify Subscriber that its Subscriber and Usage Data will be transmitted outside the Domo Platform and that Domo is not responsible for the privacy, security, or integrity of Subscriber and Usage Data in Partner’s control. Partner must obtain acknowledgment of the notice and explicit consent from the Subscriber to such transmission and use of Subscriber and Usage Data prior to receiving the Subscriber and Usage Data. Partner represents and warrants that to the extent an App stores, processes, or transmits Subscriber and Usage Data, neither Partner nor the App will, without appropriate prior Subscriber consent or except to the extent required by Applicable Law, (a) modify the Subscriber and Usage Data in a manner that adversely affects the integrity of the Subscriber and Usage Data, (b) disclose Subscriber and Usage Data to any third party, or (c) use Subscriber and Usage Data for any purpose other than providing App functionality to the applicable Subscriber via the App. Partner will maintain and handle all Subscriber and Usage Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. A modification or disclosure of Subscriber and Usage Data does not violate either of the two preceding sentences to the extent it results from an activity of the Subscriber using an App where a reasonable Subscriber would expect modification or disclosure of its Subscriber and Usage Data to occur as a result of the activity.
10. Indemnification. Partner will defend, indemnify, and hold Domo harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims made or brought against Domo by a third party (including a governmental entity) arising out of or based on (a) any App or content entered by Partner into the Domo Platform that infringes, misappropriates, or violates any Intellectual Property Right of a third party or applicable law; or (b) Partner’s breach of any representation, warranty, or agreement relating to Partner’s products and services, including an App listed on the Domo Appstore.