VAULT COMPLEMENTARY SERVICE PROVIDERS AGREEMENT
Last Modified: 26 April 2017
PLEASE READ THIS COMPLEMENTARY SERVICE PROVIDERS AGREEMENT CAREFULLY.
This agreement is between you (you or CSP) and Vault (us or we) (Agreement). It describes how we will work together in relation to you acting as a CSP of Vault Services. In order to qualify for the benefits of being registered as a CSP of Vault Services, you must agree to be bound by the terms of this Agreement.
We periodically update these terms and conditions and the version number can be checked at the bottom of this page.
“Active CSP” means a CSP that has completed a CSP Transaction in the previous six months.
“Complementary Service Provider” or “CSP” means a business which services complement the Vault Services.
“End User” means the authorised user of the Vault Services (or a party that uses the Vault Services on an authorised user’s behalf) that: (i) you have caused to subscribe for a Vault Service in accordance with this Agreement; and (ii) has been registered, accepted and is valid in accordance with the clauses 2.2, 2.3 and 2.4 (respectively).
“End User Data” means all information that the End User, or you acting on the End User’s behalf, submits or collects via a Vault Service and all materials that End User, or you acting on the End User’s behalf, provides or posts, uploads, inputs or submits for public display through a Vault Service.
“Inactive CSP” means a CSP that is not an Active CSP.
“Intellectual Property Rights” includes all right, title and interest wherever subsisting (now or in the future) throughout the world and whether registered or not, in and to: (a) copyright, neighbouring rights, Moral Rights and the protection of databases, circuit layouts, topographies and designs; (b) methods, inventions, patents, utility models, trade secrets, confidential information, technical and product information; and (c) trade marks, business and company domain names and get ups,
and includes the right to apply for the registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other right generally falling within this term.
“Loss” means any loss (including, but not limited to direct, indirect, special, consequential or exemplary damages, loss of profit or revenue, loss of expected profit or revenue, and loss as a result of business interruption or corruption of data), claim, action, liability, damage, cost, charge, expense, outgoing, payment, diminution in value or deficiency of any kind or character which a party pays, suffers or incurs or is liable for, including: (a) interest and other amounts payable to third parties; and (b) legal (on a full indemnity basis) and other expenses incurred in connection with investigating or defending any claim or action, whether or not resulting in any liability, and all amounts paid in settlement of any claim or action.
“Moral Right” has the meaning given in the Copyright Act 1968 (Cth) or the Copyright Act 1994 (NZ), as applicable.
“Net Revenue” means the base subscription fee that is actually received by us from an End User (or from you on behalf of an End User) for the first Vault Service that an End User subscribes for and that we recognise as revenue. Net Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds not due to a contract breach by Vault; (ii) shall exclude any implementation, customisation, training, consulting or other professional services, or fees for third party products or services; and (iii) for the avoidance of doubt, not include any fees in respect of any Vault Service beyond the base subscription fee for the initial Vault Service that an End User subscribes for.
“Prospect” means an individual or entity who is a potential new customer of Vault and who has not previously subscribed for, and who is not currently in the process of subscribing for, a Vault Service and who is not otherwise one of your affiliates or Related Parties.
“Rebate” has the meaning given to that term in clause 3.2.
“Referral Fee” has the meaning given to that term in clause 3.3.
“Related Body Corporate” means a body corporate that we control, that controls us, or that is under common control with us.
“Related Party” means a Related Body Corporate, director, officer, employee, agent, contractor, subcontractor or representative.
“CSP IP” has the meaning given to that term in clause 6.2.
“CSPs Program” means the CSP program contemplated by this Agreement.
“CSPs Transaction” means those transactions that are eligible for a Rebate pursuant this Agreement.
“Terms of Service” means our general terms which are available on our website at www.vaultintel.com/legal as amended from time to time.
“Vault” means: (i) if you are located in any part of the world other than New Zealand, Vault IQ AU Pty Ltd; and (ii) if you are located in New Zealand, Vault IQ NZ Ltd.
“Vault Services” means any one or more of our applications, products and services.
1. CSP Transactions.
1.1 CSP Rights and Obligations.
We grant you a limited, non-transferable, non-exclusive right solely to demonstrate and promote the Vault Services to Prospects and, subject to clause 4, train End Users in relation to the use of Vault Services, on the terms set out in this Agreement.
Unless provided for in this Agreement or otherwise agreed to in writing by us, we will not provide you with any support (sales or otherwise) in respect of any Vault Service, Prospect or End User.
Except as permitted by this clause 1.1, you must not copy, licence, transfer, transmit, alter, modify or otherwise use or interfere with the Vault Services, or any portion of them, without our prior written consent. We may impose any terms and conditions on such consent in our sole discretion.
1.2 Rebate and Referral Fee.
Subject always to you being eligible to receive a Rebate or Referral Fee, we will pay you a Rebate or Referral Fee in respect of each of your Prospects that becomes an End User by subscribing to a Vault Service in accordance with this Agreement. Any Rebate or Referral Fee is payable in accordance with clause 3.2 or 3.3 (as applicable) and may be aggregated with any other amounts payable to you under this Agreement.
2. Registration and engagement with Prospects
Each accepted registration of a Prospect will expire twelve (12) months from the date the Prospect was registered. If we consider that you are actively pursuing a Prospect and the registration has expired, then you may re-register the Prospect. An accepted registration may be considered expired prior to the conclusion of any twelve (12) month period if you and we mutually agree in writing to the early expiration of the accepted registration.
Prospects must be registered using such methods as we may specify from time to time. To register a Prospect, you must provide at least the following information about each Prospect: contact first name, contact last name, email, phone number, URL and company name. You must also provide to us any additional information that we may reasonably request.
We can refuse to accept a Prospect that you have registered in our sole discretion.
We will generally accept a Prospect who we determine (acting reasonably) is a new potential customer of ours and who is not, at the time of registration, using a Vault Service or otherwise involved in our active sales process or otherwise one of your affiliates or Related Parties. You must promptly notify us if a Prospect is your affiliate or a Related Party. After the Prospect has been registered in accordance with clause 2.2, we will notify you whether or not the Prospect has been accepted by us. Unless advised at the time of registration otherwise, each accepted registration will expire twelve (12) months from the date the Prospect was registered.
We may, at our sole discretion, accept an order for a Vault Service from a Prospect.
You are ineligible to receive a Rebate or a Referral Fee in respect of a Prospect where: (i) the Prospect is not registered prior to becoming an End User; (ii) we have not accepted your registration of the Prospect; (iii) the Prospect’s registration has expired; or (iv) the Prospect is registered or accepted after this Agreement has expired or is terminated.
You are not eligible to receive a Rebate or a Referral Fee if: (i) you have not registered the relevant Prospect or End User, or any such registration is not accepted or valid in accordance with clauses 2.2, 2.3 and 2.4 (respectively) above; (ii) such Rebate or Referral Fee is disallowed or limited by any applicable law or regulation; (iii) the applicable Prospect or End User to whom the Rebate or Referral Fee relates objects to or prohibits such Rebate or Referral Fee or excludes such Rebate or Referral Fee from its payments to us or our affiliates; (iv) the relevant Prospect or End User has paid or will pay any commissions, referral fees, or other compensation directly to you (Commission); (v) the relevant Prospect or End User participates in the CSP Program or our ‘Partner Program’; or (vi) the relevant Prospect or End User has not agreed to, or is not in compliance with, our Terms of Service. You will promptly inform us if a Prospect or an End User or any of its Related Parties has paid or will pay you any Commission and you will promptly refund us any amounts paid to you by us in connection with a Prospect or an End User or any of its Related Parties that has paid or will pay you any Commission.
In competitive situations with other partners or CSPs of Vault Services, we may elect to provide the Rebate or Referral Fee to the partner or CSP that actually secures the business with the End User (which we will determine in our sole discretion) even if they are registered as one of your Prospects. This may result in you being ineligible for a Rebate or Referral Fee, regardless of whether or not you registered the relevant End User. We might also determine, acting reasonably, that you are not eligible for a Rebate or Referral Fee if we consider that you are no longer actively engaged with the Prospect or End User.
We may permanently discontinue Rebate or Referral Fee payments in relation to any End User should any of the eligibility criteria set forth in this clause 2.5 fail to be met at any time.
2.6 Engagement with Prospects.
If we request, you will provide us with the name and contact information of any Prospect, and facilitate an introduction as soon as practicable after we make such a request. If a Prospect is not valid then we may choose to maintain it in our database and we may choose to engage with such a Prospect.
If we request, you will facilitate our participation on calls with you and various Prospects. We may request to participate on these calls in an effort to help to ensure the quality of your service delivery and for the purposes of managing the CSPs Program.
Where a Prospect wishes to subscribe for a Vault Service, the Prospect must contract directly with us for provision of the Vault Services, which will require them to agree to our Terms of Service.
If you are subject to New Zealand law, you must, before the Prospect enters into a contract with us for the provision of Vault services, notify them about and obtain their consent to you obtaining a Rebate or Referral Fee as commission for you procuring the contract, in accordance with the Secret Commissions Act 1910 (NZ).
You will ensure that each End User has agreed to our Terms of Service before facilitating direct access by, or providing training to, the End User in respect of Vault Services and you will take all reasonable steps to ensure that End Users do not use the Vault Services in violation of the Terms of Service. If you discover or have reason to believe that any End User is making use of the Vault Services in violation of the Terms of Service, or that our Intellectual Property Rights have been or may be infringed in any way, then you must immediately notify us in writing. You must provide all such assistance as we reasonably request from time to time in the enforcement of the Terms of Service or for the protection of our Intellectual Property Rights.
3. Rebates and Referral Fees.
3.1 Requirements for Payment.
In order to receive a Rebate or Referral Fee you must have: (i) agreed to the terms of this Agreement; and (ii) completed all information in our account information form. If any of these requirements have not been fulfilled at the time a CSP Transaction is entered into, then your right to receive a Rebate or Referral Fee arising from any and all CSP Transactions with the associated End User will be immediately and forever forfeited (each, a Forfeited Transaction) and we will have no obligation to pay you any Rebates or Referral Fees in relation to any End User that is or was associated with a Forfeited Transaction. Once you comply with all of the requirements in this clause 3.1(i)-(ii), then you will be eligible to receive Rebates or Referral Fees on CSP Transactions, as long as these CSP Transactions do not involve the same End User associated with a Forfeited Transaction.
Subject to you being eligible pursuant to clauses 2.5 and 3.1 above, you are entitled to receive a rebate (Rebate) in respect of any Prospect which you have registered with us (where that registration has been accepted by us and remains valid in accordance with clauses 2.2, 2.3 and 2.4 respectively) where (i) you place an order for a Vault Service with us on behalf of a Prospect and provide us with all applicable documentation which we require for that Prospect to subscribe for that Vault Service; and (ii) that Prospect subsequently becomes an End User and subject to our Terms of Service. The Rebate is equal to fifteen percent (15%) of the Net Revenue actually received by us from, or on behalf of, that applicable End User over the initial 12 month period after the End User first subscribes for a/that Vault Service.
3.3 Referral Fees.
Subject to you being eligible pursuant to clauses 2.5 and 3.1 above, you are entitled to receive a once-off referral fee (Referral Fee) where you refer a Prospect to us that has not previously been registered with us (but who we would otherwise generally accept in accordance with clause 2.3 if you had sought to register that Prospect with us) and that Prospect is subsequently registered and subscribes for a Vault Service from us (and becomes an End User with us) within 12 months of your referral to us. The Referral Fee is a one off amount equal to five percent (5%) of the Net Revenue actually received by us from, or on behalf of, the applicable End User you referred to us in respect to the first Vault Service subscribed for by that End User over the initial 12 month period after that End User first subscribes for a Vault Service. For the avoidance of doubt, we will not pay you any Rebate in respect of any Prospect for which we pay you a Referral Fee and a Referral Fee is not payable in relation to any amounts we receive after the initial 12 month period referred to in this clause 3.3.
3.4 Payment Terms.
Payments of any Rebates or Referral Fees will be made in the currency in which the Net Revenue to which that Rebate or Referral Fee relates was received (Currency). Any amount will be paid within forty-five (45) days after the end of: (i) each applicable fiscal quarter (in the case of a Rebate); or (ii) the 12 month period referred to in clause 3.3 (in the case of a Referral Fee), provided that you have nominated a bank account that is capable of receiving the Currency into which we are to pay any Rebate or Referral Fee (as applicable) into. You are solely responsible for any bank charges incurred in relation to the payment or receipt of any Rebate or Referral Fee (as applicable). Unless we otherwise decide, such amount will be determined by reference to the Net Revenue we recognise and actually receive from, or on behalf of, the applicable End User(s) during such quarter or 12 month period (as applicable). In the case of a Rebate, prepayment in full by an End User for an annual or other periodic commitment will be recognized by us as revenue quarterly on a pro-rata basis for the length of time the Vault Service was provided for each quarter during the annual term, and you will receive the Rebate on that same quarterly pro-rata basis.
If we update this Agreement to include additional products for which you are eligible to earn a Rebate or Referral Fee, the obligation to pay this additional Rebate or Referral Fee amount will apply starting on the first day of the month when the additional product was included in the Agreement.
You acknowledge that any Rebate or Referral Fee is inclusive of all applicable taxes and duties. If we are required to withhold any tax in respect of a Rebate or Referral Fee, we will deduct the amount of that tax and pay you the remainder (Remitted Amount). You acknowledge and agree that the Remitted Amount is received in full and final satisfaction in respect of the Rebate or Referral Fee (as applicable).
3.6 Payment on behalf of End User.
3.7 Partner Program.
By agreeing to the terms of this Agreement you acknowledge and agree that you will not be entitled to receive any payment in connection with our ‘Partner Program’ in relation to a Prospect or End User for which you may otherwise be entitled to receive a Rebate or Referral Fee. For the avoidance of doubt, we will not pay you any amount that you may be entitled to receive under our ‘Partner Program’ if you are also entitled to receive a Rebate or Referral Fee under this Agreement in relation to that same Prospect or End User.
4. Training and Support
4.1 CSP Training and Support.
We will make available to you, without charge, such webinars and other resources as we deem appropriate in our sole discretion. You will encourage your sales representatives and other relevant personnel to participate in our online and end-user training and the ‘Vault Certification’ program, as well as any training we may offer in new features and upgrades. You will procure that one person in your company becomes a ‘Vault Champion’ meaning that person completes and passes the ‘Vault Certification’ test.
4.2 End User Training and Support.
We will provide any user training purchased by an End User. We may choose to communicate directly with any End User about the use of the Vault Services and any support issues experienced. In the event that standard training is not included in a CSP Transaction, you will be responsible for any training of the End User in respect of a Vault Service that we have consented in writing to you providing. In such an event, you may consult with us with regards to providing training to End Users, but we will not provide direct training to End Users unless we determine otherwise. We reserve the right to charge a fee for the provision of such training.
You must: (i) keep us regularly informed of your marketing plans for Vault Services; (ii) only use promotional information or material in respect of the Vault Services that has been approved or provided by us; (iii) observe all reasonable directions and instructions given to you by us in relation to the promotion and advertisement of the Vault Services; (iv) not publish or employ, or co operate in the publishment of any false, misleading or deceptive advertising material or other representations with regard to us or the Vault Services; (v) ensure all copies of the Vault Services in your possession or control bear our notice of ownership of the Intellectual Property Rights associated with the Vault Services; (vi) generally act diligently as CSP of the Vault Services; (vii) act in good faith at all times towards us and give us such assistance and co-operation as we reasonably request; (viii) at all times conduct your business in a manner which will reflect favourably on the Vault Services and on our good name, goodwill and reputation; (ix) not make any promises, representations or statements or give any condition or warranties or guarantees in respect of the Vault Services (including as to their quality or specifications) except such as are consistent with those which accompany the Vault Services or as expressly authorised by us in writing; (x) not represent yourself as our agent for any purpose, nor pledge our credit or give any condition or warranty or make any representation on our behalf or commit us to any contracts or arrangements or otherwise incur any liability on our behalf in any circumstance; (xi) not alter or interfere with the Vault Services; (xii) observe and comply with all applicable laws and regulations in respect of, and obtain all necessary licences, consents and permissions required for, the storage, marketing and sale of the Vault Services; and (xiii) use any of our trademarks used to describe any of the Vault Services except in connection with your marketing and distribution of the Vault Services.
6. Proprietary Rights
6.1 Intellectual Property.
Nothing in this Agreement: (i) transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party; or (ii) grants any right or licence to use any software or Vault Service, save for the limited right granted by clause 1.1.
We encourage all customers and CSPs to comment on the Vault Services, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Vault Services, without payment to you.
6.2 CSP IP.
You grant to us a limited, non-exclusive, non-transferable and royalty free right to use and display your trademarks, service marks, logos and designs (CSP IP) in connection with this Agreement.
6.3 End User’s Proprietary Rights.
As between you and an End User, the End User retains the right to access and use the End User portal associated with the Vault Services regardless of whether you placed the order with us for an End User. The End User will own and retain all rights to the End User Data.
7. Subscription Term, Termination, Suspension and Expiration.
This Agreement will apply until terminated in accordance with this clause 7.
7.2 Termination without Cause.
Both you and we may terminate this Agreement on sixty (60) days written notice to the other party.
7.3 Termination of Inactive CSPs.
If you are an Inactive CSP, then we may terminate this Agreement on ten (10) days written notice to you. If, within seven (7) days from the date of such notice, you present us with a plan that will result in you becoming an Active CSP, we will consider this plan in good faith. We may then choose to notify you in writing that we withdraw our notice of termination, in which case this Agreement will not terminate.
7.4 Termination and Suspension for Cause.
We may terminate this Agreement and/or suspend your or the End User’s access to the Vault Services immediately if: (i) we consider that you have breached this Agreement or any applicable law or regulation; (ii) you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (iii) we consider that you have breached any other agreement that you have with us; or (iv) we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our affiliates, Related Parties, our Prospects or customers or any of the Vault Services.
7.5 Effects of Termination or Expiration.
Expiration of this Agreement, and termination of this Agreement without cause by us, shall not affect our obligation to pay you any accrued Rebates or Referral Fees, so long as the related payment by the End User is recognised by us within thirty (30) days after the date of such termination or expiration.
In the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Rebate or Referral Fee will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive a Rebate or Referral Fee prior to the date of termination. For the avoidance of doubt, we are not obliged to pay to you, and you are not eligible to receive, any amount whatsoever after termination of this Agreement in these circumstances.
In the event of suspension in accordance with clause 7.4, we will be under no obligation to pay, and you will have no right to receive, any Rebate or Referral Fee in respect of any payment by an End User that we recognise as being received during the period of suspension.
Upon termination or expiration: (i) any Prospect you have registered will not be considered valid, and we may choose (in our sole discretion) to maintain it in our database and engage with such a Prospect; (ii) you will immediately discontinue all use of our marks, and will remove all CSP information and references from your website(s) and other collateral; (iii) you will immediately stop representing yourself as being in any way associated with Vault; and (iv) you will, at your own expense, forthwith return to us or otherwise dispose of (as we may instruct) all software, software licence keys, confidential information, technical and promotional materials and other documents whatsoever sent to you and relating to the Vault Services or our business.
Termination or expiration of this Agreement shall not cause any other agreement between us and you or us and an End User to be terminated.
7.6 Survival of Provisions.
The following provisions survive termination of this Agreement: clause 6 (Proprietary Rights), this clause 7 (Termination, Suspension and Expiration), clause 9 (Confidentiality) and clause 10 (General).
8. Representations, Warranties and Indemnities.
a. Each party warrants that it has the legal power and authority to enter into this Agreement and that this Agreement will be legally binding and enforceable against it.
b. Save as expressly provided in this clause 8, all warranties and guarantees provided for by statute or implied which may lawfully be excluded, are hereby excluded.
c. You represent and warrant that: (i) you will procure that each Prospect agrees to the Terms of Service prior to or at the time of subscribing for a Vault Service and that you will agree to the Terms of Service in respect of any Vault Service you subscribe for on behalf of a Prospect; (ii) your participation in this CSP Program will not conflict with any of your existing agreements or arrangements; (iii) you own or have sufficient rights to use and to grant to us our right to use the CSP IP; (iv) you have sufficient rights and consents to provide any Prospect data (including personal information and sensitive information, as those terms are defined in the Privacy Act 1988 (Cth) or the Privacy Act 1993 (NZ) as applicable) to us for use by us of that data in accordance with this Agreement (including for sales and marketing purposes); (v) you have the resources, skills, knowledge, experience and abilities necessary to perform your obligations under this Agreement; and (vi) you will at all times comply with all applicable laws and regulations and hold all necessary approvals, rights and licences in performing your obligations under this Agreement and in any of your dealings with respect to the Vault Services.
d. You warrant to us that each warranty contained in this Agreement is correct and not misleading on each date between (and including) the date of this Agreement with you (being the date you agree to these terms or the date you sign up to, or participate in, the CSP Program) and termination of this Agreement (as if made on each such day).
e. You will indemnify and hold us and our Related Parties harmless against any and all Loss arising directly or indirectly from: (i) you, any of your Related Parties and any Prospect use of a Vault Service; (ii) your participation in the CSPs Program; (iii) you breaching this Agreement (including any warranty given under this Agreement); and (iv) you breaching any applicable law or rights of a third party.
f. To the maximum extent permitted by law, we will not be liable to you or any third party (including Prospects and End Users) in contract, tort (including negligence) or otherwise, in respect of any Loss resulting directly or indirectly from the access or use of a Vault Service.
a. Subject to clause 9(b), you must keep information exchanged between us confidential, and must not make or approve any communication about it without our prior written approval.
b. You may make disclosures in relation to this document to: (i) your professional advisers and bankers if those persons undertake to keep confidential any information so disclosed; or (ii) comply with any applicable law or stock exchange if you first provide us with a reasonable opportunity to comment on the form and content of the proposed disclosure.
a. The “General” clause in the Terms of Service is repeated here in full with any necessary modifications.
b. No agency, partnership, joint venture or employment is created between us and you as a result of this Agreement. You are not authorised to create any obligation, express or implied, on our behalf.
Version One: 22nd December 2016
Version Two: 26 April 2017